A Therapist's Guide to Understanding Mediation and Child Custody Evaluations
By: Tara Fass, LMFT
July/August 2003 issue of The Therapist

While it is not appropriate for a treating therapist to "prep" his or her own patient, it may be appropriate to refer the patient to another mental health professional who has expertise in the area of custody disputes. In identifying those professionals, one might seek consultation with current, former or retired child custody evaluators or mediators in either private practice or those who presently work, or in the past have worked, for Superior Court Family Court Services. Your patient may also benefit from consultation with such a professional. Depending upon the case, it may be advisable for a treating therapist to obtain written authorization to communicate with the other mental health professional. Although it would not be a sound or ethical practice for a treating therapist and his/her patient to use the same mediator or child custody consultant, many of whom are licensed mental health professionals, these referrals may be helpful to the clinician who would benefit from his/her own consultation to better understand what his/her client faces and therefore minimize potentially damaging personal exposure to the court process.

This article is intended to give therapists an insider's view of the process of mediation and child custody evaluations so that by understanding what goes on between mediator and/or custody evaluator and the client, you can give your client the best chance he/she has in the mediation and evaluation process. To the extent it is appropriate, and within the context of your treatment plan, you can also help your patient be the best parent possible by helping create a realistic parenting plan based on a critical yet constructive review of your patient's strengths and weaknesses as a parent, as well as the other parent's strengths and weaknesses. Alternatively, you can refer your client to a parenting specialist able to complete such a task. In any event, therapists would be wise to protect themselves and the clinical relationship by formulating a coaching strategy, including a timetable, which serves the best interests of the children as well as the parents, all at the same time.

Entrenched Patients
During these stressful times, parents can become very upset and distracted in mediation and evaluation sessions and can become position-oriented, e.g., "I want Wednesday night overnights" or "I need the children to be in private school." Typically, these parents haven't thought through the variables that go into a workable parenting plan, and they haven't prepared themselves for the possibility that anything except Wednesday or private school might be acceptable, or even preferable. In such circumstances, family therapists are in a tricky position. If you buy into your patient's narrative wholesale, without considering the validity of the other side, you risk being viewed by the evaluator or other court personnel, not just as family therapist and educator, but as a naive, or worse, an aligning therapist who does not understand the family systems component of family law cases. Trickier yet, if you are called by the evaluator as a collateral source, and your statements are less than flattering to your patient or challenge your patient's version of events and/or reality, you run the risk of being thought of as a traitor by your patient, particularly if you have not covered the territory outlined in this article. Even riskier, if you have been the couple's, the children's or the family's therapist, you run the risk of offending and alienating one, some or all parties involved, which may result in disdain for the former family therapist, which may be the only issue which the parties agree. So, as therapists, the way to preserve the client/patient relationship and abide by a best practice standard of treating patients and the whole family, is to help patients out of their entrenched positions, evaluate their goals, and develop a child-centered parenting plan to help patients through the mediation and evaluation process as well as work in the best interests of the children.

Mediation Overview
When a patient is gearing up for mediation, he/she should be thinking of it as the dress rehearsal for the initial interview in the child custody evaluation. If the case is not settled in mediation, the evaluation process is almost certainly next. Mediation, which is done through Conciliation Court in most California counties, except Los Angeles and Orange Counties, is non-confidential, which means that the patient's courtappointed mediator has the discretion to funnel the information fed to him by the patient back to the patient's hearing officer. Alternatively, the patient's hearing officer also has the right to request a wide range of information from the patient's mediator, including his or her opinions and/or clinical impressions about the case.

Critics claim that reporting mediation hinders candid disclosure and discussion of the parenting issues. The reality of court-based non-confidential mediation is an excellent argument for hiring a private mediator. Even if both parents and their attorneys agree to use the family's therapist as the private mediator, such a role would create an inappropriate dual relationship. Therefore, treating therapists should never take on the role of mediator for a family for which he/she has provided psychotherapy.

