Wednesday, October 29, 2008

Using Mediation after Divorce to Resolve Disputes Regarding Medical Decisions

Parenting plans are usually clear that either parent may authorize emergency medical or dental care for the children while they are in that parent's care. But what happens when parents have joint decision-making authority over non-emergency medical care and they can't agree?

This issue often comes up when a doctor or other professional has diagnosed and/or recommended treatment for mental health conditions like ADHD or depression. Sometimes the parents not only disagree about the treatment, but about the actual diagnosis in the first place.

When parents disagree about a diagnosis or treatment, the easiest way to resolve the dispute is to get a second opinion. If the two professionals have radically different diagnoses, you might ask them to consult with each other and then talk to you about their differences. If necessary, ask the two professionals to suggest a third professional to review their recommendations, evaluate your child and make their own diagnosis. Note that you will likely have to pay for these consultations.

Some parents hesitate to take these steps because they think it's too much trouble, they'll hurt the professional's feelings or the professional will be annoyed if they don't accept their diagnosis and treatment recommendations without question. Don't let that stop you – they are used to it and they do not mind.

After evaluation by two or even three professionals, what if you still can't agree about what to do next?

First, focus completely on the child and set aside your own personal bias. If anger towards the other parent is getting in the way, find a counselor who can help you work through it so you can focus on what's best for your child.

Second, take your dispute to mediation. Mediation can help you figure out what information each of you need to break the impasse. Rather than starting with the disputed decision itself, mediation will help you reach agreements about how you will make the decision.

• What additional information do you need about specific treatment outcomes?
• What additional information do you need about the methods used to reach the diagnosis?
• What kind of information will you trust?
• Where can you find the information you need?
• How long will it take for you to gather the information you need?

After you've agreed to how you will make the decision, and have had time to gather the information you have agreed you need, another mediation session can be scheduled to work out the details of an agreement regarding the actual decision.

Hopefully, these nonemergency medical, dental, and mental health decisions will not need to be made often, but it's good to have a plan for when they do.

© 2008, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com

Wednesday, October 22, 2008

The Dynamic Duo: Using a Parenting Coordinator and Decision-Maker to Break the Cycle of Conflict

I've talked about this before, but the information bears repeating.

What is a Parenting Coordinator?

After the divorce or separation is over and a court-ordered parenting plan is in place, sometimes parents cannot get along well enough to put the plan into practice. Or hostility and conflict make it impossible to make necessary adjustments to the plan over time. In these situations, Colorado has authorized the appointment of a Parenting Coordinator (PC).

What is the Parenting Coordinator's Function?

The PC’s function is to assist the parties in resolving disputes concerning parental responsibilities (what used to be called custody) and parenting time (what used to be called visitation).

The PC will work with the family to help them identify the sources and causes of conflict between them, identify each party’s contribution to the conflict, develop parenting strategies to minimize the conflict, develop guidelines for communication between the parties, and develop guidelines for putting the parenting plan into place. The PC does not have any decision-making authority over the parties.

How are Decisions Made?

In addition to the use of parenting coordinators, some states authorize courts in family law cases to appoint a domestic relations decision-maker or special master (DM), with the written consent of both parties.

The DM, once appointed, is authorized to make binding decisions to resolve disputes regarding the implementation or clarification of existing orders concerning the parties’ minor or dependent children, including disputes regarding parenting time, specific parental decisions, and child support.

The DM’s decisions must be consistent with the substantive intent of the existing court order. In parenting time cases, this basically means that the DM cannot substantially reduce the parenting time of either party, but can make decisions which would re-align the parenting time in a situation that the order might not have considered.

How is the Decision-Making Process Different from Arbitration?

The decision-making process is less formal than arbitration, especially when someone has been appointed to serve the dual role of parenting coordinator and decision-maker (PC/DM).

When a PC/DM has been appointed, the PC will first help the parents to resolve the issue themselves. If the parents are unable to resolve the issue, the PC will determine when the process should shift from parenting coordination to decision-making and will let the parties know that the process has shifted.

And unlike arbitration, because the PC/DM will already have most of the information needed to make the decision for the parties, usually no formal hearing will be held.
If the DM is not also the PC, though, the process will generally be more formal and will require repetition of most of the information and documents already provided to a different PC or exchanged through attorneys. In these cases, there will likely be a hearing in order to allow the DM to make an informed decision.

What Kinds of Decisions Can the Decision-Maker Make?

The decision-maker is not intended to replace the court in making major decisions affecting a person’s parental rights. However, it is often not the major issues which take up the majority of the court’s time in high conflict parenting cases.

For parents who remain hostile and in high conflict after a parenting plan has been agreed to or ordered, making even very small decisions can be paralyzing.

