Mediation Scheduled, any advice?

[CoherentMoose]

Hello.  It's been a while since I've been here.

I'm living with my fiancé who has two children, boy age 12, girl age 8.  We've been living together 17 months now.  My fiancé has been attempting to get her children into therapy since she separated from her uBPDx husband.  He's refused or ignored all attempts so far.  Our state requires both parents agree to therapy. 

The behaviors of the children degraded recently and we decided to go to court requesting sole custody for mental health.  Our state requires both parents attend a mandated mediation session prior to court.  The mediation will be over the phone. 

Has anyone in here participated in mediation prior to going to court?   I'm interested in the process and likely questions to be asked. 

I assume the mediator will attempt to get the parents to resolve the issues listed in the Request for Order.  I would like to run practice mediation sessions with my fiancé as she tends to freeze in high conflict situations. 

Any advice or details of your experience will be greatly appreciated.

Thank you.

Be well.

CoMo

[kells76]

DH and his kids' mom did mandatory mediation as well, I think (memory is a bit fuzzy, it's been a while).

Main thing I can think of is -- just because the mediation process is mandatory, doesn't mean agreement is mandatory.

Both parents are required to attend the process. That doesn't mean that her kids' dad can make all kinds of demands, and then she's required to agree.

Of course, he may make all kinds of wacky demands. Her bottom line could be something like: "Thanks for sharing your views. I don't see a way for there to be agreement on that issue. The kids need professional therapy and that's why I'm here."

It's perfectly OK for her to "stick to her guns" (in a BIFF kind of way -- Brief, Informative, Friendly [or at least neutral] and Firm) and lasso the focus back on getting mental health decision making for the kids.

I'm assuming there are no other issues from her side about which she wants/needs mediation...?

[CoherentMoose]

Thanks Kells!

"Thanks for sharing your views. I don't see a way for there to be agreement on that issue. The kids need professional therapy and that's why I'm here."

That's perfect.  Adding that to the scripts we're creating so she doesn't have to think on the fly.   

Heh.  As you surmised, the xBPDh has responded with his own list of "demands" to include getting the children passports, he will communicate with her anyway he sees fit, extended vacations (asked the children about how they would like a month on, month off schedule), limits on who disciplines the children (he's accused me of hitting the daughter), and unlimited phone calls between the children and the parents.

Also yes, my fiancé has some secondary requests in her order.  They include parental non-emergency communications will be through email or Talking Parents, phone calls between the children and him will be on a dedicated phone handled by mom (he tried to sneak in another cell phone in his son's school backpack...the same phone he used to track my fiancé with when they were married), and limiting unsolicited calls from him to the children to one event each week for 20 minutes per child.  His calls frequently cause disruptions to our routines, sometimes upset the children to crying, and upsets my fiancé knowing he may start demanding to talk to the children and blowing up her personal and work phones should she not have the children immediately call back.   

The parents are on a week on, week off custody exchange schedule.

The language for all requests was developed in concert with her new lawyer.  He's really calm and supportive.  So nice.  The language he put together for the therapy Request for Order was outstanding.  He thinks it's a slam dunk so I'm hoping I can prepare my fiancé to hold fast and not bow to conflict and pressure during the call and settle for less than mental health custody.   

Thanks again for your suggestion.  CoMo

[GaGrl]

I am trained as a mediator but used it only in Corporate HR/employee conflicts. However, there are some aspects of mediation that are similar and need to be addressed.

Will the session begin with Ex, Fiance, and Mediator on the phone together?

Will the mediator then begin separate sessions with each participant? (This is the equivalent of the mediator having each person in a separate room and moving back and forth between them.)

Is there clarity at the beginning of the session as to how and when either participant can terminate the mediation due to lack of progress?

If you can clarify the format before the mediation session, you'll be better prepared if Ex stonewalls.

[CoherentMoose]

Gagrl,
Thank you for making some time and posting.

Will the session begin with Ex, Fiance, and Mediator on the phone together?
Process is to call-in, get put on hold, and then the mediator brings both parties in together.  No individual time with the mediator for either party is our understanding.

Will the mediator then begin separate sessions with each participant? (This is the equivalent of the mediator having each person in a separate room and moving back and forth between them.)
Negative.  There are exceptions; however, in this case they both will be on the line together with the mediator.  Her lawyer recommends she stay on the line to listen to what the xBPDh is saying.  One reason why we're practicing sessions with her mother acting as the mediator and me as the ex-husband throwing insults and flying monkeys. 

