Expert: Timmy Chou - 1/12/2010

Question
My former husband and I finalized our divorce March of 2009. It was uncontested with children and the parenting plan was negotiated to have me as the primary residential parent with 50/50 parental decision making. Their father would receive visitations every other weekend, holidays, and special occasions arranged prior between both parties.

I have recently joined the Air Force National Guard. When I originally made this decision I first informed my ex-spouse about this decision eight months prior and we talked about how this would affect and benefit the children(ages 3 and 5). He agreed to take the kids under the provision that they would be returned to me once I returned from boot camp and technical training, child support payment would stop since they would be in his care, and since I was moving closer out of consideration for the father the girls would be in his care more often than every other weekend once I returned.

Now I am due to leave March 1, 2010 and he has sporadically changed his mind. He is refusing to give me my children when I return. He is also not allowing me time to see them- setting time schedules that he knows conflicts with my work schedule.

I tried writing a temporary agreement that we could both submit to the court that included both our concerns and the resolutions that we had discussed prior to those concerns. We could both read this letter and if we didn't like anything modify it until we were both in agreement. He will not even agree to read the letter.

I have read about alternative dispute resolution. If I am dealing with someone who does not want to even negotiate would arbitration be the ideal situation? We have been bickering for seven years now. I can no longer handle the emotional stress this has cause, not to mention the fact that I have to push my basic training date further because of his unwillingness to even discuss this matter. I think if a third party was involved this would not be such a stressful issue. I just need a solution that is binding and also includes the concerns of me being in the military- deployment,etc. Who do you contact in search of a mediator or arbitrator? What is the average cost? Do both parties have to be in agreement to this process before one is contacted?

Answer
Thank you for your question!  

As I always note to questioners, mediators act as neutral third parties to disputes and never "get involved" in judging the merits of conflict, but merely use special techniques to help the parties decide how to negotiate their own settlement.  Over 85% of civil lawsuits are settled prior to trial, therefore it is not usually a matter of IF a dispute settles, but WHEN and at what cost.

I am not a lawyer but can perhaps suggest some ideas based on my business consulting and mediation experience.  

You are right to presume mediation is only "bringing the horse to water" so-to-speak.  No one can compel people to mediate in a voluntary setting.  Willingness is a key ingredient.  However, you should know that mediators are good at motivating willingness.  

First, some information.  Mediation is a non-litigious way to work on a "perspective problem".  Disputants can work with a mediator that does not advocate for either party, but can help check out the practical consequences of people's positions and help shine light on positions that may be less useful.  Lots of latitude exists in mediation.  A problem can be subdivided and some parts fixed and others left to work on.  People can work together in one afternoon or over several months.  In divorce, particularly as children age and as new, unforeseen issues arise, a history of collaborative and successful mediation can be a terrific anchor point for couples who are inextricably tied together for life because of their children.  Mediated settlements can often be entered as stipulated judgments by courts in order to give them teeth, if necessary.  They can also be private agreements not in the public domain.  

Costs vary across the nation and most mediators have some flexibility depending on the situation.  I will usually charge $100 to $150 per hour, the costs split evenly between the parties.  Mediations in my experience of this type can last three to five hours.  Often one party is not hot on the idea.  Mediators will almost always call the parties prior to the sessions and talk to them about the process and about the benefits.  I can usually persuade people to give it a try, especially when they learn that the process is not binding in any way until and unless they agree to make it so.  Mediators are forbidden by law to disclose anything discussed in the mediation, even to courts, so often some very important ground can get covered that is to delicate for people subject to a subpoena later.  

Most states have lists of family mediators in the court systems.  Many states and cities and towns have non-profit groups that provide mediation to the community.  

You can also look here:  http://www.mediate.com  for a referral to a family mediator or parenting coordinator in your state.

I think cases like yours have a a high probability to be successful mediation candidates, saving the parties money and the children much heartache.   

You are smart to look for collaborative solutions, Hope this information helps!

For your information, the pros and cons of the types of dispute resolution methods follows.

GOOD LUCK!

Arbitration, Mediation, and Litigation

Arbitration: the referral of a dispute to one or more impartial persons for final and binding determination outside of the judicial system

Benefits of Arbitration:
Confidential, no public record
Limited exchange of documentation, information
Quick, don't have to wait for a court date
Arbitrators have expertise in the subject matter and are trained in conflict resolution
Cheaper than litigation
Preserves business relationships

Negatives of Arbitration

It's a compromise, no 100% winner
Complex arbitration can be costly
If not satisfied, may litigate the arbitration procedure
Poor results with an unskilled arbitrator
Both parties must agree to cooperate in the process

Mediation: the process by which parties submit their dispute to a neutral third party (the mediator) who works with the parties to reach a settlement of their dispute.

Benefits of Mediation:

Neutral mediator can objectively suggest alternatives not considered before
Parties are directly engaged in negotiating the settlement
Can be quicker than litigation
Less costly than litigation
Preserves business relationships
85% of American Arbitration Association cases mediated find successful solutions

Negatives of Mediation

may not reach a binding decision
unskilled mediator

Litigation: using the judicial system to resolve disputes

Benefits of litigation:

a clear winner and loser
uses a prescribed set of procedures
more predictable outcomes
is final

Negatives of Litigation:

waiting for court dates can do more harm
usually more expensive than mediation and arbitration
part of the public record