I did a mediation recently that had some disturbing proposals on the part of one of the parties. They came to mediation to create a parenting plan for their daughter. Their daughter lived with her father full-time. The mother hadn’t seen her daughter in a year. The dad believed this was because she didn’t care about her child and wasn’t interested in being a mother. The mom, of course, had a different story. She works in a dentist office, and when the pandemic happened, she was concerned that her exposure to the virus at work would be spread to her daughter and ex-husband, so she stopped seeing them in order to protect them. She ended up coming down with covid herself due to her work exposure. The father didn’t believe this was the reason why she hadn’t seen her daughter, even after several hours of discussion. He was adamant that the mom had been absent by choice rather than necessity.

These parties needed to create a parenting plan. In Washington, if you have children, this is one of several documents you must complete in order to finalize a divorce. The dad was appalled at the absence of the mom from their daughter’s life. He thinks it’s really important for his daughter to see her mother regularly, so he presented several proposals to change their custody situation to include both parents. He was willing to do whatever it takes to encourage his ex to reintegrate into their daughter’s life. Sounds good, right? He threw out several ideas – to have her see her daughter on alternate weekends and several other ideas. He then tossed out this one – to completely reverse their custody situation so that their daughter would live primarily with her mom and would see her father on alternate weekends. The dad said he’d even be willing to fully reverse their custody arrangement in this way if it would make the mom be a parent to their child. He thought anything would be better than his daughter not having a mother and said he’d be willing to make this extreme change if it would help. This was a new idea for him, one that he thought of right then while brainstorming during the mediation.

Once he voiced this idea, he latched onto it as the plan he wanted to stick with. He stopped discussing other ideas and focused on this one. The mom wanted reunification with her daughter, so she went with it. The couple started fleshing out the details of how this custody arrangement that was so radically different from their current one would work.

Several times during this discussion, the dad said that this would make the mom be a mother to her daughter. This was disturbing to me. It wasn’t that the mom who would then have the majority custody. In the many parenting plan mediations I’ve done, I’ve seen parents create all kinds of different variations on who sees the child when and for how long. There is no plan that is right for everyone. Each couple’s set of circumstances is different. What was bothering me was that he was trying to use the parenting plan to force the mother into changing her behavior. This didn’t seem to me like a good motive to make this change.

As mediators, we are neutral. We are not advocates for any party. However, when writing a parenting plan, we try to encourage the parents to first and foremost consider what’s best for the child. It shouldn’t be about what one or the other parent wants or what works best for them. The child is not at the table and has no one representing their interests. Sometimes a court will appoint a guardian ad litem to represent the best interest of the child, but that is not often done before mediation. Given a mediator’s neutrality, it is not our role to assert an opinion or make suggestions. Even if I have an opinion about what’s in the best interest of the child, it wouldn’t be appropriate for me to push it or even to voice it. A mediator can, however, ask questions and do reality testing.

In this case, I had some questions for both parents. For the dad, I wanted to ask if he’d thought about how this custody change would affect him and how he thought his daughter would handle the change. For the mom, I wanted to ask if she’d thought about how this would change her day-to-day life. This is what we call reality testing – asking the parties to consider how something would work in real life and what impact it would have. For example, if a divorcing couple who only have one car decide they’ll continue to share the car after the divorce, how will it work to share the car? Who will have it when? What if one needs the car when it’s the other’s time to have it? What will they do? Another example would be where one party owes a debt to another and agrees to make payments of $500 a month, yet is unemployed. How is that party going to come up with the money to make the payments? Are $500 monthly payments realistic for them? What if they can’t make the payments? “What ifs” are often part of reality testing.

When reality testing, you have to be very careful about how you phrase your questions. The attempt with your questions should be to solicit elaboration and to encourage the parties to think things through, not to lead them to do what you the mediator think is best. As neutrals, our opinions have no place at the mediation table. We should be careful to ask questions that stimulate thought rather than lead them to a certain conclusion or manipulate them into making a different choice than they seem to be making. This is the art of reality testing – asking questions that help the parties come to their own conclusions so that they can make a fully informed, voluntary decision. That’s what I did in this mediation.

In this case, reality testing questions for the father went something like this … How will you feel every day at home when your daughter is at her mom’s house and you’re alone? He would be going from seeing his daughter all day every day for a year to seeing her only every other weekend. And as far as how it would impact his child … How will your daughter handle the change from living with you full-time to suddenly being with someone every day that she hasn’t seen for a year? That would be a lot of change for a young child – a different home with different rules and a different parent that she functionally had no relationship with prior to the change. And for reality testing with the mother, it went something like this … How will your life change going from not seeing your daughter at all to having her live with you full-time? Do you have a bedroom she can use, clothes and supplies, etc.? Is your work schedule flexible enough to handle the time demands that being a full-time parent will necessitate? Is exposure to covid at your work still a concern? How will you keep your daughter safe?

I asked these questions to the parents in private meetings so as to give them space to express what came up without the other parent seeing and to allow them to work out the implications of this idea privately. Since this proposal had only been brainstormed that day, neither parent had thought through the implications. The father in particular had a very strong emotional reaction in the private meeting. In thinking through the implications, he decided that this complete change in custody wasn’t what he wanted to do. The impacts would be too huge, especially for his daughter, and his daughter’s best interest is what the dad was after. The mother didn’t have as strong a reaction as he did, but she saw that a change like this isn’t something you should do lightly. You need to think it through.

When we got back to the main room after the private meetings, the parties rolled up their virtual sleeves and went to work on their parenting plan. Neither of them continued to discuss the full change of custody that they’d been talking about earlier. They worked instead on a plan that they thought was more realistic and would truly be the best thing for their daughter, a plan that reintegrated the mother back into her daughter’s life and created a consistent schedule for her to see her little girl while not removing the father from her life.

If the parties had decided to stick to the original proposal (complete change of custody), that would have been the plan that I wrote up because any agreement the parties come to in mediation is their decision to make. If they wanted the drastic change, that is what their agreement would say. But with the help of some carefully composed questions, they would have made that decision having thought through how this would affect all involved. That consideration would have happened as a result of reality testing.

Please note: details of this mediation have been changed to protect the confidentiality of the parties. 

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