Best Practices for Custody Mediation 2014

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Best Practices for Custody Mediation

2014

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TABLE OF CONTENTS

INTRODUCTION ... 3

CUSTODY MEDIATION PROGRAM BEST PRACTICES ... 4

1.

Judicial Leadership ... 4

2.

Local Rules for Custody Mediation Programs ... 4

3.

Neutral Role of the Custody Mediator ... 5

4.

Cases Requiring Special Consideration ... 7

5.

Written Parenting Agreements ... 8

6.

Active Case Management, Recordkeeping, and Court Collaboration ... 10

7.

Specialized Training and Professional Development for Custody Mediators ... 10

8.

Process and Outcome Assessment of Custody Mediation ... 11

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INTRODUCTION

In 1983 the North Carolina General Assembly funded a pilot Custody and Visitation Mediation Program in Mecklenburg County. In 1989, the General Assembly passed legislation to expand custody mediation statewide under the guidance of an Advisory Committee, whose members would be appointed by the Director of the North Carolina Administrative Office of the Courts (NCAOC). As of 2013, North Carolina has Custody and Visitation Mediation Programs in 42 judicial districts that serve all 100 counties. The North Carolina Child Custody and Visitation Mediation Program (hereinafter “Custody Mediation Program”) has been the subject of numerous evaluations and research since its inception. The NCAOC conducted a study of the program, The Child Custody and Visitation Mediation Program in North Carolina: An Evaluation of Its Implementation and Effects, between October 1997 and December 1999 when custody mediation was only provided in 55 counties. The evaluation involved analyzing data from court cases, surveying program users, and comparing data to districts without a mediation program. The results indicated a substantial reduction in the number of contested child custody cases that went to trial and a high level of user satisfaction that continued years after completing custody mediation.

In 2008, Wake Forest University professors published two articles analyzing child custody cases that were resolved in 2002 in Forsyth County. In It's the Conflict, Stupid: An Empirical Study of Factors that Inhibit Successful Mediation in High Conflict Cases, the researchers found that contact with the Custody Mediation Program increased parents’ chances of resolving their dispute without a trial, even when the parents did not reach an agreement in custody mediation. In Back to the Future: An Empirical Study of Child Custody Outcomes, the researchers found no evidence to support concerns that mediation pressured mothers into agreeing to joint custody arrangements.

National and international research also indicate that participation in custody mediation provides the following benefits:

 Increases parents’ self-determination and co-parenting communication

 Empowers parents to identify and promote their children’s best interests

 Reduces the emotional toll on families in litigation

 Reduces the associated financial costs to all involved

The research cited above, along with 30 years of field experience, has enabled the NCAOC to identify essential practices needed for the successful planning, implementation and evaluation of custody mediation in North Carolina district courts. Custody mediation programs that adhere to these practices are best able to reduce the stress and anxiety families – and especially children – experience in custody disputes by providing an alternative to litigation. Please note the best practices are designed to supplement, not replace, the North Carolina General Statutes 7A-494, 7A-495 and 50-13.1, Standards of Practice for Mediators in the North Carolina Child Custody and Visitation Mediation Program, and the Uniform Rules Regulating Mediation of Child Custody and Visitation Disputes.

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CUSTODY MEDIATION PROGRAM BEST PRACTICES

1.

Judicial Leadership

The most important element of a successful Custody Mediation Program is strong judicial leadership at every stage of development, implementation, and program operation. Custody Mediation Programs are only established in a district at the initiation of the chief district court judge; in part because the judge understands the need for custody mediation, and must demonstrate commitment to the program in order to build the support required for an effective program.

Chief district court judges are responsible for hiring well-qualified custody mediators and

secretarial assistants to carry out the work of Custody Mediation Programs. Their skill in providing professional mediation services and management of the program is paramount in establishing a well-respected and highly utilized program. Judicial leadership is also needed to invite, foster, and model a collaborative relationship with numerous stakeholders and court personnel. This

collaboration is important for developing local procedures and rules as well as resolving challenges that arise in the district. Once custody mediation is established in the district, the chief district court judge must continually monitor the domestic court process to make certain all eligible parties are participating in custody mediation and resolving their custody disputes in an effective and timely manner.

