Email strategy until mediation

[kells76]

Second post (but probably not the last   ) to the legal board... .

DH has been emailing Mom about his disagreement with the schedule (but how he will temporarily go with it until mediation). The soonest mediation could happen would be in 2 weeks. His question is, should be in the meantime email her about the school issue, just to get a paper trail (but possibly derail her desire for mediation), or keep the email focus narrow and bring up school at mediation?

Cliffs notes on school: DH got job at kids' school. When Mom found out she pulled them and now plans to homeschool. She doesn't want DH to homeschool them on his days off (he has 2 weekdays off) or help kids with HW.

ForeverDad, I remember your posts (on the Coparenting board) about how DH should express his deep concern about the situation and how Mom is using it to block his contact, but you brought that up in the context of court docs. Would it be helpful for DH to get a head start by documenting via email to Mom his concerns? Or is waiting 2 weeks to talk about it in mediation not a make it or break it decision?

[Nope]

At this point waiting and talking then make ght be the best option. The mediator won't give you "credit" for bringing your concerns up ahead of time and it's always best not to tip your hand until it's absolutely necessary. You want the mediator to witness BPDm's true reaction. Not the carefully crafted excuses she's had two weeks to formulate

[ForeverDad]

I'd first like to discuss mediation in general.  Mediation works with reasonably normal people.  When one or both are obstinate and obstructive, not to be confused with having firm goals and boundaries, then it is harder to accomplish much.  A lot also depends upon the skill and qualifications of the mediator.  Likely the mediator will try to get some agreement on the less triggering matters.  The mediator will soon figure out who is proactive, reasonable and problem solving.  However, beware of a poor mediator who pushes H to give in repeatedly simply because he is the only one who will be reasonable.  So what I'm saying is, H can and should say "No, I don't agree" on major issues if that would violate his boundaries or sideline his parenting.

Also, mediation at the start of a court case usually doesn't succeed for most of us, not without being figuratively eviscerated.  However, most do end up in settlements.  How?  Later in the case when the disordered ex is less entitled or feeling painted into a corner then we can get a "less unreasonable" settlement.  I recall when I walked into court on Trial Day that I was greeted with the news that after nearly two years she was finally ready to settle.  (The temp order was clearly in her favor and so she too entitled for mediation and delayed as long as she could.)  However, I set a boundary then, I told her (knowing there were already two reports that recommended I get more parenting) either I would be Residential Parent for School Purposes or we'd go into court and let the judge decide.  That was appropriate for my circumstances.  I'm not saying H should do that but this process is his opportunity to stand up as Father, he should not be a sidelined footnote in the children's lives.

Be aware that in many states what is stated or discussed never gets to court, often mediation is considered a black box.  My mediation only resulted in "failed", I am not aware that the court ever heard any details from it.  So don't view mediation as a way to document.

As Nope noted, sharing tactics and strategies in advance could be self-sabotaging.  And it is a good place to learn what objections and distortions she will use.  But if she already knows what he wants and it hasn't been otherwise put in writing then some parts may be good to document in writing.

So he will continue with the current schedule "until mediation"?  What if it gets delayed or goes into more sessions over weeks or months?  He needs to decide what he will do if/when mediation fails, gets rescheduled or otherwise delayed.  He will feel pressured to put off asserting his scheduled time.

[kells76]

DH has already emailed Mom (a few weeks ago) about offering to pay for the kids to go back to their orig school. That was back when we believed what Mom was saying about money   So maybe that covers objecting to the school change, without bringing up more detailed issues.

DH wrote to Mom that he disagrees with the current schedule but will do it until working out another one in mediation. FD, your point about mediation working with "normal" range people is well taken. The mediator knows Mom & her husband already & knows how they tick, so at least there he won't be taken for a ride. The issue then becomes making a schedule that both DH & Mom agree on, which will be tough.

One thought is that DH is going to have an initial consult with a L before mediation. If the mediator can be the one telling Mom how a L sees the PT conflict going in court (from DH's info), instead of DH just telling Mom "Well, the lawyer I met with thinks you'll lose", maybe Mom will take that more seriously. Thoughts on that as a helpful/strategic move in mediation?

[Nope]

The only person in that room that the BPD might listen to as having some authority will be the mediator. But even that only goes so far. "My lawyer thinks you'll lose" will carry no weight and would probably just be seen as threatening. The best tactic is to go in asking for more than what you want so then there is wiggle room to not give you everything you ask for, but still get you what you actually want. That way it appears that both sides are giving a little and nobody comes out the clear "winner".

