In divorce, mediation is a wonderful model and it is far better than going to court. It is much less expensive, much quicker, and can set the tone for future cooperation between co-parents. It also feels better to decide on your own settlement and parenting plan than to have it imposed on you by a judge.
Mediation works by trying to work out agreements between the parties. Typically no one gets exactly what he or she wants and it is a process of compromise, but at the end of the day, the hope is that both parties are reasonably comfortable with the agreement.
This works great for money and property, but not so well for children.
When divorcing adults have disputes over money and property the mediation process is quite simple. If there is $10,000 to split the mediator might suggest a 50-50 split. If one party wants the piano, the mediator might suggest that the other party takes the couches instead.
When divorcing parents have disputes over parenting plans, traditional mediation often approaches the problem in the same way. Mediators ask each parent what he or she wants and then tries to broker an agreement. The problem is this: children are not couches or pianos. They are human beings with independent rights, and they are the innocent victims in families that are splitting up.
Parenting plans should NOT be focused on what the parents want; they should be focused on what the children need. Of course, parents want what is best for their children, but in the emotional turmoil of a divorce it is often difficult for them to maintain objectivity. So parenting plans should always be explicitly about what the children need and for this reason negotiating the parenting plan should be different than any other part of the divorce settlement. This is where “blended” or “advisory” mediation comes in.
In advisory mediation the mediator (family dispute resolution practitioner) is ALSO an expert in child development and child psychology (preferably a child psychologist). Instead of starting out by asking the parents what they want, the mediator will start out by getting as much information about the children as possible. After talking extensively with both parents, reviewing documents, possibly meeting with the children and talking with teachers, doctors, and others, the advisory mediator will prepare a proposal for a parenting plan that is focused on the best interests of the child. As with all mediation, the mediator has no power and the parents can completely reject the proposal. But it gives the parents an independent starting point for their negotiation that is based on what is best for the children, instead of being based on what either of them wants. Then parents work with the advisory mediator to make changes and modifications to the proposal until they are comfortable.
It’s wonderful that in Australia, mediation is now easier for divorcing parents to access. But the children of divorcing parents need to know that when their future is being negotiated, their best interests are central to all discussions. This is why the Commonwealth Govermentt should legislate to ensure that all parenting plans are developed using a model similar to ‘advisory mediation’ – where the starting point is an independent assessment of what is best for the children.