Mediation offer from the custody evaluator -- yay or nay?

[flourdust]

I'm in the middle of divorce proceedings against my dBPDw. We have one 11 year old daughter. The court ordered a custody evaluation, with the report due in May. The evaluator has completed his interviews and observations but hasn't produced the report yet. He just sent a letter to both of our attorneys, saying he believes we could settle via mediation and offering to set up one of his colleagues to facilitate it for us. (This is a county office, not a private mediator.) My dBPDw has signaled her agreement. I am skeptical, because... .

1) We tried mediation before going to trial. I had a complete proposal for property division, parenting plan, etc. She brought nothing and only wanted to negotiate better temporary maintenance & custody plans for her.

2) In the 10 months since I gave her my settlement offer, she has never responded with a counter-proposal or been willing to negotiate any specific pieces of the settlement, even ones that I thought were the least objectionable.

3) I currently have temporary majority custody ... .the % division is about 72/28. I suspect the custody evaluation report will be favorable to me -- probably 65/35 or 60/40. If we hold mediation before the report is released, she's going to demand 50/50.

So, I don't see that it's good for me to agree to mediation until we get the custody report and I have a concrete counter-proposal from her. I'm also a little concerned & confused that the evaluator should propose this before producing his report.

Any advice or wisdom?

[livednlearned]

Interesting.

I would want to know if the mediator was a psychologist or a lawyer, and if one or the other, did that person have special skills or past experience mediating when one parent has BPD or any kind of PD. And if so, what were the outcomes of the cases, did they end up going to trial or not.

[david]

Does the evaluator know you tried mediation before, what was offered, what your dBPDw has done ?
If so, could you ask him why he thinks it would be different this time ?

Did you talk to your attorney about it and what he/she thinks ?

I tried mediation once and after three plus hours of getting nowhere I simply walked out. It was allowed and I saw no progress occurring. We had a court date the next day for the same issue. Ex was not following the court order for custody. The mediator called a few hours later and said she thought things would work out in court. The next day ex came out with a proposal, which followed the order, and everything was resolved in about 15 minutes. Ex made it look like it was her idea but she was simply following the court order and exactly what I was proposing the day before. I believe it had to be "her idea" or she would not agree.

Lnl makes a good point since she has a diagnosis. I am a trigger for my ex so we can't be together without her dysregulating in some fashion.

[flourdust]

I would want to know if the mediator was a psychologist or a lawyer, and if one or the other, did that person have special skills or past experience mediating when one parent has BPD or any kind of PD. And if so, what were the outcomes of the cases, did they end up going to trial or not.

Really good questions! I can actually write to the custody evaluator about this directly, so I don't have to pay my lawyer to relay emails.

[flourdust]

Does the evaluator know you tried mediation before, what was offered, what your dBPDw has done ?
If so, could you ask him why he thinks it would be different this time ?

Did you talk to your attorney about it and what he/she thinks ?

I haven't heard back from my attorney about this specific offer -- his paralegal just relayed the message to me. I did write back with my concerns (as I described above) and asked for his thoughts. I think he's out for the holiday weekend, and ... .honestly, I don't feel any incredible rush to respond to the offer.

I did talk to the evaluator about the history of the case ... .I was mostly trying to frame things around my desire to have an airtight parenting plan with no ambiguity. I described how difficult it was to negotiate anything with my ex, how she wasn't responsive to requests, and how she took advantage of any possible loopholes in legal language. (For example, the judge wrote in our temporary order that my wife "could" do something during her parenting time, which she chose to interpret as she "will" do that something, and can take any make-up parenting time she wants without consulting me to get it done.)

Anyway, the evaluator did raise the issue of mediation during our last meeting. I said that I was open to it conceptually, and I would love to be able to settle instead of going through court, but I explained the history and my strong doubt that it was really possible.

I can certainly ask him why he believes it will work this time.

My feeling, from reading others' experiences here, is that mediation might eventually work, but only after dBPDw has been given strong messages from authority that she's not going to get everything she wants. If she gets minority custody with cautionary language written about her parenting challenges in the evaluators' report, for example. Does that seem like a fair prediction?

[livednlearned]

Does that seem like a fair prediction?

I think it depends on how severe her mood dsyregulations are, and what kind of prior imprinting influences her notions around authority.