Absent an agreement to the contrary, there will be at least one mandatory Conciliation Court session prior to the court date. The patient should double-check if his/her county is a confidential county to check the accuracy of another professional's input. Either way, encouraging your client to be comfortable discussing sensitive topics is in your patient's enlightened self-interest, because certainly the other parent will be up front with any allegations!

Preparing for Mediation
In being prepared for the first mediation appointment, your patient should know that the first task for the Conciliation Court mediator is to get an overview of the relationship and put the important events in the parties' and children's lives on a timeline. Your patient can save precious mediation time, while helping the mediator, by bringing in a written one or two-page outline of the marriage. This exercise helps organize the patient's thinking and organizes the case for the mediator, who's required to gather this background information. Equally as important, this exercise helps patients to develop a more objective perspective about their case.

In the Relationship Timeline, include:

• The year when the parents met;
  
• The year when the parents relationship became "serious" (Note: this can be an interesting clinical issue and should not blindside the client should there be a discrepancy between the parties);
  
• The year the parents began living together;
  
• The year that the parents got married;
  
• The year of the parents' first separation;
  
• How many total separations the parents have had;
  
• When the last separation of the parents was;
  
• If and when couple or family counseling was ever done. In the Parenting Timeline, include:
  
• During the first six months post-separation, what the parenting timeshare was;
  
• From the six-month mark to the end of the first year post-separation, what the parenting timeshare was;
  
• When there were significant timeshare changes in the timeshare, one, two or three years;
  
• The current parenting plan the parents are utilizing. In the Personal Timeline, include for the patient:
  
• Whether the patient's grandparents are living or dead, married. Where the grandparents live, and if they a part of the children's lives.
  
• The number of siblings the patient has and their relationship historically and currently;
  
• How the patient's contact is made with extended family, and how often is it made;
  
• A brief description of what the patient's childhood years like from ages Birth-12;
  
• A brief description of what the patient's childhood years like during their teen years, 12-18;
  
• A brief description of what the patient's childhood years like during their young adult years, 18-20's;
  
• The patient's educational history;
  
• The patient's work history;
  
• The patient's current living situation, including all household members;
  
• If there are minor children other than those in question, describe the custody arrangements concerning those children;
• The patient's drug and alcohol history, including DUIs and hospitalizations, if any, as well as drug and alcohol issues of family of origin;
  
• The patient's domestic violence history, if any, as well as domestic violence history of family of origin.

Red Flags
Clients should be aware that there are certain "red flags" that mediators and evaluators are looking for. To be well-prepared, the patient should be clear on his/her version of the timeline, and consider whether it is possible for the other parent to see the timeline and relationship in a different way. A patient's ability to see the situation from the other parent's perspective is an important part of starting to test his/her grip on the reality of the situation. It is also an important step in realizing that although both parents have different parenting styles, the other parent is the one who the patient chose to be a co-parent, and he/she must learn to live with that choice in a constructive way for the benefit of the children.

These realities are going to be part of the new way of parenting in that family. The sooner your patient realizes this, the better off he or she will be. To the extent this process can be facilitated during the client's psychotherapy; the client may benefit from his/her therapist taking the time to discuss these issues with the client. Ultimately, this discussion may be of assistance to the client during this troubling time, as well as help stabilize the situation for the children.

Red Flags that often appear in the parents' timelines include:

• Different representations about the existing parenting plans;
  
• Different dates, particularly the date when the relationship became "serious;"
  
• Inability to identify the red flags of the relationship even in retrospect, particularly if a similar dynamic is present today;
  
• Glossing over or dismissing traumatizing history;
  
• Inability to put the case in perspective by understanding ways in which this custody debate has brought out unresolved issues of childhood or family of origin.

