Disagreements over where parents should exchange their child. Quibbles over how many minutes a parent can speak to their child while in the other parent’s custody. Arguments over where the children should go to school, how they should do their homework, and their after-school activities. Parenting is hard enough. When parents become involved in protracted and high-conflict custody disputes, these disagreements intensify parenting challenges and place significant stress on the children.

Litigating Parenting Decisions

Separated parents turn to the court when they are unable to resolve their conflicts. Courts must make custody, visitation and parenting decisions that are in the best interests of the child. However, litigating parents have vastly different views of what is in the best interest of their child. Without a better conflict resolution framework for the parents, some high-conflict parents repeatedly return to court. Not only is this approach costly, it often leaves parents dissatisfied because litigation may end one dispute, but it does not resolve the underlying problems between the parents.

The Role of Mediation

Family law courts have recognized the limitations of the adversarial legal system to resolve ongoing parenting disputes. Over the past few decades, many states have implemented specific dispute resolution processes to resolve them. In California, Family Code section 3160 mandates that each superior court make a mediator available to try to reduce acrimony that may exist between the parties and effect a settlement on the issue of visitation. Here in the Family Law Division of Marin Superior Court, Family Court Services meets with parents for mediation and where appropriate, it issues recommendations to the Court. The Legal Self-Help Center has also assisted parents with mediation during law and motion proceedings.

Integrative Mediation

Notwithstanding the excellent services provided by Family Court Services and the Legal Self-Help Center, the Family Law Division has recognized that in some high conflict situations, the parties might also benefit from an interdisciplinary approach. In 2007, multiple high-stakes providers, including Stephen Sulmeyer, J.D., Ph.D., met with Judge Verna Adams to create and implement an additional and novel reconciliation service: the Interdisciplinary Settlement Conference (ISC).

The ISC program is distinctive in that it harnesses the skills of a mental health professional well-versed in family disputes and an independent family law attorney who specializes in custody and visitation matters. These volunteer panelists are joined by a family law judge. With this integrated team, the ISC panelists are able to offer a complementary set of skills to address the unique challenges associated with parenting disputes. By addressing the parties’ legal and psychological issues, the ISC panelists are better equipped to assist the parties with diffusing their hostility such that they can focus on the needs of their children in a more open manner. The ISC program recognizes that the parenting disputes are not just a legal event but rather an emotional process which requires a holistic approach.

An ISC settlement conference is voluntary and is typically triggered in high-conflict cases where the parties have a pending custody or visitation-related motion. Often, the ISC is scheduled upon the request of a party prior to the court’s decision. If both parties agree, the court schedules the online conference with an ISC panel using Zoom technology. Although settlement conferences are scheduled for three hours, the ISC volunteers are often able to meet for longer periods or to schedule a second session, where appropriate. If the parties reach resolution, the court typically places the settlement terms on the record, or as part of a minute order.

While it is unusual to include a mental health provider in a settlement conference, in family law disputes, the mental health provider plays an invaluable role in high-conflict matters. As an outsider to the adversarial process, the mental health provider can provide emotional support to the parties and help them focus on the emotional needs of the children. The provider can help reframe disputes and assist the parties shift from trying to “win” to better understanding the needs of their children as separate from their own needs. As an expert in the field of psychological dynamics of people going through divorce or separation, the provider plays a critical role in educating parents about how to best navigate their disputes. The use of a mental health provider complements the role of the volunteer attorney who assists in helping the parties reach settlement.

A History of Success

Since its inception, the Marin ISC program has been largely successful. Statistics gathered from 2008 through 2019 demonstrate that more than 75% of the cases settled. Although some of these settlements were temporary, in many cases, following the ISC, the parties began using therapeutic tools, such as co-parent counseling, to assist with better communication as a means to resolve disputes.

Litigation is ultimately an expensive and frustrating way to resolve custody disputes. By bringing together skilled, volunteer practitioners with expertise in mental health issues surrounding divorce and custody issues, along with volunteer attorneys and a supportive court, the ISC model has demonstrated better outcomes with lower costs, less emotional stress, and more support for the parents and the children than is possible with traditional litigation. Here, at the Unified Family Court, we are grateful for our volunteer panelists who have helped to make this program a success.