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Why Biased Mediators Are Essential In Child Custody Disputes

From Erica Becks’ Cure for the Common Conflict.

Let’s face it; most humans are hard-wired to be somewhat self-interested. In many ways, self-interest is a survival mechanism, which ensures that our needs are met first. However, the purpose of this article is not to decide whether we as humans should or should not be self-interested. What I would like to explore, is what happens when self-interest begins to hijack the child custody mediation process?

When clients begin the mediation process, I review the ground rules, explain the process and then tell them I am biased. Yes, you read right. I am biased. As a mediator, I act as a neutral, and therefore, I do not offer my own opinions or judgments about my clients’ actions or decisions. The only exception to this rule is when a child’s best interest comes into play. When I first meet with couples, I inform them that I have two professions; I am first a child advocate, and second a mediator. As an aside, my profession of origin, if you couldn’t already gather, is social work. And while I am generally able to separate the teachings and philosophies of one profession from the other, I have admittedly held onto some of my social work biases. One of which, being the notion that a child’s emotional, physical and psychological well-being is of utmost importance in any decision-making process that involves them. So, what exactly does this look like in the context of mediation?

Well, I generally begin the session by asking the couple to place a picture of their child on the table, which will remain there throughout the session, so that there is a constant reminder about the purpose of the mediation. As couples are exploring different options for custody and visitation arrangements, I encourage them to brainstorm various scenarios from the mindset of their child. I typically ask the following questions: “Where has your child expressed an interest in living?” Note, I do not ask, “Where you want your child to live?” I then ask them, “Why do they (the child) say that they wish to live there?” and “What is it about that setting that puts the child at ease?” or “Which environment provides the least amount of disruption from their normal daily routine that they have become accustomed to?” I sometimes ask, “Which home is closest to their school and other important extracurricular activities?” Followed by, “What is the optimal number of exchanges during the week for the child?” and “Are they (the child) able to understand the schedule that you are proposing?” (As an aside, the topic of schedule exchanges is often the most heated between couples. Frequently, parents create schedules which are too complicated to follow. At which point, I generally share my feelings of confusion with them by saying, “I am having a hard time following this proposed schedule, and I am concerned about your eight year old being able to comprehend this as well. What are your thoughts about this?”). I inform my couples that it is within their right to disagree with my questioning, but it is always within my right to ask the questions.

Ultimately, parents are the authority on what the proper upbringing of their child should be. However, parents often become short-sighted and seduced by self-interest, sometimes fueled by their desire to pay child support, the separation anxiety they feel when their child is not present, and even the anger and resentment that they feel towards the other parent. It is my job to help them, in an indirect manner, explore and uncover their own biased interests, without judging them. Often, just the simple process of asking them child-focused questions enables them to step outside of themselves, if only for a fleeting moment. It is during this moment of clarity that I seize the opportunity to guide them in the direction towards decision-making which truly gives their child’s interest the priority it deserves. I don’t taut myself as an authority on a child’s well-being, because after all, I am not a parent myself. But what I do have, is a clear understanding of the negative effects the divorce process can have on a child, when their needs have been largely ignored. And if I can help prevent one less child from ending up emotionally scarred by the consequences of self-interested decision-making on the part of their parents, then I feel that I have done my job as both a mediator and a child advocate.


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