Don't forget, and never let your patient forget, that presenting him/herself as a rational, reasonable, coherent, articulate and flexible co-parent is essential to success, both in the mediation or evaluation as well as in implementing the actual parenting plan. To frame the conflict in terms of "angel versus devil" is not only unproductive, it's unrealistic and divisive. Should your patient become stuck in an "angel versus devil" position, he/she must realize that unless it can be documented, the position will likely work against him/her in the long run. A parent in a contested custody case, who vilifies the other parent he/she voluntarily entered into an intimate relationship with, risks leaving an impression of being emotionally out of control. Worse, in a political climate in which public resources are stretched thin, your patient runs the risk of being viewed as abusing a tax-supported service as an arena for playing out private dramas or regressed, primitive behavior. A patient who consistently fails to grasp this concept, after a number of exhortations to the contrary, should be referred to yet another mental health professional in the community who specializes in the treatment of such individuals and if the patient is not taking psychotropic medication, that subject may be broached. Clinicians working in this arena should familiarize themselves with research on "impossible couples" (Joan Lachkar, Ph.D., The Narcissistic/Borderline Couple: A Psychoanalytic Perspective on Marital Treatment, 1992, reissued 2003). It correlates or parallels the existence of personality disorders, usually with both parents or couples involved in highly conflicted and litigated cases.

Ultimately, your patient will be asked about his or her concerns about the other parent or the proposed parenting plan. It may also be quite helpful for you to understand these concerns. Even if your patient is consulting with another professional, it behooves your patient to make a list. In creating such a list, the patient should keep the following things in mind:

• Keep to the present time and only include the past as a prelude to the present. Dwelling in the past is a definite red flag;
  
• List or explain how the other parent can ameliorate your patient's concerns;
  
• What might the other parent raise as a concern with your patient's parenting or parenting plan; how might your patient address those concerns in a serious manner?
  
• List skill building your patient has done voluntarily, or is willing to do, to ameliorate the other parent's concerns, such as attending parenting classes or anger management therapy.

Red flag issues that come up in the area of concerns include:

• Dwelling excessively in the past;
  
• Negative attitudes and negative scanning of the other parent's behavior, to the point of failing to recognize any positive qualities in the other parent;
  
• Claiming that the other parent can do little or nothing to repair the damage;
  
• No perspective on one's own role in the conflict;
  
• Perceiving no room for improvement for either parent.

If your patient is mired in rehashing the past, view this in the same way as the patient who frames the debate with his/her former spouse as "angel versus devil." In fact, the two often go together and are a sure sign that additional support from a mental health professional and/or medication would be advisable. You may also find this patient is having difficulty remaining in the present with you, and overall, is not processing information well.

Proposed Parenting Plans
Obviously, a huge part of the mediation and evaluation is the actual parenting plan proposal. If your patient is working on a proposal, with or without help, he/she should consider doing the following:

• Generate 3-4 possible plans, ranging from the best case scenario to back-up plan that is "the nightmare he or she can live with;"
  
• Think in terms of a step-up plan, perhaps starting with less than your patient might have hoped for, but working into a more desirable plan over time;
  
• Make sure the plan takes into account the child's developmental stage, e.g., infant, toddler, and teenager?
  
• Provide names of providers for parent-training courses or other recommended resources to better the client's own, or the other parent's, skills.

Red flags in the area of proposals include:

• Plans that are not well thought out or fail to recognize the realities of their lifestyles;
  
• Plans that don't take into perspective the child's point of view and developmental needs;
  
• Plans that aren't based on reality, e.g., starting at 3:00 pm when the parent typically works until 6:00 pm, with no daycare plan in place.

Collateral References
Patients may wish to submit the name(s) of collateral references to the mediator or evaluator. The patient should be prepared to provide the name, address and telephone number, as well as the best time and way to reach each collateral reference. He/she should have spoken with the collateral reference, and the reference should have agreed to cooperate with the mediator or evaluator. Your patient may want to speak with the reference in advance to make sure he or she knows what the process entails, that he or she can, in good conscience, say positive things about your patient's parenting and that he or she has had enough contact with your patient to comment intelligently.

