Realizing the Best Interest of the Child:
Using Standards in Family and Divorce Mediation
By Moira J. Kelly and Christine Harris Taylor
No one argues with the fact that divorce is a traumatic experience for children, or that disputes about custody and physical placement can have serious emotional,
psychological, academic, and social impacts on children. Every
state makes the “best interests of the child” the principal standard
for resolving divorce and paternity disputes relating to custody
and placement. Unlike in commercial and civil litigation, where
a mediated resolution usually takes the matter out of the judge’s
hands, agreements on custody and placement must be approved
by the court under that standard.
The Uniform Marriage and Divorce Act, adopted in many states,
lists several factors relevant to the best interests of the child,
including the parent’s wishes and the child’s wishes; the relationship
of the child with his or her parent(s), siblings, and other important
figures; the child’s adjustment to home, school, and community;
and the mental and physical health of all individuals concerned.
Some state laws specify additional factors. In most cases, though,
the standards articulated by the law are general enough to leave
a great deal of room for disagreement between the parents, and
therefore present a challenge for the mediator.
The two parties in a divorce—as well as their children—have
competing interests. Sometimes these differences can be resolved
by positional bargaining or distributive solutions. Many times,
however, they cannot, and the battle is then engaged, with the
parties believing that just by the strength of their wills they can
prevail to get what they want.
As Fisher and Ury point out in Getting to Yes, one way to get away
from this contest of wills is to negotiate on the basis of objective
criteria applying to all parties, criteria that are “independent of
[either party’s] will but also legitimate and practical.” Such objective
criteria or standards enable each party to justify and explain why
a particular solution was acceptable; if the parties cannot give an
understandable explanation for why they agreed to a resolution,
they are likely to find it difficult or impossible to comply with
it. The shift in negotiation from what a party is willing to do to
how the party is willing to decide something provides a way to get
more of what they ideally would like without creating a poisonous
atmosphere. The discussion of what standards are appropriate can
make each party more aware of how the other is thinking about
the situation, and change the focus from what will or will not be
done to a focus of what should be done. In addition, standards
force the parties to constantly look at the impact of their decisions.
The most effective standards will apply equally to all possible
solutions or options of the parties and stay away from vague
notions such as fair or equal or good. People who participate in
creating their settlements tend to have a high rate of compliance,
and ideally the objective criteria or standards would be developed
by the parties, with the mediator facilitating the parties’ discussion.
The mediator’s role would be to assist the parties by explaining
potential standards and facilitating the discussion of what
standards will be used for option assessment.
It can be difficult for the parties to develop standards themselves,
however, especially in high conflict custody or placement cases.
The parents may have little experience with thinking about
what makes custody arrangements better or worse for the child,
and they are often such bitter adversaries that negotiation over
criteria itself becomes positional. An experienced mediator can
make a valuable contribution by proposing standards for the
ACRESOLUTION Spring 2013