And to an extent, how comfortable you are asserting strong boundaries, regardless of whether she is emotionally regulated or not.

Sometimes, things might seem to be going along smoothly and you could get lulled into softening your boundaries, or whatever might be written up in the custody order.   

With my ex, even when it inconvenienced me, I learned to color in the lines at all costs. I treated the custody order as tho it were written in stone and did not deviate.

If you are at all concerned that your ex will somehow think a mediator's word is not as authoritative as what a judge might say, then you'll get strung along until she decides to take things to all the way to court.

It is my sense with my ex that the negative engagement was as fulfilling as if we were still in the idealization phase.

That's the part of the mediation phase that can be so aggravating. It just draws out what could be dealt with more swiftly (and fairly) in court.

[flourdust]

If you are at all concerned that your ex will somehow think a mediator's word is not as authoritative as what a judge might say, then you'll get strung along until she decides to take things to all the way to court.

It is my sense with my ex that the negative engagement was as fulfilling as if we were still in the idealization phase.

Wow. Yeah. That nails it. There's definitely the negative engagement -- she gets energy from being "the victim," and it's role she is comfortable in. I have a feeling she's going to want to keep working the judgment, whatever it is, until she wears it down to the point where she is getting what she wants.

Your point about dysregulation is a good one, too. She's had trouble holding it together in prior mediation and courtroom encounters. When she's faced with the negative feedback of hearing unpleasant things about herself or offers that take away what she feels entitled to, she starts to melt down. She hasn't had a full-blown explosion, but she raises her voice, gets emotional, begins to complain about how she's being treated, etc. In mediation, that just drags things out. When it happened in the courtroom, that led to a sharp rebuke.

This has given me a lot of aspects to consider. I'll mention my concerns to the evaluator and also see what my attorney says.

[livednlearned]

Do you feel there might be a mark against you for not trying mediation?

If so, you can also agree to mediation, then when you come in and begin to negotiate, express some of the bottom line items and see what comes back. You may be able to tell within 30 minutes that there is no possibility of settling and choose to end mediation. 

I do believe there are good mediators out there, but even when they are good, I always wonder how long it takes and how much it costs.

And how many of them end up going to court anyway.

The upside of mediation is that anything your ex agrees to, and then does not comply with, tends to send a message to the judge that she is the trouble maker.

If you do go to mediation, make sure you include consequences and contingencies for non-compliance. That way, you don't give the judge a wide open menu of options (including giving her another bite of the apple). You give the judge the exact consequence you want, so your trip to court is more likely to produce the results you want.

[takingandsending]

1) We tried mediation before going to trial. I had a complete proposal for property division, parenting plan, etc. She brought nothing and only wanted to negotiate better temporary maintenance & custody plans for her.

Flourdust, this is precisely my experience with uBPDxw. She will only work on the things that serve her self interest. No putting children first, no compromising. If you already have favorable custody, I would wait for the report and go from there. And I am also really honestly skeptical of a CE sending you to his recommended mediator. If you are going to do it, get one that has credentials dealing with high conflict divorce, understands BPD and can cut through the victim, victim, victim nonsense that your xw will relish spouting when she believes she has an "understanding" audience. At least, that's been my experience. Typically, the first half hour to forty five minutes of every mediation is my wife expounding upon a litany of complaints. I wouldn't be doing it if I had 75% custody and a formal diagnosis. Wait for the report.

[flourdust]

Apparently I misunderstood some of the nuance here. It turns out that it's not mediation, it's a "facilitated settlement conference."

We (both spouses and their attorneys) will meet with the evaluator and his colleague. The evaluator will give a verbal presentation of his likely recommendations from the custody evaluation. We then go into separate rooms, and the colleague attempts to mediate facilitate settlement for a couple of hours. The negotiation is restricted to custody/parenting issues, so financial matters are off the table.

If we reach a settlement, we have a permanent custody plan, and as incentive, the fee for the custody evaluation is cut in half. Otherwise, the evaluator goes ahead and prepares his written report. My attorney thinks that the advantage of this approach is that the evaluator's recommendations will carry a lot of weight in court, so knowing what they are provides motivation to settle.

So, I'm going to give it a shot... .

[flourdust]

We (both spouses and their attorneys) will meet with the evaluator and his colleague. The evaluator will give a verbal presentation of his likely recommendations from the custody evaluation.