Implementing custody mediation in a district often requires a change in the court culture – a shift from adversarial litigation to embracing alternative methods for resolving disputes. The chief district court judge leads this charge by actively promoting adherence to local rules and immediately addressing any problems that threaten the credibility and enforcement of rules or court process. Successful Custody Mediation Programs require chief district court judges who are responsive to feedback and invested in well-run programs.

Once custody mediation is well established in a judicial district, active judicial leadership is required to provide regular review and modification of local rules, ongoing advocacy with stakeholders and the public for any changing needs, and guidance to mediators and court staff to effectively address issues that arise in the management of custody lawsuits. Strong judicial leadership is the hallmark of every successful Custody Mediation Program in North Carolina.

2. Local Rules for Custody Mediation Programs

Because the law requires that any action involving the contested issue of the custody and visitation of a minor child must be set for mediation when there is an established Custody Mediation Program, local rules that specifically address custody mediation are critical to the successful integration and enforcement of custody mediation in a district court. Local rules are the foundation that ensures the public’s access to custody mediation. They also establish effective, efficient, and predictable procedures for all custody cases beginning on the date the custody lawsuit is filed and continuing until the minor child reaches the age of 18.

It is essential that the chief district court judge appoint a local rules committee to develop rules that not only provide a clear understanding of how custody mediation fits into the court process, but also to have the necessary buy-in from key stakeholders. The committee usually comprises representatives of family law attorneys, district court judges, custody mediators, clerks of court, and any judicial staff, such as trial court administrators / coordinators or family court

administrators. In districts with an established Custody Mediation Program, periodic review and revision of local rules are encouraged in order to keep current with systemic changes that impact case flow, program effectiveness, and any changes in the law.

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The following procedures need to be clearly addressed in local rules:

 How parties are referred or assigned to attend custody mediation orientation and mediation

sessions

 The court process for discovery, a party’s failure to attend custody mediation orientation

and / or mediation sessions, filing motions to modify custody, and motions to show cause for contempt

 The confidential nature of custody mediation and how that impacts litigation

 How parties and mediators can exempt cases from custody mediation

 How cases in mediation can be expedited for good cause, such as emergencies or out-of-town

travel

 How custody mediation cases are formally disposed and how the various methods of

disposition are communicated to the court so that the next appropriate court action will be scheduled

 The identification of any time standard goals that the district has adopted

 How parties access custody mediation after a custody order or parenting plan has been

approved by the court

To maintain the integrity of local rules and the custody mediation process, it is important that all chief district court judges enforce both mandatory participation in custody mediation and local rules. Without consistent enforcement, the public’s trust and confidence in the system is

diminished and court clients will question both the court’s commitment to the benefits of custody mediation and the court’s ability to provide a meaningful alternative to the adversarial process.

3. Neutral Role of the Custody Mediator

A mediator is an unprejudiced third party who encourages and facilitates a discussion that may result in the resolution of a dispute. The mediator accomplishes this while remaining balanced and without prescribing what the resolution should be. Professional mediators are trained to guard against bias for or against clients due to the clients’ backgrounds, personalities, or conduct during mediation. Fundamental to the role of custody mediator is the recognition that their chief commitment is to the participants’ self-determination, informed decision making, and the mediation process.

Mediators in the Custody Mediation Program track and report various statistics, including the number of signed parenting agreements, to the NCAOC. Mediators could potentially perceive this as pressure to demonstrate “success.” Therefore, it is imperative that mediators uphold their commitment to the participants and the process, avoiding any practice that attempts to improperly influence parties to agree. Mediators view success as the productive exchange of information between parties. When their supervisors and court partners support this perspective, mediators are better able to focus on their practice and the parties. Custody mediators are expected to disclose any relationship between themselves and any participant prior to mediation. Regardless of the clients’ wishes, mediators recuse themselves whenever a real or perceived conflict of interest arises.

