We’ve been ordered to try mediation in our custody case. Is that okay?

Judges don’t love to decide cases, especially in family law. It’s not that they don’t care, it’s just that they know that they don’t really have the full scope of the situation (how can they?), and prefer, instead, for people to do all that they can to settle their disputes BEFORE coming to court. That way, they reserve their time for the cases that absolutely, positively cannot be settled without their involvement, and people are generally happier with the resolution of their cases. A judge just doesn’t have the time to pay as much attention to each individual case as he (or she) might like. Instead of being able to come up with a customized and tailored solution to a problem, judges tend to use specific tried and true approaches to coming up with a verdict.
You, on the other hand, have both the time, the knowledge, and the freedom to come up with a resolution that works for you. Whereas a judge might award shared custody on a week on week off schedule (which he—or she—has ordered in hundreds or even thousands of cases before you walked into his—or her—courtroom), you have the ability to come up with a tailored solution that takes into account your schedule, your child’s father’s schedule, your child’s schedule, and, of course, the (ever elusive) best interests of the child, as according to you and your child’s father (who, let’s face it, know more about what’s best for your own child than a judge or guardian ad litem).
There’s no question it can be incredibly difficult to negotiate with your child’s father when it comes to custody. In a lot of ways, it just feels like there can be no compromise because, after all, these are your children you’re dealing with. How can you compromise when you feel so convinced of something that is in their best interests, or for their own well being? Though you know that going to court is a long shot, in other ways, it seems better than compromising.
Or maybe, on the other hand, you feel like compromise isn’t an option, anyway, because the things that you and your child’s father want are so far apart that there’s no hope of reaching an agreement you can both live with.
If you’ve initiated the court process by filing petitions for custody, support, or visitation, you may have been ordered by the court to attend mediation. A lot of times, this point in the process is the first time we hear from many of our prospective clients. They planned to handle custody on their own, but, when the judge ordered mediation, they were floored. They weren’t sure whether they should go or contest the mediation. Suddenly, they felt like they needed help, so they called and scheduled a consultation with us.
I understand the feeling. It’s surprising when you expected things to go one way (in this case, of course, you expected the judge to either set a trial date or just go ahead and make a decision already, not pass the buck to someone else!) and, when they went unexpectedly in another direction, you feel unmoored.

Mediation? Can’t the judge make a decision based on the information? Why is he (or she!) working so hard to AVOID doing his (or her) job?

In a lot of cases, mediation is ordered first. There are a lot of reasons behind it, of course, but the main thing is that the judges don’t really want to decide things that the parties can decide themselves. In a lot of ways, it’s a practical matter. Especially in highly populated areas (like where I live, in the Hampton Roads area), there are tens of thousands of divorce and custody cases filed. There are lots of unhappy people looking to the court to help them reach a resolution when it comes to some of the trickier issues. Not only that, but there are still criminal cases, personal injury cases, and others—all of which the judges have to decide.
In criminal and personal injury cases, too, there are opportunities for the parties involved to reach a resolution without involving the judge. In criminal cases, the prosecution will often make offers to settle, called plea deals. In personal injury cases, insurance companies (or representatives of the insurance companies) will make settlement offers to the injured parties. Oftentimes, these cases settle without a formal trial, too.
Even still, court dockets are super backed up. Take Virginia Beach for example. If you wanted to schedule a full contested divorce trial in Virginia Beach, you’re probably looking at a date right around Christmas, if you file today. That’s a LONG time to wait, right? In the meantime, though, the court will expect you to take steps to try to reach a resolution before your trial date. A lot of times, when you schedule a contested hearing, judges will impose specific restrictions—like that you have to file pretrial briefs and attend judicial settlement conferences. And—yes—in some cases, the court will require mediation, too.
It can be unnerving for your case to take an unexpected turn, especially if you haven’t yet hired an attorney to represent you. Now, you’re wondering whether you should hire someone to help, or if you should even attend mediation at all. Is it risky? Will you be forced into something you’re not comfortable with? What can happen? What if you’re unhappy with how it’s going? What if the mediator is mean to you? Will he (or she) push you? It’s hard to know, and it can feel a little like you’re walking in to a trap.
That’s why I’m here to talk to you today. Let’s talk about mediation, and how it works in cases where it’s court ordered.
Often, you can contest the mediation. Is that wise, though? Probably not, unless you’re contesting to more than just the simple fact that mediation has been ordered. I’ve instructed a prospective client to contest mediation when she was also making a motion to contest the appropriateness of the venue (the child had lived somewhere else for more than a year, which would probably have been the more appropriate forum to make a custody determination).
There’s a risk to avoiding mediation, though. If you contest it, and then go in front of the judge, he (or she) may be annoyed that you had a chance to try to settle and you didn’t. Is it worth the risk? Maybe, but a lot depends on your specific factors.
You may choose to hire an attorney to help you through your mediation. Though you certainly don’t have to, it can be nice to have someone on your side. It may be nice, too, to ask someone whether, in your case, it’s worth it to contest mediation (if that’s something you’re considering), or whether you’re really better off just giving it a try, however briefly.
In a case where there’s domestic violence, it may not be fair to suggest mediation. I’ve found, in my experience, that in cases like this, there’s a pretty uneven balance of power, and the abuser is likely to use it against the abused. If you feel like you’re easily bullied, or your child’s father is going to use his position against you, you may wish to avoid mediation. If you fall in this category, I definitely suggest that you talk to an attorney beforehand, though, to make sure that, in your case, with your judge and your mediator, it would actually be okay to skip it. Keep in mind that not all judges are the same, and have different opinions about how a case should go. Some are sympathetic, some are skeptical, others can be very harsh in their questioning. Make sure you’re not setting yourself up to walk into a trap.
Keep in mind, too, that mediation is optional. Even if you go, you can dictate the way things will be run. You don’t have to agree to anything. You don’t have to stay in the room for any longer than you’d like, either.
A couple years back, I remember a client who went in to mediation. She went on her own, with specific instructions to bring back whatever the mediator proposed for our office to review. She wasn’t supposed to sign anything.
Our client called us, whispering, from her cell phone in the mediator’s office. He told us she wasn’t allowed to leave. He told her she had to sign. She was frantic. We hung up with her, and called the mediator’s office ourselves to tell the mediator that our client was free to leave at any time, and, in fact, would be leaving immediately.
Of course, that’s an unusual story—I’ve not heard anything similar before or since. But you should know that mediation is optional, that you don’t have to reach an agreement, and that you are free to leave whenever things seem to be breaking down (or if you’re made to feel uncomfortable!). Even though mediators often talk a strong talk (because, obviously, they want you to reach an agreement), they can’t force you to stay or to sign. You should feel free to say no.
Mediation is one of those things that we do see ordered fairly frequently so, if it happens to you, just know you’re not alone. Also, if you’re afraid to go into mediation on your own, or if you’re considering contesting mediation, you might want to talk to an attorney one on one first, just to make sure you’re making the right decision for your case. For more information about mediation, give our office a call at (757) 425-5200.