Is there clarity at the beginning of the session as to how and when either participant can terminate the mediation due to lack of progress?

Her lawyer recommends suggesting "we cannot seem to reach agreement" should things start getting out of hand, but stressed letting the mediator lead the session and remain polite and respectful.  The mediator will make recommendations to the court should agreements cannot be reached.    CoMo

[kells76]

Lots of great pre-work ideas from GaGrl.

This one:

Is there clarity at the beginning of the session as to how and when either participant can terminate the mediation due to lack of progress?

made me think...

So, your fiance knows ahead of time some of the issues that her kids' dad will be pushing for.

What if she came up with a list, something like:

-Issue #1, passports

-Issue #2, non-emergency communication

-Issue #3, etc etc etc

And under each bullet point, she sketches out how far she's willing to go.

The passport one caught my eye, because it DOES take both parents collaborating, and if at some point in the future she wants the kids to have passports but Dad drags his feet, it'd be a huge hassle.

Are there some fences she could put around it, so that he feels like he "won" by "the kids get passports" but the rules around it keep everyone safe?

I'm thinking starting something like:

"Sure, I agree it'd be good for the kids to have passports. Let's do a 50/50 split on costs, unless you have another proposal, and I'll keep the passports in my safe deposit box."

This could be a win-win -- I imagine the issue with passports is, what if Dad has them and takes the kids out of the country without Mom's permission/knowledge?

But of course, what he'll present as is -- "I just want to do this thing for the kids, and it's very normal, and I can't believe she's obstructing me" (when really your fiance is balking at how he'll use the passports).

If "all he wants" is that the kids have passports... then surely he can't object to her keeping them... right?

And, if he balks at a 50/50 cost split, and wants her to pay all... then sure, she'll pay it all... and DEFINITELY keep the passports -- after all, she paid for them.

That is one idea about using "ju-jitsu" thinking in mediation. What this does is show the mediator that you're willing to say Yes to some things, so if later there's a deadlock, it's clear that you're not unreasonable or stubborn about everything. You'll compromise when it's sensible, but be unflinching when it comes to other issues. That's OK.

...

So, ahead of time, figure out some "workarounds" on some of his proposals, or some "bones to throw" so that it's not like: Dad pitches 5 ideas, Mom says No to all of them, and then Mom pitches 1 idea... well, seems reasonable for Dad to say No. Find aspects to say Yes to, so that Dad saying No to Mom's proposal seems more problematic.

[ForeverDad]

Main thing I can think of is -- just because the mediation process is mandatory, doesn't mean agreement is mandatory.

Both parents are required to attend the process. That doesn't mean that her kids' dad can make all kinds of demands, and then she's required to agree.

GaGrl & kells76 both framed it well, if the ex doesn't agree, then it's okay to call it deadlocked and probably then it gets bumped to a court hearing.

I recall my lawyer telling me, "Courts love counseling!"  So likely court would agree with the parent who asks for counseling.

Be prepared but don't show all your cards before it's time.  Do you have a short list of vetted counselors (in-network insurance and respected as experienced and qualified)?  When the time is right, fiance presents the list and let the ex picks from fiance's vetted list.  If he refuses to pick, then fiance makes the choice.  Court will like it since your approach involves both parents.

My concern is if that approach is revealed too soon then ex may try to delay and seek to build his own list of gullible or inexperienced counselors.

As for the other issues, I'm not sure to what extent ex's own issues can be discussed.  How far will he be allowed to stray from the issues legally on the table?  Is it feasible or advisable to "throw him a bone" to get him mollified?

For example, the passports.  If they are obtained, determine who will hold them when not in use?  Is there risk of the other parent not returning the kids from a country that hasn't signed on to the Hague Convention concerning child abduction?  Would the kids have end up with (two-county) passports?  There's the current controversy of vaccines, are young children to be vaccinated to permit travel (if not now, then in the future)?

About ex wanting longer visits, is it just for vacations?  My county allows vacations to be up to two weeks, is there a clear benefit to a longer vacation length?  Is he talking about longer summer vacations for each parent?  It may seem reasonable - on the surface - but...  Here's my prior post on the topic:

When I sought and got full custody — he was 9-10 then — I recall asking my lawyer about simplifying it to alternate weeks (versus the split weeks specified in the decree) since exchanges triggered her biggest conflict.  He responded, "Do you want the court to think Ex is okay enough to have longer visits with her son?" ... Longer visits may not be helpful.