Let me just put a prediction in writing. This point (the verbal presentation) is where I think things are likely to start to go off the rails. I suspect that both my ex and I will hear things we don't like in the evaluator's recommendations for custody. I'll sit there being unhappy but quiet. My ex will start to dysregulate and may talk back, begin complaining out loud, start to yell... .

Anyone want to bet against me?

[flourdust]

Oh, one more detail (sorry about the serial posting!)... .

My wife is probably in a pretty unstable place right now. She doesn't have a lot of opportunities for conflict with me, but I've learned through other channels that she's trying to date a lot of people, and that's not going well for her. Also, and perhaps more significantly, she's been in a DBT program for over two years, and they've just given her written warning that she'll be expelled if she doesn't stop dysregulating and acting out in group too much and refusing to follow her treatment plan.

[takingandsending]

We (both spouses and their attorneys) will meet with the evaluator and his colleague. The evaluator will give a verbal presentation of his likely recommendations from the custody evaluation. We then go into separate rooms, and the colleague attempts to mediate facilitate settlement for a couple of hours. The negotiation is restricted to custody/parenting issues, so financial matters are off the table.

If we reach a settlement, we have a permanent custody plan, and as incentive, the fee for the custody evaluation is cut in half. Otherwise, the evaluator goes ahead and prepares his written report. My attorney thinks that the advantage of this approach is that the evaluator's recommendations will carry a lot of weight in court, so knowing what they are provides motivation to settle.

So, I'm going to give it a shot... .

It still feels like a new person, the evaluator (sounds like an insurance claims adjuster) is being introduced into the process. Does this person have any background with you or xw? Without the interviews, research and time the CE has already spent, what is the point of bringing in a new person that has none of the background? I understand that if you fail to settle, it goes to court. Do you really think your xw will settle?

[livednlearned]

Anyone want to bet against me?

 

I started to bring popcorn to my hearings.

[flourdust]

It still feels like a new person, the evaluator (sounds like an insurance claims adjuster) is being introduced into the process. Does this person have any background with you or xw? Without the interviews, research and time the CE has already spent, what is the point of bringing in a new person that has none of the background? I understand that if you fail to settle, it goes to court. Do you really think your xw will settle?

Hey, I have positive associations with insurance claims adjusters! They've given me large checks. 

So, the custody evaluator has spent about 20-30 hours in direct meetings on our case. That includes individual meetings with both of us, home observations, calls to therapists and other witnesses, and structured observations of us using the Marschak scale. He strikes me as competent, but he's been very clear that he only knows us from a limited amount of observation and interaction. My best guess is that his recommendation will be favorable to me, but perhaps not as favorable as I would like.

His colleague is, I assume, another evaluator in the office who has not been involved in our case, so that he can not be seen as prejudiced as a facilitator.

I think the best-case scenario for this conference goes as follows -- the evaluator delivers a verbal recommendation that is clearly favorable to me. My ex's attorney persuades her to accept something close to the evaluator's recommendation, and it's also something that I can live with, so we come to an agreement.

Assuming that the recommendation is what I think it's going to be, the likely worst-case scenario is that the the ex is distraught and unmanageable during the conference. Lots of time gets eaten up with her melting down and having circular arguments with the facilitator. There's no resolution because she can't focus long enough to address all of the issues that need to be resolved to have a custody plan. We end up with either nothing settled or just a few scattered points agreed to.

If the evaluator delivers an unfavorable recommendation, that's a whole 'nother mess, of course.

I want to hope for the best-case scenario. I think a realistic scenario is somewhere in between best and worst cases -- favorable recommendation, ex AND her attorney work together to undermine it. If that happens, and we see there's no progress, my attorney and I will bail.

[livednlearned]

Could there be a third way?

In my case (slightly different process), it helped to suggest a soft recommendation that put responsibility on ex to comply with a set of conditions.

For example, yes, ex could restore visitation to status quo if he did xyz by day/date.

Meaning, she has to work for the things she wants, while you are granted what you want. Putting the responsibility on her to comply.