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a. The Orientation Session

The role of the mediator at the beginning of the process is to educate and orient clients to prepare for mediation. Generally during an orientation session and during the introductory stage of mediation, the mediator helps the clients understand:

 What custody mediation does and does not address

 The benefits of resolving most parenting disputes through custody mediation versus a

court hearing

 The role of the mediator

 The parties’ obligations to the court and consequences for not meeting these

obligations

 The consensual nature of any agreement through the Custody Mediation Program

 The confidential nature of mediation and the limited statutory exceptions to that rule

 The inappropriateness of children’s participation in the Custody Mediation Program*

 The importance of obtaining legal review of any drafted agreement and the

opportunity to seek advice from anyone else outside of the mediation process regarding the draft agreement

 The particular importance of seeking legal advice if a non-parent, third party is involved

in the action

 The ability for any party to end mediation at any point after complying with the

requirement to attend

 When mediation is inappropriate and how parties can apply for exemptions to

mediation

* In some settings, mediators may include children in the mediation session. Mediators in the Custody Mediation Program have a limited number of sessions to mediate and would therefore not be able to adequately include children in the session in a way that would protect and benefit the children. Additionally, the custody mediators have not been trained in the specific methods of mediating with children. When parents wish to hear and explore their children’s concerns before finalizing arrangements in a parenting agreement,

mediators encourage parents to consult with independent family counselors.

b. The Mediation Session

Since client self-determination is a cornerstone of any mediation, mediators first assess for the appropriateness of mediation and the ability of both parties to advocate for their concerns safely. Once appropriateness is established, the mediator structures each session to enable the parents to:

 Define the best interests of their children

 Explore their own issues and concerns

 Search for plans that address the concerns sufficiently

Mediation sessions are limited to the parties listed on the action. Including other adults in the session will only take place at the mediator’s discretion and with the full agreement of the parties on the action. The inclusion of children in the session is discouraged for the reasons described in the asterisked note above.

When distance or circumstance (such as hospitalization, military training, etc.) make attendance at the custody mediation office difficult, mediators are able to utilize WebEx video conferencing. Video conference mediations should be used in place of telephone

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conference mediations. Telephone mediations occur with one party in the office, creating a real or perceived imbalance between the parties. WebEx video conference mediations allow all parties to see one another and communicate more completely. Each district is encouraged to design and follow clear standards for when to offer WebEx video conference mediation. The same rules that govern an in-person mediation session also apply for a video conference, such as no other parties will be allowed to attend, the session will not exceed two hours, and children will not be present, to name a few.

c. Mediators are Responsible for the Following:

 Assessing whether mediation is appropriate

 Facilitating a productive exchange of information and ideas so that clients can explore

their parenting options

 Encouraging clients to consult with independent experts when appropriate and return

to mediation with this information

 Writing a parenting agreement that addresses the children’s best interests as the

parties have defined them

 Managing the set up and direction of the session to maximize everyone’s safety and

ability to communicate productively

4. Cases Requiring Special Consideration

Custody mediators employ various skills and techniques to assess whether it is appropriate to proceed with mediation or not. Caucusing with each client (with their permission) often assists mediators with this task and contributes to a safer environment for this determination.

a. Domestic Violence Protective Orders (DVPO)

The NCAOC Domestic Violence Best Practice # 8 asserts that the courts should consider the

safety and well-being of children in all aspects of domestic violence cases and make custody

determinations. If clients then file a Chapter 50 custody action, the DVPO should be

reviewed by a judge to determine the appropriateness of custody mediation. (Criminal domestic violence cases and / or cases where there has been a violation of the DVPO

should be waived.) Any parenting agreement that results from custody mediation must

have the DVPO attached to it when submitted to the judge for his or her review and signature.

b. Department of Social Services Investigations

When the Department of Social Services (DSS) is actively investigating one or both parents for abuse, neglect, or dependency, custody mediation is inappropriate and often

counterproductive for the family. Therefore, mediation should either be waived or

suspended until the investigation is complete. When DSS has closed their investigation and determined that the allegations of abuse, neglect, or dependency are unsubstantiated, the mediator may proceed as usual with the case.