There is a reason longer visits than a week or so are limited to vacations.  Most jurisdictions limit vacations to 2 weeks.  That's a reasonable time frame.  If an exception is appropriate it can be considered on a case-by-case basis.  I'll share a story:  I scheduled a two week vacation.  I always started them on my weekend of course, I didn't want my plans sabotaged by my ex refusing last minute to give up her weekend.  So I planned to leave on my weekend and return on my weekend.  My ex complained the next time we were in court that I was taking a 16 day vacation (Saturday through a Sunday two week later).  Court appeased her and told me our son could not be away from her for more than 14 days.  My lawyer said that was his first time ever for such a decision.

[GaGrl]

I am not a proponent of both parties being in the same "room" for the duration of the mediation session. But Covid necessitates some changes. I think placing each party on hold for individual discussion could be done, but that 's just me. I was usually mediating between employees with joint claims of harassment, etc. so I really didn't want them in a room together.

Another point -- you can come to agreement on all points, on some points but not others, or on none. Decide what is most important, and if you don't get there, ask the mediator to move on.

[CoherentMoose]

Thanks all for your time and advice.
My fiancé held a prep session with her lawyer and he helped her craft some responses to some of the expected flying monkeys her xBPDh will let loose. 

He did state she will likely get court ordered counseling which she can use to get the children into counseling.  The court order will have a time limit.  The court here is reluctant to grant mental health custody unless there is documented active interference.  Therefore he recommended agreeing to court ordered therapy with a certified/credentialed family therapist if the mediator suggests it.  With the order she no longer requires her xBPDh to sign any forms for therapy.  We're not sure her ex will agree to any of it, but he's pretty smart and if he talked to his legal advice I'm sure he knows the likely outcome.  My guess is he won't fight it, but my fiancé is not so sure.  She says he HATES counseling stating it's a bogus overpaid profession that labels and destroys people.  We'll see soon.

Are there some fences she could put around it, so that he feels like he "won" by "the kids get passports" but the rules around it keep everyone safe?
Kells, I recommended this too as allowing him a "win" as her current court order requires approval of the other parent before leaving the country.   She stated she is a little afraid he'll abduct the children, but that seems quite out of character.  What he is likely to do is rent a sail boat and sail to Mexico as a vacation.  I think my fiancé is more afraid of the children's safety rather than going to Mexico.  In any event, she has veto privilege's.  During our practice sessions she's modified her stance to "yes, I support getting the children passports when the daughter is older".  Therefore, we've not covered the mechanics of obtaining and holding the passports in our practice sessions.

About ex wanting longer visits, is it just for vacations?  My county allows vacations to be up to two weeks, is there a clear benefit to a longer vacation length?  Is he talking about longer summer vacations for each parent?  It may seem reasonable - on the surface - but...

FD,
Heh...always seems to be "reasonable...on the surface...but" clause in dealing with BPDs.  This is a strange one.  Through the children, they stated their dad bought a house in Florida and that they would start visiting Florida and all the fun they would have.  Our best guess is he purchased a time-share as purchasing a house makes absolutely no sense.  The children must remain in our current state for the 50/50 parenting plan.  If he moves, the custody plan will have to be changed and we're certainly not going to allow him to take the children.  He told the children he would force their mom to allow month on, month off.  The children are very worried about that.  The young daughter in particular.  She has asked to go back to the 5522 schedule a few times. 

What set off the final straw that led us to court was he asked for a third major change to the week on, week off schedule this year.  He asked for another two week on, two week off change in November so they could visit with their cousins who were planning on visiting from a neighboring state.  My GF said no to the full two weeks, asked for the planned dates, and stated she would certainly consider trading days (but not weeks) so they could visit with their cousins.  Well then...that set off a text bombing series that included a LOT of accusations that I should create a separate post on.  Their current custody agreement limits vacations to 10 days, but my GF allowed 12 day and 14 day vacations this year.  She's willing to be reasonable, but in both cases, the children came back with some very worrisome behaviors so she said no to the third request and he blew up.  So we told her lawyer to file a request for order and here we are preparing for mediation.

Thanks all for your time and help.  It's greatly appreciated.  We've got a good set of scripts to help my GF for the mediation.  We'll see how it goes.

Be well.

CoMo