These relatively minor adjustments, such as whether the pick-up or drop-off time for parenting time should be 5:00 or 6:00, how to choose each parent's summer vacation weeks, temporary changes to the parenting schedule and the parents' presence at school or extra-curricular activities, will not substantially change a parent's parenting time or decision-making rights regarding the child(ren).

Is the Decision Final?

Although the procedure is different from state to state, the DM’s decision is generally effective and binding upon both parties as soon as it is issued, and must be filed by the DM with the court shortly after it is issued, with a request that the decision be confirmed by the court.
Some states give parties the right to request that the court modify the decision and hold a de novo hearing after the final decision is issued.

A parenting coordinator/domestic relations decision-maker can be an invaluable resource that you can use to resolve family issues outside of court, break the cycle of conflict and learn new communication skills that will improve your family's quality of life.

© 2008, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com

Wednesday, October 15, 2008

Divorce settlement personality styles - Are you a diplomat or a general?

A diplomat is someone who is tactful and skillful in managing delicate situations and handling people. After assessing the needs and interests of all interested parties, the diplomat uses that information to propose solutions that will benefit all involved.

A general is also skillful in managing delicate and difficult situations, but looks for solutions that will benefit his or her side. The general focuses more on tactics rather than tact to accomplish goals, and is not concerned with understanding other people's needs.

When working on your divorce and parenting settlements, your underlying personality style will largely dictate the course of the process. So, which are you, diplomat or general?

Diplomats are much more likely to seek out mediation to resolve their family issues. They are comfortable with the give and take they know will be necessary to reach a settlement. Diplomats tend to look for win-win solutions that meet their needs and are also fair to the other side.

As much as diplomats want to be fair, they also want to be treated fairly. Their willingness to compromise is not a sign of weakness. Even though they would rather determine their own outcome, diplomats are willing to seek the court's help if they feel they are not being taken seriously or treated fairly.

Generals will usually agree to participate in a process like mediation, but are much more skeptical about whether it will work. They often already have a particular solution in mind and can't see any other resolution to the issue. They're rigidly attached to their own ideas and are reluctant to discuss other options that might benefit both parties.

Although generals appear to be comfortable with taking their fight to court, they are often the ones who will seek a last-minute settlement. After accepting such settlements, however, generals often complain bitterly about how unfairly they were treated.

In settling your divorce, if both of you are diplomats you will likely find success with mediation, a process that allows you to explore the many options that will meet the unique needs of your family. If one of you is a diplomat and the other a general , you might consider an alternative dispute resolution process that offers a little more direction, such as early neutral evaluation.

Even if you are both generals, you can still consider alternative dispute resolution. It will be much more rewarding if you are successful at reaching your own agreement and you can always go to court if your efforts fail. You have nothing to lose and much to gain.

© 2008, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com

Wednesday, October 8, 2008

Parenting After Divorce - Let Mediation Help You Navigate the Waters When Children Want to Move In With the Other Parent

No matter how carefully you worked out your parenting plan, older children often decide they want to change the parent they live with.

Children may have a wide variety of reasons for wanting to make a change. They might start feeling like the other parent didn't get a fair shake in the divorce and they want to make up for that. An adolescent or teenage child might start to identify more strongly with one parent and want to have a stronger relationship with that parent. The rules at one house might seem stricter than at the other, leading children to think life will be easier if they moved. Their relationship with a step-parent or significant other might be difficult. Or, they might just simply be curious about what life would really be like at that other house.

Whatever the children's reasons for wanting to move to the other parent's, negotiating this new landscape can be complicated. If the child has been living with you full-time, it's typical for you to be resistant to the idea, argue with the child or refuse to even consider the request. You might even accuse the other parent of manipulating the child to make the request in the first place. For most children, these tactics only seem to reinforce their decision.

Mediation is the perfect tool for negotiating a child's request to change his or her residence. If there is a change in residence, you will be essentially drafting a new parenting plan. Just like your original parenting plan, this plan should detail what parenting time for each parent will look like, how decisions will be made, how holidays will be alternated and what the child support arrangement will be.

If children are old enough to talk about wanting to go live with their other parent, they are very likely old enough to be included in these mediation sessions. It's a good idea for the parents to meet with the mediator alone initially, though, to start the process and have preliminary discussions about the issues. Before even getting into the details of the new parenting plan, it's important to consider how each of the parents feel about such a change, whether the change is even feasible, and if there are any special circumstances that need to be considered.

After the parents have had these initial discussions with the mediator, the children can be invited into the process to work out the details. The mediator will probably meet with the children alone first, to assess their comfort level and communication style. Some children are free with their ideas with the mediator, but do not want to be the ones to tell the parents directly what they're thinking. Other children welcome the opportunity to tell their parents what they're thinking in a controlled setting, knowing that the mediator is there to smooth out the communication.

If your children start to talk about moving in with their other parent, use the tool of mediation to help you through the process of deciding whether or not to make this change and/or how the change will work.

© 2008, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com