c. Cases Referred from Juvenile Court

As per G.S. § 905.1(d), custody mediation is a possibility where the juvenile court has

entered an order of custody, retained jurisdiction, and then parties subsequently file a motion for review of the issue of visitation. In these instances, the mediator is best able to facilitate a productive session when the referring judge has clearly indicated what can and cannot be agreed upon in mediation. For example, the judge should indicate whether overnight visitation is allowed and/or if visitation must be supervised. This saves mediator time and clarifies for family members the scope of potential agreements.

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5. Written Parenting Agreements

G.S. 50-13.1(g), (h) establishes that a written mediated parenting agreement, signed by both parties and by a judge, is a court order, enforceable as any other order of the court. Because the parenting agreement is written from agreements reached in mediation, the mediator will use less legalistic language, include details of the parent’s arrangements and preferences, and use less adversarial terminology. Just as the parents are not referred to as “plaintiff” and “defendant” in mediation, terms like “time sharing” and “decision making” are better than “custody” and “visita-tion,” which can be inflammatory and actually undermine the agreement and the cooperation it hopes to foster. Careful word choice is a method that custody mediators consciously employ during mediation sessions, and the same is true of the text used for the resulting parenting agreements.

Mediators should only draft parenting agreements when the parties have reached an agreement and are ready to review a written draft in preparation for its submission to the presiding judge. If the parents are not in agreement upon the residential arrangements and decision making aspects required for a parenting agreement, the mediator should not compose a draft. Mediators will not share and should destroy unsigned drafts and any of their notes from the session since they are the product of a confidential mediation session.

The major domains addressed in each full parenting agreement are:

a. Decision making

 Major medical treatment of a non-emergency nature

 School enrollment

 Religious education

 Extra-curricular commitments for children that fall on the parents’ shared time

b. Residential Arrangements

 Specific details regarding the times the children will be with each parent

 Holidays and special occasions the children will spend with each parent

 Transportation between the parents’ homes and, if necessary, how they will exchange

care of the children (place, time, people present, etc.)

 Any move away from a parent’s current residence that would make the residential

arrangements difficult to fulfill requires a return to mediation at least 30 days in advance of the proposed move

c. Communication and Information Sharing

 How regular and urgent information will be exchanged between parents

 What information must be communicated, i.e. when taking a child out of state

overnight, the parents agree to inform the other party and exchange pertinent information to be used in case of an emergency

d. Additional Parenting Provisions

 The ability to return to mediation voluntarily if problems arise or circumstances change

 Any additional parenting arrangements agreed upon by the parties

While it is important for mediators to serve as agents of reality as they explore underlying concerns and resulting agreements, it is equally important that additional parenting provisions are founded on client self-determination and fit each unique family system.

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Mediators skillfully identify the concerns of the parties while continuing to empower them in crafting the terms of their arrangements. Certain questions may help preempt future disputes or disagreements between the parents. To troubleshoot without identifying actual concerns, a mediator may ask the parties the following questions:

“If something were to hinder the success of your agreement, what would it be?” “What informal or unspoken agreements do you observe that you might want to include in your written agreement?”

If a judge wishes to have specific parenting issues addressed or included in parenting agreements, mediators should present this information to the parties in a way that does not jeopardize impartiality. Disseminating information at the orientation session or through the family court office, rather than during mediation sessions, can protect mediator impartiality. Attaching a separate order with parenting guidelines allows the mediator to

retain the necessary distance from a specific agenda.

When parents agree to unusual residential arrangements or schedules due to specific circumstances, the mediator should, with the parent’s permission, include the

circumstances and rationale behind the agreement. For instance, shift work or residence in a treatment recovery home may prevent parents from having their children stay overnight until the circumstances change. It is therefore important to include the reason why the residential arrangements are unusually limited for one parent as well as the parents’ intention to modify this plan when the circumstances change.

