For many estranged parents, mediation should be the first or second step toward resolving plans for their children. Filing a petition to get the clock ticking on deciding custody, visitation, and/or support is sometimes a good first step. After that, mediation works best for many. Unfortunately, many people miss this opportunity because they do not know what mediation is or how it works.

Mediation is often confused with arbitration. The two dispute resolution procedures are very different. In mediation, the parents negotiate and the parents make the decisions. There is no judge, jury, or other authority to tell them what to do. If the mediator succeeds in helping them to negotiate constructively and reach an agreement that is truly OK with both parents, then they can sign it  and are likely to honor its terms. If either wants to do so, he or she can ask a Court to incorporate it into a Order, which makes it easier to enforce the Agreement if one party later gets careless about something in it.

In arbitration, the two parties each tell the Arbitrator what they think is best for the kids and why, and then the Arbitrator tells them what they must do. When they enter arbitration, the parents give the Arbitrator the same authority that a judge has. They are, however, avoiding the expense and anguish of a trial.

Another dispute resolution procedure available to estranged or divorcing parents is neutral case evaluation. For this, each party presents evidence and makes his or her arguments to a Case Evaluator who is required to act as a Neutral -- not to be on either parent’s side. The Evaluator is often a retired judge. Sometimes it is a very experienced attorney who may, for other clients, provide other kinds of services. The Neutral Case Evaluator then tells both parties, based on their presentatons, what rulings the Evaluator would make if they were the judge for the case. The result is just information -- probably very useful information, but not a binding decision. With this new information, the parties may return to mediation and feel better able to make decisions together.

If all else fails, the parties can litigate the issues. They may then find that they are just spectators in their own case, while their attorneys take positions, present evidence, and make arguments. Some attorneys tell their clients not to try to negotiate with the other parent. They want all communication to go through the lawyers. The Court gives the attorneys a limited amount of time for presenting their cases. Then the Judge tells the parents what they must do.

Depending on the facts of the case, any of these processes may be appropriate -- mediation, arbitration, neutral case evaluation, negotiation through attorneys, or litigation. My goal in this article is simply to help people understand that a variety of dispute resolution procedures are available. How the process works and who makes the decisions vary. In most cases, I think it is better for the parents to make the decisions than for a stranger to impose decisions on them. Your comments, stories, and other responses are welcome.

This article is for informational purposes only. The author is a Supreme Court Certified Family Mediator. She is not an attorney. Additional information is available at http://FairfaxMediator.com.