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Mediation for child access purposes

(25 Posts)
TobyLeWolef Wed 05-Oct-11 17:03:28

I'll try to keep this brief:

XH and I have been divorced for 8 years. No court order in place re the children (aged 10 and 12).

Children live with me, going to XH every other weekend, Friday evening until Sunday evening.

Until recently, XH collected them from school and gave them dinner, and I would pick them up after work at around 6.30pm.

I have now changed my working hours so I pick them up from school every day.

XH got his solicitor to write and say he was taking me to court for doing this. I replied with a very long letter explaining my reasons for changing the arrangement, and my reasons for thinking that a court order would be a bad idea.

I have now had a 'phone call from a mediator, saying that they would be sending me a letter re attending mediation about this.

My questions are this:

Will I have to pay for this, despite not requesting it?

What can they actually do? (I know what mediation is -- I just don't know whether it will definitely lead to a court order being made.)

Thanks in advance!

balia Wed 05-Oct-11 20:58:17

Well, hopefully mediation will help facilitate a discussion between you leading to an agreement without having to resort to court. They can't force you to do anything. Mediation is a step that has to be taken prior to a court application, so it does appear that your XH is serious about this happening. Would it be possible to see this in a positive way and try to come up with a compromise?

If mediation fails (for whatever reason) they write a letter to confirm it has been tried, that's all. It is the subsequent court proceedings that result in an order.

Has to be said that if you have unilaterally changed a long-standing arrangement that was working for the children, you'll need some pretty cast-iron reasons why you did so. Going from seeing Dad every weekday to seeing him once a fortnight is a MASSIVE change for children.

TobyLeWolef Thu 06-Oct-11 11:42:10

Oh, don't worry. I do have good reasons.

And I have to say that I won't take kindly to any implied criticism of my decision in this thread, or anywhere else. I have deliberately given very few details because I don't want to be outed and I have a feeling this could get nasty (the case, not the thread), but suffice it to say, this was not a decision taken lightly.

Thanks for the info, though. That's just what I needed to know.

So if we can agree in mediation, what happens then? If we agree on a solution, will that definitely still lead to a court order being put in place? Or is there something else that we sign which isn't as rigid as a court order, so long as we can agree?

STIDW Thu 06-Oct-11 12:50:20

I don't think balia implied criticism - what was said is law. Generally courts see maintaining the established status quo as being in the best interests of children unless there is impartial independent professional (teachers, social work, doctors etc) evidence that they aren't surviving satisfactorily.

When parents have agreed an arrangement is satisfactory and it in the best interests of children there needs to be a very good explanation why it is no longer satisfactory and a parent has unilaterally taken it upon themselves to alter the arrangement.

TobyLeWolef Thu 06-Oct-11 13:00:23

Sure. I'm just saying. It's a very touchy subject for me, and I really don't want to go into the reasons, but they're good.

I really just wanted factual info, although I do understand that any thread is fair game for being judged.

WibblyBibble Thu 06-Oct-11 15:37:56

When I went to mediation it worked on a donation basis so you just give what you think you can afford- can be nothing if you are hard up.

TobyLeWolef Thu 06-Oct-11 15:43:32

I did ask yesterday, and the woman said they will check and see if I'm eligible for public funding, but if I'm not I will have to pay. I know I'm not eligible for legal aid, so it's unlikely I'll be eligible for anything here, either.

It just annoys me because it's my XH who wants to talk to me through a mediator because he is incapable of doing so like a normal person without someone else being there. Yet I'll have to pay for it.

Still, it'll likely be cheaper than court, so if it avoids that, it's a bonus.

cestlavielife Thu 06-Oct-11 15:47:46

on the face of it it looks like you should attend mediation to come to a compromise.

without knowing reasons why it doesnt make any sense from outside - if nothng else has changed apart from your work hours and they still going to his every other weekend, Friday evening until Sunday evening then it cant be welfare issue.

if you cann now do the piuck ups from school then it would make logical sense to maybe split the after schools evenly ?

I dont think anyone can give any views without knowing reasons and of course you dont have to give reasons why on here.

but whatever the reasons are, if sitting with mediator helps you explain to ex why you doing this then surely it best for all?

TobyLeWolef Thu 06-Oct-11 15:57:17

I'm not complaining about mediation, as such, although I would definitely prefer no court order. Or to be able to talk this through with him like adults <sigh>

Snorbs Thu 06-Oct-11 16:29:46

Taking what you have written at face value (with all due caveats about details you have withheld for good reason) it sounds like you made a unilateral decision to change contact arrangements without discussion or compromise and to the substantial detriment of the amount of time your ex can spend with the DCs.