If the mediator is seen saying yes to your side too much and no to BPD mom's side too much then BPDm will likely just shut down and you'll definitely get nowhere. That being said, it all depends on how entitled she is. There is a huge range in behavior. As FD always says, it's unlikely you'll reach an agreement until the day of court, after a bunch of continuance, right before walking into the court room.

But again, it depends on the level of entitlement and if she can find herself an L that will tell her exactly what she wants to hear. Which, BTW, is that she doesn't actually have to work with you at all. My DH's BPDex found herself just such an L and there wasn't even an attempt to settle. Not even after the GAL report came back saying DH should have sole custody and decision making. Instead of wavering from her entitled position she walked into court and lost everything.

[david]

I had one mediation years ago. It was a very nice sunny day and after three plus hours I simply said that I was not going to waste anymore time on such a nice day and would see ex in court the next day. The mediator called hours later. Apparently she worked with ex for a considerable amount of time after I left. She indicated that everything would work out in court the next day. Went to court and my ex had "magically" taken my position and made it her idea. We agreed in less than 5 minutes. The agreement was to follow the court order.

[ForeverDad]

As Nope wrote, it all depends on how entitled she is.  DH needs to remember to periodically step back during the session and assess how much progress is being made.  Mediation is NOT arbitration nor court.  He is not obligated to give in just to get an agreement.  Nor is his ex.  If he's getting nowhere then he should not sacrifice himself or his parenting simply to walk out with an agreement.

Be aware that the qualifications and experience of mediators does vary.  If he is the only one willing to truly negotiate, then there is a risk the mediator, know ex will never ever budge, may try to pressure a deal by pressing him to give, give and give some more.  Surely the mediator is better than that but better for DH to be aware, informed and prepared rather than to be caught off guard and off balance.

That reminds me.  If DH gets stuck wondering what to do or how to handle some issue, he can always ask for a break, go outside or to a restroom and call you or lawyer for objective perspectives.  It's not just DH vs EX.  He has resources and should access them (privately and without fanfare) if the need arises.

As David wrote, either party has the option to say "I tried but it's not working" and politely walk out.  Too often we think we have to make a deal.  Courts prefer it, lawyers prefer it and so do the mediators.  But if both parties aren't at least somewhat reasonable, it won't happen.  Well, not unless DH appeases, grovels and accepts crumbs.  So he needs to be fully aware that mediation does not have to succeed at any cost.

DH should not fear declaring mediation to have failed and then proceed next to court.  Yes, court could rule against him in some issues, there is a certain level of risk leaving decisions to the court but the odds are greatly in his favor that court would rule for terms and conditions better, perhaps far better, than what his ex would ever offer, accept or agree.

Remember, a mediated settlement, once made an order of the court, cannot be appealed.  In other words, DH would be stuck with it and it would probably be very hard to undo in the years to come.  On the other hand, a judge's decision, if too unreasonable, can be objected to, reconsideration sought or an appeal made.

[ForeverDad]

DH should walk in to mediation virtually whistling, not shaking, not timid.  He can be and should be Empowered Dad.  He's there for HIS children.  She can't make him to agree to anything DH doesn't like.  The reverse is also true, he can't make her agree to anything either.  So DH should not feel pressure that he has to accept crumbs or a lousy deal.  No, he can declare his reasonable terms, his boundaries.  Yes, he should start by asking for some extras as well, things he could allow her to negotiate away - if it gets that far.

He should also remember that if they get partway through and he's negotiated some things away and they've then hit an impasse, then DH needs to know he doesn't have to hold to those halfway terms when going to court.  He has the the right to withdraw any concessions made there in his negotiations and restart with a clean slate in court.

[david]

FD makes a lot of good points. I had that all in my head when I went to mediation and was very comfortable.

I realized that we could come to an agreement and I could change my mind, so could ex, at the last minute and scuttle the entire thing. That is mediation. None of that is reported to the court so there is no harm.

I developed very strong boundaries. I only communicate through email (documentation). I stick to the three to five sentence rule. I stick to facts about the kids only.

I recently started getting more emails from ex. In 2007 I would get around 40 to 50 a month. In the last year and a half that went down to about 5 a month. The last two months it has gone up to about 20 a month. I reply to the things that directly pertain to our boys. Pick up times, holiday schedule,etc. I have not replied to a single email in the last 5 or 6 weeks because there was nothing in any email I thought needed a reply.

Most of her emails lately have been about her physical well being or something she is doing that has no bearing on our boys.