When extenuating circumstances prevent a family from considering the specifics required in a parenting agreement, a temporary plan often allows them to take steps that will result in a more complete plan. For instance, when a parent is reuniting with a child he or she has not been involved with for a considerable period of time or when the family is assessing a newly sober parent’s ability to maintain their sobriety and care for children, a step-by-step plan allows families to create some success on which to build. Temporary parenting agreements should be used only when these kinds of extenuating circumstances exist and the agreement should not exceed six months. A return to mediation date should be included in the temporary agreement. When temporary agreements are utilized, expiration dates should not be included except in some military cases or in other special circum-stances. Language in the temporary agreement should explain that the temporary agree-ment will remain in place until it is replaced by another custody agreeagree-ment in mediation or by order of the court. Ideally, a status conference should be set following the temporary agreement for the assigned judge to assess whether the parents should return to mediation to work on a permanent parenting agreement or if they should set a court date.

The Uniform Rules Regulating Mediation of Child Custody and Visitation Disputes require

the mediator to mail a copy of the draft parenting agreement to the parties and to promote review of the agreement with their attorneys before signing. If mediators are sending the draft electronically, all parties and their attorneys should be included in the email and all parties and their attorneys should be included in any follow-up to the original email. The custody mediator is the designated manager of the mediation process. Therefore, regardless of where the parties sign the parenting agreement, it is imperative that the signed document return to the mediator who will bring the agreement to the designated district court judge for review and signature. This also ensures that the mediator will be able to accurately track how many agreements were signed by both parties and the judge. Once signed by the judge, the mediator files the agreement with the clerk of court. After

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filing, the custody mediator is responsible for sending the agreement, along with a certificate of service, to all parties.

6. Active Case Management, Recordkeeping, and Court Collaboration

Effective case management moves cases through the court system in a timely and predictable manner consistent with the district’s local rules or prescribed timelines. Efficient case

management prevents case backlogs and better serves stakeholders and court consumers. The process of active case management will differ from district to district depending on the presence of family court, the local rules, the number of cases filed, and available court resources and services.

Cooperative relationships between the Custody Mediation Program, the legal representatives, and relevant court staff facilitate efficient case management. The chief district court judge should periodically convene review meetings to acquaint new lawyers and court personnel with the program. Review meetings also afford the opportunity to discuss changes in the program’s procedures with all stakeholders, fostering an ongoing, cooperative environment.

In districts with an established family court, a collaborative relationship between the Custody Mediation Program and family court is imperative for proper case management. When custody mediators and family court case managers track and share information regarding the status of a case, all stakeholders are better served. Tracking and sharing information can best be

accomplished when both the Custody Mediation Program and family court use CaseWise, a civil case management tool which contains domestic case information imported from the Civil Case Processing System (VCAP) application, to manage and track cases.

In a family court district, custody mediators strive to meet time standards recommended by the family court advisory committee. As a best practice, districts without family court should strive to achieve these goals as well. As with all time standards, exceptions arise and flexibility is necessary in order to best serve families. For example, it is not uncommon in mediation for both parties to request time to consult with professionals such as therapists, child development specialists, or substance abuse counselors before returning to mediation. If the timelines are too strictly applied, families who could reach an agreement in mediation may not benefit from the program.

In districts without family court, collaborative relationships with relevant court staff including the trial court administrator, the trial court coordinator, the district court judges’ staff, and the clerks are key to the coordination of unified case management. Using CaseWise to manage cases in these districts facilitates this coordination.

Once a case is complete in mediation, the mediator should dispose of any drafts, notes, or other extraneous materials in a manner which preserves confidentiality. Mediators should not provide copies of drafts to any parties or attorneys once the case is closed in mediation. The only paperwork that should remain in the folder is intake forms, a copy of a signed parenting

agreement, and any other local forms that indicate the case status. The Standards of Practice for

Mediators in the North Carolina Child Custody and Visitation Mediation Program calls for

mediators to preserve the records of each case for a period of three years in a locked storage cabinet.