[david]

Giving conditions for improved behavior provided it doesn't look like you are trying to harm the other party in some way is a great way to handle these things. It's a negotiation for what you believe is best for the kids.
I was in a custody eval and was challenged about what I was seeking since it was not the "normal" custody arrangement in our county. I stood my ground, in a civil manner, explaining my reasoning. I was challenged in some of the areas and I defended my positions. It was easy because I honestly believed I was doing what I saw as our kids best interests. I never lost focus to that. Later, in court, the judge challenged me on some of the same positions. I'm not sure if the evaluator gave him the questions or not but they were similar. I gave the same answers because that was what I honestly believed. I never once attacked my ex and her behavior. I simply stated what I believed to be best. The judge went along with exactly what I was proposing.
My ex had no counter to my proposal that she could give reasons for. Having a well thought out plan really helps. I believe that when one parent has solutions and the other is still fighting it is easier for the court to make a decision. It makes sense too since they really don't know you, your ex, or your kids.

[formflier]

My gut says go for it. 

I would have some written things with you for "no go" items.  As in, nope... .I'm going to court.

Then... .take notes on the proposals.  Ask clarifying questions, notes on those as well.

Flourdust,

I think I have a sense of who you are.  You are solid, but we both know this won't be as favorable as you desire, although I also will be shocked if not "tilted" in your favor, perhaps more.

So, expect that you will have some emotional flooding... .doom... .ohhh no... .etc etc.  Committing everything you hear to paper to compare to what you had prepared before the meeting will help manage the emotion of the moment.

Plus... .you are essentially going through a process to "get a deal on paper"... .so put it there.  If you can live with what you see... .take it.  If not... .walk or counter.

FF

[flourdust]

Well, it's on the calendar for about three weeks from now, so it's time to put my lap bar down and hang on for the ride. 

FF, I agree with your assessment. The first time we tried mediation, my post-game analysis told me I did one thing right and one thing wrong. The thing I did right was to bring a list of the things I was willing to negotiate. I wanted to have that in front of me so I could look at it for some context about any proposal I was given. The thing I did wrong was to ignore that. I was caught off-guard when she proposed negotiating temporary custody and maintenance instead of the actual terms of the divorce. I started playing on that field, ignoring the field I had come to play on. I should have responded that I was there to negotiate the divorce, not more favorable temporary conditions for her before trial.

As it was, we agreed on nothing that day, so there was no harm done ... .but I could see in hindsight that I was caught completely off-balance.

Right now, the field that I think I am playing on is one where the evaluator provides a favorable recommendation for me, and I try to negotiate a final custody plan that is close to that recommendation. But, I could be caught off-guard by an out-of-left-field proposal from my ex or from a neutral or unfavorable recommendation from the evaluator! If that happens, I think I need to lean on my attorney to ground me in the actual reality we are facing and not my favored scenario. 

[flourdust]

Could there be a third way?

In my case (slightly different process), it helped to suggest a soft recommendation that put responsibility on ex to comply with a set of conditions.

Can you say a bit more about this? I'm not 100% sure I follow. I think you're suggesting a scenario where the evaluator makes a favorable recommendation (for me), my ex is resistant to it, and so I bring us to agreement by proposing a custody arrangement that matches the recommendation, but with goals that my ex could achieve that would reward her with more parity in custody over time. Is that right?

[formflier]

I started playing on that field, ignoring the field I had come to play on. I should have responded that I was there to negotiate the divorce, not more favorable temporary conditions for her before trial.

You've basically got this.   

You will make more booboos in the future, we all will.  The difference is you can back up and own your decisions and actions... .and in the future... .change so it is better.  (vice blame others and go to victim mode)

Dude... .the other day (can't remember if I saw you in thread or not)... I epically failed.  Wife blathered and instead of sticking with sorry and hustling her out the door to work, I attempted to solve problems with her... .  Amateur hour at it's finest.

Once I realized I was being a dumba$$... .I ignored her... cleaned up the mess... .poof ... .in half a day it never happened.  Life goes on.

You've been doing well playing your game and playing it, by and large, on your timetable.  Be suspicious of others (all others... not just pwBPD) altering that timetable for their purposes and not having YOUR best interests at heart.

FF

[livednlearned]

Can you say a bit more about this? I'm not 100% sure I follow. I think you're suggesting a scenario where the evaluator makes a favorable recommendation (for me), my ex is resistant to it, and so I bring us to agreement by proposing a custody arrangement that matches the recommendation, but with goals that my ex could achieve that would reward her with more parity in custody over time. Is that right?

