Three Settlement Processes When Court Looks Like a Train Careening Out of Control

Let’s say you are involved in a litigation (court) process to address a parenting dispute and it looks like that train is careening out of control.

You can’t foresee using mediation or collaborative law because either you or your former partner won’t agree to this. There may be a custody/access assessment you view as unfavorable and perhaps wrong or biased or inadequate and your lawyer has likely warned you or may even be evasive about the prospects of you winning your case.

The natural tendency of most people in these situations is to entrench themselves deeper in the dispute and look for ways to further develop a strong offense while doing what they can do to close or address any incoming attacks. However, that only escalates the dispute and makes matters worse. So what can you do? Here are three options:

1. Assessment Critique:

In view of a custody/access assessment which you take issue with, you can seek an assessment critique. An assessment critique is not an opportunity for another assessor to reevaluate your entire case. An assessment critique should be restricted to reading the assessment only and then providing feedback by reviewing aspect of the assessment against known standards of practice for conducting such assessments.

Most often when a parent or lawyer seeks an assessment critique they are also looking for the author of the critique to absolutely find fault with something which may be used as a wedge issue to undermine the validity of the recommendations. However, it is vital for parents to know that most assessment critiques hold very little sway in the context of a court trial. More often, the person providing the critique is viewed as nothing more than a hired gun by the courts, thus undermining the credibility of the critique and the service provider.

I do provide assessment critiques, but only in a closed context. This means I will consult to the parent or lawyer concerning matters regarding the assessment, but I will not write a report or attend at court. The value of this exercise is in helping the parent or lawyer in their cross examination of the assessor if issues are found within the assessment. The other value of the exercise may be bringing the reality of the situation home to the dissatisfied parent. I have conducted some 40 to 50 assessment critiques. Statistically most assessments that I have critiqued meet the standards of practice and the recommendations are within a reasonable range. About 10% had notable issues of a serious nature. My findings have helped parents determine settlement.

2. Separation Coach:

Just as almost all athletes have a coach to help them improve their game, so too can separating parents have coaches. The separation coach can help a parent review their strategy for managing conflict and facilitate that parent’s communication skills in view of issues arising between parents. Because this is also a closed process (not open to the courts or other parent) you can openly explore issues originating with yourself or the other parent and develop strategies to address those issues which may impact on determining your settlement.

3. Lawyer-Assisted Mediation:

Even in the throes of litigation it doesn’t mean that both parents and lawyers can’t get together to still try and come to an agreement. While traditional mediation (without lawyers) and collaborative law may be off the table, lawyer-assisted mediation provides for your sense of safety/security knowing your lawyer is still there to protect your interests in a discussion process with an experienced facilitator. To add, assuming the mediator has knowledge in the area of dispute, then the mediator may be able to bring in alternative solutions to increase the range of opportunities for settlement. This too is a closed process meaning you can talk more freely without the risk of what is said being used in the court process.

My goal in providing the above strategies is to help people out of the adversarial process, a process known to actual perpetuate conflict. This is also with the knowledge that parental conflict alone is the best indicator for the outcome of the children. The greater the parental conflict, the greater the risk of behavioral problems, drug and alcohol problems, academic failure, early onset sexual behavior and mental health problems for the children throughout their lives.

If your parenting dispute is at court or even at risk of going to court and you feel it is careening out of control and you want to get things back on track, then do consider these options. The downside is low and the upside may very well be your time, money, your life-long relationship with your child and your child’s well-being. It’s up to you. I’m here.

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