7. Specialized Training and Professional Development for Custody Mediators

Effective mediation necessitates that mediators are qualified per the General Statute and trained

in accordance with the Standards of Practice for Mediators in the Mandatory Custody Mediation

Program. Custody mediation is a specialized profession which requires specific skills and

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Custody mediation requires sensitivity to the continually changing personal and societal factors that contribute to the stress of families appealing for help. Ongoing professional training to keep mediators current in critical areas such as domestic violence, child development, substance abuse, personality disorders, and post-traumatic stress syndrome is imperative for continued delivery of meaningful and comprehensive mediation services. Therefore, the NCAOC Custody Mediation Program recommends and offers the following training resources:

 Annual training symposiums

 Regional meetings to discuss cases, policies, and programmatic concerns

 WebEx presentations

 Case consultation by telephone

 Newsletters to share and expand upon recent initiatives

 Informational library of DVD trainings, professional journals, and books that can be mailed to

mediators upon request

To complement the specialized training custody mediators receive, the NCAOC custody mediation staff provides professional development opportunities to mediators through observation, co-mediation, and assessment of mediation sessions. Using an assessment tool, NCAOC staff or mentors evaluate skills used by the mediator and the parties’ reactions to the mediator’s technique and language through each stage of the mediation process. The feedback from this process allows mediators to grow professionally and enhance their knowledge and skills. Mediators are encouraged to take advantage of these training and professional development opportunities and to co-mediate with mediators from other districts.

8. Process and Outcome Assessment of Custody Mediation

Assessing the efficiency and effectiveness of Custody Mediation Programs is a shared

responsibility of the NCAOC and individual judicial districts. Custody mediators enter mandatory data in CaseWise on cases ordered to mediation, including cases referred, cases mediated and not mediated, and agreements drafted and signed. Mediators should enter mandatory information into CaseWise on a regular basis to accurately reflect the status of cases in the mediation process. At a minimum, mediators should ensure that their CaseWise entries are up to date on a monthly basis.

The NCAOC aggregates and includes this information in reports. This activity information is limited in its ability to measure effectiveness for courts or communities. Assessing the impact of custody mediation on local courts, legal culture, and communities is an important measure of the program’s success that must originate in the various courthouses across the state.

Local stakeholders are uniquely situated to define important custody mediation issues and engage in an assessment process that incorporates the culture of that district to obtain the best

outcomes. The chief district court judge, local domestic court judges, and custody mediators should meet periodically to discuss what outcomes to measure and how to accomplish those measurements. Reviewing statistical data can reveal local trends and encourage the improvement of outcomes and adjustments.

When assessing program efficiency, mediators and judges should consider the percent of referrals from custody filings, the time between the referral and the orientation, the time between the orientation and the mediation, and the extent to which waivers are used. Districts may also examine types of cases in mediation, including cases with pro se litigants, domestic violence, third parties or interveners, limited English proficiency, and high conflict parties. Examining the types of cases in mediation and reporting those dynamics helps the NCAOC Custody Mediation Program

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identify training and skills needed for mediators. Review of statistics may highlight the need for procedural changes, new services, or better collaboration with court partners.

There may be a tendency to focus primarily on the number of signed parenting agreements when assessing program effectiveness. Given the Custody Mediation Program’s goal of sparing families the trauma of a court hearing while saving the court valuable time, stakeholders should consider other factors and outcomes of program effectiveness. Since it is a common practice for attorneys to incorporate draft parenting agreements into consent orders, districts should discuss methods for obtaining this information. Some parties may withdraw their action after participating in a Custody Mediation Program if they are able to resolve issues and positively influence their situation. Due to their contact with the program, parties may feel they are no longer in need of the court’s intervention and this saves valuable court resources. Capturing this data is difficult, but could prove valuable when discussing the positive effects of the program. Exit interviews and follow-up surveys are additional methods that could be used to determine the impact a program has on clients.

CONCLUSION

Best practices are developed based upon research and collaboration from numerous court partners, including the Custody Mediation Advisory Committee. By following best practices, the efficiency and effectiveness of custody mediation is greatly enhanced regardless of the judicial district’s size, location or court culture.

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