Almost. The one difference being that you identify the leverage you have and use it strategically.

For example, N/BPDx wanted 50/50 visitation, joint legal custody (let's call this option A) and I wanted full custody, limiting him to 6 hours of visitation per week  (call this option C).

My L was concerned that the judge would split things down the middle, giving N/BPDx more than he had and giving me less. A lame, crappy compromise.

So when we came to the hearing, my side proposed that N/BPDx do three things in order to get more time with S15. He was given a deadline, and some other parameters, a checklist of things: anger management classes, substance-abuse treatment, parenting classes, and a psychiatric evaluation. I even offered to shorten a few months off alimony to offsets the costs. Let's call this pre-emptive option B.

Your list might be different.

My list was appropriate given our history.

Even just raising that possible solution (option B) changed the discussion between A and C, to a discussion about B and C, which were both viable options to me.

N/BPDx then found himself defending why B was not fair, which is not a great negotiating position to be in.
My side found itself in the preferred position of offering a reasonable solution.

I was dealing with a judge and you are dealing with an evaluator, but I think in BPD terms, the strategy can work the same way. Your BPDx's L is ethically bound to represent her interests. At the same time, he may recognize that she has issues and/or recognize that a judge will not give her what she wants, especially if you have third-party professionals recommendation something closer to option C (your preference) than A (hers).

If that's the case, then your L will be motivated to get her to accept option B. Then you have two lawyers working for you for the price of one  

My ex didn't do even one of the things he agreed to do.

I ended up with full custody (the default holding pattern), and then later went back to have it officially ordered, which, compared to all the other hearings, was a piece of cake.

Judge to N/BPDx: ":)id you do the things?"
N/BPDx: "No."
Judge: "Why not"
N/BPDx: LnL is a crazy egomaniac demon with horns and bad breath.

I guess the takeaway is this: She is about to get kicked out of the DBT program. That is (sadly) a form of leverage. It's also sensical from a safe and healthy parenting perspective.

Maybe your list is that she continues to work her DBT program for a year, and takes a parenting class, and once a month joins the kids in family therapy setting with their individual therapist.

In other words, let her prove, in the safest way possible, to be the parent she needs to be.

To use the analogy above, she will be demonstrating that she can do B to avoid C, hoping for A.
Whereas you are asking to get C while she demonstrates that she can do B.
A is, from a negotiation standpoint, not in play.

[formflier]

And that is the value of bpdfamily.

Learning from those that have gone before... .

Nice work LnL

FF

[flourdust]

To use the analogy above, she will be demonstrating that she can do B to avoid C, hoping for A. Whereas you are asking to get C while she demonstrates that she can do B. A is, from a negotiation standpoint, not in play.

This is great stuff -- and not a strategy I had considered. I'm going to have to think this through, but I like having this approach ready to deploy. Thanks!

[SettingBorders]

Let me just put a prediction in writing. This point (the verbal presentation) is where I think things are likely to start to go off the rails. I suspect that both my ex and I will hear things we don't like in the evaluator's recommendations for custody. I'll sit there being unhappy but quiet. My ex will start to dysregulate and may talk back, begin complaining out loud, start to yell... .

Anyone want to bet against me?

Not at all. This is exaclty what I have experienced in our first mediation. Do you think you can ask the mediator to write a report about the disregulation? This might serve you in court.

[flourdust]

Not at all. This is exaclty what I have experienced in our first mediation. Do you think you can ask the mediator to write a report about the disregulation? This might serve you in court.

I suspect that the facilitator isn't going to want to put anything into writing to influence the court. If the conference fails, the next step is for the custody evaluator to write up his report and submit it to the court. But we shall see!

[SettingBorders]

I suspect that the facilitator isn't going to want to put anything into writing to influence the court. If the conference fails, the next step is for the custody evaluator to write up his report and submit it to the court. But we shall see!

Hm, maybe you can at least have a talk alone with him or her and he will tell you what he thinks of your ex's plans. Then you can at least write the minutes from memory (braindump). It's not as good as a report, but might serve for anything ... .

[ForeverDad]

I believe some states allow the mediator to report how the sessions fared, and other states require it to be a black box and only reporting success or failure.