When preparing collateral references the patient should:

• Return to the idea of a timeline, and put the reference onto the timeline to give the mediator or evaluator some perspective on when and how long the reference has known the family;
  
• In terms of character references, choose references that include observations that corroborate the parenting plan history and not just a parent's good character;
  
• The most powerful character references are typically from other co-parenting partners (and to a lesser extent the co-parent's family) who can attest to a workable relationship with your patient;
  
• Other powerful documents include family members of the co-parent in question, specifically if the co-parent is cut-off from family members, has a poor work history and/or drug and alcohol allegations;
  
• Only give names of former lovers of the other parent who might corroborate spousal abuse if abuse of your patient has been undocumented.

Red flags in collateral references include:

• Changed dates on documents that come from the parents versus the same document that comes from a collateral resource;
  
• Collateral resources that fail to back up the referring parent's claims. It happens more often than you'd think!
  
• Collateral resources who barely know the parent or who haven't observed him or her being a parent.

The Home Visit
Once your patient is at the evaluation stage, he or she will need to prepare for the evaluator to come for a Home Visit. Before the visit your patient should consider the following:

• Conduct a safety check and make necessary adjustments;
  
• The house does not have to be spotless, but sheets should be on the beds. To the extent it is possible, the smell of cigarette smoke, trash, pet odors and dirty diapers should be minimal;
  
• The home should have a wide variety of food stocked, particularly fresh or healthy choices, in the refrigerator and cupboards;
  
• Everyone who lives in the home should be present for the interview. Frequent visitors may be there at the beginning, but should also be prepared to leave approximately 10 minutes after the Evaluator's arrival;
  
• The television should be turned off as soon as the Evaluator arrives;
  
• The Evaluator should not be put in the position to say, "No," to anything, including food. Although, offering a glass of water is appropriate;
  
• Let the Evaluator choose where to sit and where to talk to household members individually and as a group;
  
• Inform the Evaluator in advance if a household member needs to be seen first because of a work or school commitment.

Post-Evaluation Conference
The patient may want to have a discussion with his/her attorney or evaluator about the Post-Evaluation Conference, or PEC. It is the opinion of these authors that the PEC is one of the most under-utilized services of the Evaluator's office. The PEC gives your patient an opportunity to hear the results of the evaluation before it's actually made into a formal report, and gives both parents an opportunity to use this new information to return to mediator or settlement negotiations before the evaluation is actually written and made a part of the court's file. Although the discussions in the PEC are not confidential, it may give both parties new incentive to settle before the written evaluation is typed. It also saves the patient money, as it won't be necessary to pay for the written evaluation, if the matter settles before the written report is required. If the patient is interested in taking advantage of the PEC, he/she should express interest in using this service at the first meeting with the Evaluator.

Before convening a PEC conference with the parents, an Evaluator will typically have completed the investigation. This means that by the time of the PEC, the evaluator will have met the children at the home visit and contacted the most important collaterals. Generally this is accomplished about six weeks prior to the court date, thus the PEC meeting should be scheduled 5 to 6 weeks prior to the court date. If your patient reaches an agreement based on the PEC, each side has 10 days to cancel the PEC agreement. At the very least, by using a PEC you'll know what the recommendations are at least 20 days prior to distribution of the report, which gives you and your patient more time to process the information and plan for the consequences.

Conclusion
A little thought and planning can insure that your patient has the best chance possible in the mediation and evaluation process and that you as the clinician are not compromised. In addition to being a solid clinical strategy, it is also a sound legal strategy that your patient's attorney will appreciate because it can help parents better address the needs of their children during this difficult time. Keeping your patient focused on the needs of his or her children, while protecting you, your good name, as well as the therapist- patient relationship, gives both parent and child the best formula for success.