Child custody is a messy and complex
issue. You want to know why mediation is
a really great alternative to you? And
here with some strategies for child
custody mediation, my friend, the attorney,
Sid Unrau.
Sid, you and I've been involved in child
custody cases for most of our careers. I
kind of left that field years ago as I
went over to positive psychology. And
there's a piece of this that I just
really wanted to pick your brain on a
little bit. Because we've got some
viewers who are really curious about
strategies for mediation and what that
is.
Maybe you could help us to understand
what that is first of all and then help
us out with some strategies. So, when it
comes up, mediation in the context of a
child custody case. What are we talking
about here? Mediation is one of my
favorite parts of the law. It's one of
the things I was able to study in law
school and I had no idea at the time
that it would turn out to be one of my
favorite things that I do as an attorney.
Mediation is an alternative to going to
court. Basically, it's an alternative to
getting a solution instead of having a
judge decide for you. Because in
mediation, you are in control. And that is
just a wonderful thing. Mediation is a
situation where you have a neutral
mediator who doesn't take sides but who
is expert enough to know what the issues
are and how to come up with creative
solutions to or the least creative
suggestions so that you can get some
solutions that you might want to have.
Mediation is a confidential process. You
can't bring anything from mediation into
court. You can't say, "Well, mediation, this
person was willing to do this and that.
But now she's taking an opposite
position." It's all confidential. It's a
place where you can let everything out
on the table. There are some caveats. You
can't talk about abuse and expect that
to not be brought to the court's
attention or to be brought to the
authorities attention. And also, another
caveat is you can't talk about hiding
assets. You can't secretly hide assets
from one side. Mediation is in good faith.
That means that everything's on the
table. But the best part about it is that
you are in control. And if the law says,
"Well, here's exactly what visitation is",
for example. Or here's how custody looks.
You can say, "Hey, we
have another idea. We want to do it this
way." And so, mediation is just this
beautiful process where we get to be
creative. Where we get to come up with
our own solutions. And it sounds like I'm
repeating myself over and over again. I
just can't say enough good about
mediation. I'm a trained mediator and I
also mediate. And I realized as an
attorney, most of our negotiations are
really mediations. So, let me give you
some strategies for mediating. Sid, you're
describing a process that a lot of us
have heard of. It really is an
opportunity to avoid some of the pains
and pitfalls of actually going into
full-blown litigation or a trial. Because
you get a chance to sit down with a
neutral mediator. Who can help you to
negotiate some kind of a settlement or
an agreement that you're in control of
instead of something that's being
dictated or handed down to you. Did I
capture that? That's exactly right. That's
exactly right. That sounds a whole lot
better. And many states require this
prior to litigation. Yes, I believe more
and more states. It may be in every state.
I know in California, it's the law. In Utah
it's the law for most cases if they're
contested. And I've actually been
consulted from I don't know, maybe 15 or
20 states other attorneys have called me
and asked me some mediation strategies
because it's come up in their States
over the years. So, I think that that's
it's a beautiful thing. Help us out Sid, if
you would next with some
strategies. So, let's say that we have an
opportunity to do this mediation. Maybe
we can avoid the litigation and the
trial if we can come up with some
agreements beforehand. What are some
strategies that you would suggest in
that case. This is where it gets very
interesting. Everyone, I just want to
mention this. Almost everyone tells me
why do we need to go to mediation? Why
can we go to mediation? "I know what my
position is, I know what her position is,
or his position is. I'm not going to budge,
she's not going to budge. Why do we have to
go?" I tell them it's the law and I also
tell them this, "90% of the time (It's
actually more than 90% of the time) but I
just say 90% of the time, we come up with
a solution." So, I realized that everybody
says, "Why should we go to mediation? It's
just not going to work?" But I also
realized it works. And so, I love to
reassure my clients that it works. The
problem is, it's one of those things that
well you get to experience it if you don't
really understand it. Two or three things
that I want to share with you about
strategies. The first one is to have an
idea of what you want. I realize that
that sounds a little bit nebulous. I want
custody especially when they're children involve.
And I want this much money, I want you
know to keep my lifestyle. Divorce is a
change. I get that you want custody, I get
that custody is important. But what does
custody look like? That's what you can
discover and decide and create in
mediation.
The law says custody looks like this. And
there are very few boxes and if you go
to trial, the judge can say, "Okay, we're
going to do custody this way." And that's all
the judge house. Whatever the law says.
But in mediation, you can be creative.
People say, "I want joint custody." I ask
them what does that mean?
50/50. What does 50/50 look like? Kids are
in school, their work, they're doing
different things, they're napping, they're
sleeping. What does 50/50 look like
to you? Or what does joint custody look
like to you? And then I start pointing
out that it doesn't really work that way.
I and my wife, we are happily married and
we have 6 children and I'll tell you
right now, we don't spend 50/50 of our
time with the kids. Our kids barely spend
time at home after their teenagers
anyway. So, I point out to my clients that
their ideal and their idea of what joint
custody and especially 50/50 means is
different. But think about what you want.
