10. Is the proposed solution enforceable? Most parties going
through a divorce or child custody disputes have little or
no trust left between them. By ensuring that the proposed
solution has an enforcement mechanism, the parties will
not have to trust the other party to uphold the bargain.
Consistency in enforcement builds trust and gives constancy
to the agreement. As an example, many mediators have a
ground rule that there should only be one person talking at a
time in the mediation. This is enforceable. A ground rule
that says the parties will try to negotiate in good faith is
probably not enforceable, because it looks at intentions
and not actions and behaviors. Enforceable solutions
have clear, specific actions or behaviors that either are or
are not followed.
to devise their own standards after seeing some examples and
the mediator can help them do this. The mediator as an agent of
reality for the dispute can then engage the parties in a discussion
about how to select from the range of options being presented and
can ask the parties to anticipate the outcome or implications of the
decisions they are making. Many of the standards presented here,
though, are flexible enough and applicable to most custody and
placement situations. Some parties may push back strongly about
using standards, but most welcome the opportunity to objectively
see if the options are indeed sustainable.
11. Are there ways to measure the success of the proposed
solution, such as grades, physical health, mental
health, number of social interactions maintained, and/
or a decreased amount of parent/parent/child friction?
Depending on the situation, there may be other tangible
measurements of how the solution is working (or failing). The
parties should be encouraged to look at concrete outcomes
that can be used to show the positive or negative impact of
the proposed solution. Health measurements such as blood
pressure, weight, amount of exercise, number of minor colds
and the like can give an overview as to the physical impact
of the divorce. A child doing poorly in school after being
an academic star should set off alarm bells for the parents.
The child’s ability to keep approximately the same number
of friends, sleepovers, party invitations and the like is a clue
to how stable the child feels. Friction between parents and
children can be quantified as number of incidents, or by level
of intensity, such as small argument or major disagreement.
A proposed solution that can be shown to improve things
that are seen as positive, while decreasing things that are seen
as negative, is probably a good solution.
Mediation of custody and placement disputes in divorce and
paternity matters can empower parents to re-negotiate their
relationship and the relationship with their children, improve
communication and enhance their ability to make decisions
affecting their child’s needs and interests. Using objective criteria
assists parents in assessing proposed solutions when they face the
difficult decisions they must make in placement or custody issues.
The introduction of standards into negotiation improves trust,
and makes a settlement legitimate and persuasive. Regardless
of whether the parties are able to develop the standards
themselves or adapt standards suggested by the mediator, the
use of standards should enhance the key component of self-determination in mediation, since the parties will be the ones
who create their solutions.
Moira J. Kelly
“The Dispute Doctor”™, owns KELLY CONSULTING
LLC and specializes in workplace disputes, organizational
effectiveness, and labor relations. She is an adjunct assistant
professor of dispute resolution at Marquette University
and has been a member of ACR and its predecessor
organizations for over 15 years.
Introducing the concept of standards enables the mediator to
move the parties past discussion of possible custody and placement
solutions and towards a comprehensive, viable and enforceable
resolution. Not all parties will need to use standards, depending on
their history and level of competency in resolving disputes. Not
all the standards suggested here will fit every situation. What
is important is that the introduction of standards, however
they are used, changes the tone of the discussion between the
parties and focuses them on objective criteria for evaluation of
Christine Harris Taylor
Christine Harris Taylor is one of the first attorneys in
Wisconsin to hold an advanced law degree in dispute
resolution. She earned her LL.M. degree in Dispute
Resolution from the University of Missouri – Columbia in
2003. In addition to her private mediation and arbitration
practice, Harris Taylor holds appointments at Marquette
University as associate director in the Center for Dispute
Resolution Education and as an adjunct associate professor in the MU graduate
program for Dispute Resolution, teaching mediation, dispute resolution and
health care, family mediation and arbitration. Harris Taylor also serves as a
facilitator and trainer for other mediators throughout the U.S.
Fisher, R., & Ertel, D. (1995). Getting Ready to Negotiate. New York: Penguin
Fisher, R., Ury, W., & Patton, B. (1991). Getting to Yes. New York: Houghton
Miflin. (Original work published 1981).
Kelly, Joan B (1997) “The Best Interests of the Child – A Concept in Search of
Meaning”, Family and Conciliation Courts Review 35 No. 4, pgs 277 – 387.
McKnight, M., & Erickson, S. (1999). Mediating Divorce: A Step by Step Manual.
San Francisco: Jossey-Bass, Inc.
Pruett, Marsha Kline, Kathy Hogen Bruen and Tamar Jackson (2000) “The Best
Interest of the Child: Parent versus Attorney’s Perspectives”, Journal of Divorce
and Remarriage 33 ( 1/2) pgs 47 – 63.
Saposnek, D. (1998). Mediating Child Custody Disputes. San Francisco: Jossey-Bass Inc.
Taylor, A. (2002). The Handbook of Family Dispute Resolution. San Francisco:
Zwier, P., & Guernsey, T. (2005). Advanced Negotiation and Mediation Theory and
Practice. South Bend, IN: National Institute for Trial Advocacy.
Usually a discussion of standards comes during the exchange of
options about how to resolve particular points of the divorce. If
the standards are introduced before brainstorming or option
generation and discussion, they may inhibit ideas being developed.
Waiting until the parties have hardened positions may leave too
little room for negotiations. We have found it helpful to introduce
the standards by explaining that other parties have found them to
be helpful in considering ways of resolving custody and placement
issues, while noting that the list is not all-encompassing or final.
This means that the parties are given the information about the
standards in a way that does not imply that the mediator is in
any way forcing the parties to accept the standards. Parties often
experience the standards as a lifeline, a way to redirect their energy
constructively and a way use neutral, objective criteria as a way
to evaluate possible solutions. Of course, the parties may want