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Consider mediation of child custody disputes - part 2

In the first part of this two-part series, we discussed a recent article by a New York family mediator calling attention to the acrimonious child custody dispute between Halle Berry and Gabriel Aubry, the father of her two-year-old daughter. Many people have been surprised by the acrimony of that dispute, which has included allegations of poor parenting by both sides and which forced Berry into abandoning her latest film project so she could devote all her energies to the litigation.

While the publicity has been disconcerting, no one outside the process can possibly know the truth of any allegations being made by Berry or Aubry, and we in no way wish to cast aspersions. Unfortunately, however, the problems being experienced by Berry and Aubry are all too common among parents going through a divorce or paternity battle.

Nevertheless, most parents desperately want to avoid a stressful, expensive child custody battle. Most simply want to get through the existing difficulties in their relationships, learn how to work in a shared parenting arrangement, and promote the best interests of the children.

Is there an amicable path to resolution in child custody disputes? The author of the article, New York mediator Abby Tolchinsky, says yes.

Family law mediation can change the dynamics in a child custody dispute

Divorcing or unmarried fathers and mothers often start out with good intentions, but with few tools for working effectively with the other parent. Sometimes, the court process itself -- the litigation mindset and the adversarial process -- can get in the way, say proponents of alternative dispute resolution processes such as mediation.

In Georgia, mediation is mandatory in child custody cases. But how does it work?

Mediation is a type of negotiation moderated by a neutral third party. The parents can be represented by lawyers, but instead of a judge there is a mediator who will not rule on any issues. The mediator's job is to help the parties negotiate their own resolution on their own terms. As long as the final agreement is legally acceptable, it can be incorporated into a court order once the mediation is complete.

Importantly, if the parents cannot resolve their dispute through mediation, the discussions during the mediation cannot later be used against anyone in court.

The first step is for mom and dad to sit down and discuss what they see as their roles as parents, their goals, and their concerns. It doesn't matter if those concerns would be admissible in court; the rules of evidence are relaxed. Experts such as child therapists, child custody experts and others can even be brought in to help.

If the parents start veering off into nasty accusations or blame, the mediator's job is to help them refocus on their real goal: the best interest of the children. Most parents have the best intentions, says Tolchinsky, but the stress and anger of a break-up or divorce can sometimes derail their judgment.

No one wants to go through a nasty child custody battle. Parents don't want to put their kids in the middle of their problems. Sometimes, such as when there has been domestic abuse, litigation is necessary for the protection of everyone involved. Mediation can, however, help many people get past their anger and the litigation mindset and develop a child custody and visitation plan that works for them.

Source: The Huffington Post, "Kids in the Middle," Abby Tolchinsky, February 8, 2011

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