What you want and I had coached them a
little bit. I say, "What you want is
quality time with your kids, right? And
you want as much of it as possible. And
you also need time for yourself." This is
also true. One time my wife and I were at
a party, I don't know if I should admit
this story. But one time we were at a
party and we were talking about custody
arrangements where each every other
weekend
the kids aren't with a particular group
of people. I mean, one of the sets of
parents. And my wife said, "Wouldn't it be
nice if every other weekend we didn't
have the kids to worry about?" I said, "Yeah,
but in order to do that, we'd have to be
divorced.
And that brings other
complications. Yeah. So, I just thought
that was sort of a funny thing. But in
mediation, you can actually determine
things that the law doesn't say. So, the
first thing is to have a clear focus on
what you really want.
And what you really want isn't a number
of days. And it's not even 50/50. What you
want is happiness. Really? And that's what
you want and what you want is a good
relationship. So, think about that. That's
my favorite thing to help people see. And
then I give them ideas.
There's one idea, for example. 50/50 could
look like. Each parent switches off
weekends but they switch off a fad
weekend. So, maybe Mondays and Tuesdays
with one parent, Wednesdays and Thursdays
with another parent. And then Friday
Saturday and Sunday, you switch off. So,
that gives a great an idea. So, the kids
always know where they are on Mondays
and Tuesdays. They always know where they
are on Wednesdays and Thursdays and they
know that each other weekend, they switch
off. That works beautifully for many
times of the year. Sometimes during
vacation time and during holiday time, we
have to adjust that a little bit. But
that's a beautiful way. And that also
gives parents the feel of 50/50. I will
tell you right now, you're never ever,
even if you follow the law exactly going to
get exactly 50/50. Can I jump in on
this too Sid? Because as I'm listening to
that, it makes so much sense to me that
psychologically we're looking for
something that's fair, right? Right. And
that feels like 50/50, half and half. If
we could just dispel that myth and I
think you've done a nice job of doing
that. We're not looking for fair. I don't
even think it exists. We're looking for
appropriate and functional and
healthy that these are better ways to look at
structuring what it is that you really
want. bceause honestly, fair, 50/50, probably
both mythological creatures at this
point. Exactly. Being flexible is point
number 2. And here's what I mean by
that. No matter what your goals are, you
have to realize you are here to be
flexible and to realize that your goals
may not look like at the end like they
looked like when you were just thinking
about them. For example, think about when
you go on vacation. I'm going to, I went on
vacation recently to Denmark. I had this
idea in my mind here's exactly what I
was going to do. Here's exactly who I was
going to see, here's the day to day what
I wanted to accomplish. It didn't turn
out like that because the weather was
different than we thought, there were
some holidays that came up, there
were just different considerations. But
it all turned out
beautifully. And that's what you can have
a hope for. This could all turn out
very beautifully. So, realize. Well, maybe
if the switching off every other weekend
doesn't work for some people that's
great. Figure out a way to work around
that. And figure out a way that you can
still get to happy and still get to as
much time with the children as possible
and still get to a workable solution.
That's what I really like. So, be flexible.
People have this idea that you have one
person on this side saying, "Here's where
I am." And the other person on this side,
"Here's where I am and we're going to meet
in the middle and that's the solution." I
don't believe it. I don't think that
that's really ever what happens. I think
it's more like we have an array of
things on one side an array of things on
the other. And we sort of see where the
arrays sort of coalesce or sort of where
they they overlap a little bit. And we
find a solution in that overlap. There is
always overlap. And that's what I like to
point out to people. Go to the overlap
part and work from there rather than go
from these polarized positions. And it
may not... If we were to continue on with
the line analogy, it may end up, instead
of in the middle, it may end up over here
on some issues and over here on other
issues. So, just don't have this notion
that mediation means that I'm going to lose
some stuff and he's going to win some stuff
for she's going to lose some stuff and he's
going to win some stuff. Realize that maybe
you're all going to win. That's a
possibility that this pie is a giant pie.
And maybe it just never ends. And I like
that kind of thought rather than winner
and loser. We're talking about these as
strategies. That really powers up your
position in the mediation. So, I'm hearing
from you that, that first point was about
focus. Get clear about what it is that
you want and then your second point is
about flexibility. The strategy of, "Okay,
here's what I want but there's going to be
some overlap and there's going to be some
meshing and some give-and-take and some
flow." Yes. And also to help you with
both of those things with both focusing
and compromising, I find it very helpful
to have a list of all the issues, if you
have an attorney, it's good to go over
that list with your attorney. But if not,
you just come up with all the issues.
Because here's what often happens.
Sometimes, in mediation, you get focused
so much on one aspect of it exactly how
holidays are going to work or exactly how
child support is going to work or exactly
how the clothes are going to go back and
forth. Are we going to each have our own
clothes
or whatever. That you forget that there
are other issues that you also want to
get to. And sometimes and I hate to say
this, but sometimes we spend 90% of the
time on the big issues. But we spend 90%
of the time on certain issues and then
everything else has to fit into the
last 10%. And that to me, sounds like the
wicked stepsisters trying to force their
feet into the glass slipper.
It just doesn't exactly fit that way. And
you don't feel as good about those
things. So, have a list and sort of pace
yourself. That's sort of a bonus one that
goes in between both of these other ones.
The third point I want to make is to move
on and be happy. Once you've come up with
a solution, don't second-guess yourself.
Don't keep going over and over, "Oh, I
should have done this." Just don't. Trust
that. If you've covered your list, if
you've got the things that you really
want, that you can make it work. That's
what people sometimes get stuck in. They
think, "Oh, if you had done this slightly
differently. I want to give an example." It
doesn't have anything to do with
mediation but it taught me a lot. I met
10-year old kid in Alabama at my
cousin's house. One of them has a pool
table set up with a civil war battle. Why?
"Because if only this person had done
this differently, the South would've won."
This is more than 100 years later and
they're still talking about how the
South could have won. "What life would
have been like had Dixie risen and stay
in a separate country from the United
States? Really? You can do that in your
life? You can. Well, if we just done this,
my child would have been here more. Gone
to this score. I would have been able to
move to France or whatever. I don't know.
But the point is don't beat yourself up
over what might have been or could have
been. Make what you decided and trust
that what you decided was good. Because
you're informed. You trust yourself.
You're a parent and you have an idea of
what's in the best interest of your
children and you deep down, I think we
know what's good. And we can make it work.
And I think that's generally a human
trait. We can actually, we can survive
under lots of circumstances. Just for
example right now, I'm living in my
basement. We left town for 10 days. The
operation on our house was supposed to
take 4 days. While we're two weeks
later and the operation we hope is going
to end today. But you know what? We're
surviving, we're thriving. I talked to Dr.
Paul when I first got here about I was
worried about my socks
today. Only have 3 pairs of socks that
I'm cycling through. We always get to
the laundry every 3 days because we
anticipated getting back from vacation
and moving right back in. So, I I don't
even know where my other socks are.
Things like that. The truth is, no matter
what you've decided in mediation, you can
make it work. And you can make it work
well. And you can be happy about it. And
think of what it does for the children.
If you think... If they see you making it
work and being happy and you can do it.
And not only that, this is sort of a
bonus as well. One of the things that we
can do in mediation is come up with, "Well,
what if we have disagreements in the
future that we hadn't thought of?" What if
this there are unintended results?" Guess
what? You can go back to mediation, you
can create ways for a conflict
resolution right in the mediation
agreement. You can say, "Okay in the future,
if something comes up that we had not
anticipated, here's what we're going to do
about it."
We'll make a tentative agreement to do
this, we'll talk about it and if we can't
talk then maybe we'll go to mediation
before we go to trial again or before we
take it to the judge. That is an awesome
solution. Because if it works the first
time, it's most likely to work again. I'll
also say this, a lot almost always
requires that you go to mediation before
you go back to the judge if you really
want to change something. But think about
it. It's a beautiful thing to be able to
have a plan to resolve conflicts because
things are going to come up. People get sick,
people get injured, somebody gets an
opportunity to go to the summer in
another country or something like that.
And so, all of a sudden what does that do
to visitation. If one parent gets her 2
weeks or 3 weeks. But the other
parent has to give up all of his time
because the child is going to be on a study
abroad or something like that. Well, there
are ways to work it out. And there are
ways to work it out and they're in the
best interest of everyone. And really the
best interest of the children is the
most important thing. So, when you go to
mediation, just to recap a little bit.
Make sure that you have what's most
important to you in mind. Make sure that
you put everything on the table that you
are willing to compromise and that
you're willing to recognize the places
where you guys agree on things and build
from there. And also remember to be happy
about your agreement. Just decide to be
happy about it.
Sometimes people, I think just beat
themselves up over stuff over and over
again. What if, what if. "What if I had
taking this other road."
I don't know. There are just so many
times when we play the wet if game. Stop
it. Just be happy and move on. And
remember, you could always revisit
mediation in the future.
I love mediation. It feels good. It feels
so much better and I guess I got to give
you this example. I've had 27 trials for
custody in my career. I've had a lot of
hearings about temporary custody but
when it comes down to final custody
trials, I've had only 27. And I've been
practicing for 27 years. I don't know of
a single time when anybody was really
happy after a trial. And here's why. When
the judge says, "Alright,
I've taken the evidence, here's what I'm
doing." And from the judges perspective,
he's probably, I'm giving mom some stuff
I'm giving dad some stuff. Maybe the
judge feels like he's trying to be
even-handed. But what the judge is really
doing, he's saying, "Here's what the law
says, here's what I'm doing."
Nobody's really happy about that. You're
not creating anything. You're responding.
You're being told what to do. I love
being in control of my own life. And I
think you do too. And I think that's the
best. That's what Live on Purpose is all
about. Exactly. Sid, your expertise is so
valuable here. Thank you for those
strategies about mediation and
especially your wrap-up point which is
what you create from this process, you
can and will adapt to. So, learn to love
where you are and participate in
that process in the way that you've
expressed here, Sid. I think that's a
powerful alternative to some of the less
favorable alternatives. Exactly. I don't
know about you but I'm picking up things
I didn't even know about that industry.
And I worked in it for a long time.
I hope you found that helpful. Please
share this with someone else that you
think will benefit.