I'm sure there is more to it than that and I'll take your word that you have good reason to make this change. But if (and this is a big if, with all due caveats etc) your ex is feeling that you are so determined this is the right thing to do that there is no chance of him getting you to change your mind, then TBH I'm not surprised he's suggesting mediation. I would probably do the same if I were in his shoes.

If you do come to an agreement in mediation then it's not binding like a court order is but (as I understand it) it can be used as evidence of intent if it ever did end up in court. Eg, if you and your ex agree that he can see the DCs every other weekend and (say) half the schooltime afternoons then if you later decide to block all contact he could show the mediation agreement as what both you and he originally agreed to do.

TobyLeWolef Fri 07-Oct-11 10:20:33

Like I said, several times, good reasons. And they will be shown as such.

But anyway, thank you. Your last paragraph is exactly the kind of information I needed! I want to avoid a court order precisely because it will force the time my ex can spend with the children to be legally set-out and therefore not flexible in his favour. I don't want to have to refuse a request from him to take them on holiday or have them for an ad-hoc extra weekend because his parents are visiting. At the moment I am able to say yes to these things.

youllbewaiting Fri 07-Oct-11 10:30:57

In my experience if it goes to court the 12-year-old would have a say in what contact they want. not just the parents.

TobyLeWolef Fri 07-Oct-11 10:51:20

That is the other reason I don't want it to go to court. It would be horrendous for the children. I can't stress enough that my reasons are good. They really are, and not just in my opinion. And, without going into details, the current situation is absolutely the best thing for them.

Let's just say that my XH is not all he seems sad

cestlavielife Fri 07-Oct-11 11:33:26

court doesnt rule out flexibility - it will set a minimum. not a mximum. it should not mean there can never be flexibility.

eg mine said "and any other contact as agreed between both parties". allowing for flexibility and extra contact outside the set times.

it certainly should not mean you have to "refuse a request from him to take them on holiday" - that makes no sense at all. why would you have to refuse such a request? unless court order is going to rule out all holidays for him? why would it do that?

TobyLeWolef Fri 07-Oct-11 11:43:00

So I wouldn't have to stick to the court order to the letter, then? That seems a little pointless.

And I genuinely don't know the answers to the questions in your last paragraph. That's why I posted this hmm

Snorbs Fri 07-Oct-11 12:41:31

A contact order sets out the minimum amount of contact the non-resident parent should have with the child. The parent-with-care is obliged to ensure the child is available for contact at the times the contact order says that contact should go ahead.

However, the court recognises that sometimes you have to be a bit flexible to accommodate real life and so expects parents to negotiate sensible changes as required - eg, to swap weekends to fit around holidays, or to adjust the times a bit to deal with after-school clubs or parties.

If, however, the PWC is stopping the non-res parent from seeing the child at the times the court says s/he should then the PWC can take the non-res parent back to court and ask that the existing contact order is enforced in some manner.

If both parents can subsequently agree that, actually, it would be best if the non-res parent saw the child more often then they can make that change without having to go back to court. The critical bit is about having both parents agree to the change.

Indeed, as long as both parents agreed then you could ignore the court order entirely and sort it out between yourselves. For instance, a contact order written when the child was 5yo may need to be substantially different (and a hell of a lot more flexible) by the time the child is a teenager. You could go back to court every few years - and, if there's no way the parents can come to any sort of mutual agreement then that may still be necessary - but it would be better all round if the parents could reach a compromise between themselves.

TobyLeWolef Fri 07-Oct-11 13:22:41

it would be better all round if the parents could reach a compromise between themselves.

Ha! You are preaching to the converted with this bit grin

Thank you very much. That whole post was incredibly useful and informative.

Snorbs Fri 07-Oct-11 13:25:11

Bugger, the third para should (of course) read:

If, however, the PWC is stopping the non-res parent from seeing the child at the times the court says s/he should then the non-res parent can take the PWC back to court and ask that the existing contact order is enforced in some manner.

TobyLeWolef Fri 07-Oct-11 13:33:53

I didn't even notice, but knew what you meant!

Bugsy2 Fri 07-Oct-11 13:43:15

TLW, I don't think you have to go to mediation or can be forced to go, but it can reflect badly if it goes to court & you didn't. My brother's ex refuses completely & utterly to speak to him & refused to go to mediation regarding access, so the whole thing had to be done through solicitors & then the court. The judge was not pleased with her on so many counts, but took a dim view of the fact that she refused to attend mediation.
You definitely shouldn't have to pay for it though!
Really hope it all works out for you.

cestlavielife Fri 07-Oct-11 14:22:02

taking your exH at face value and knowing nothing -he could go to court and say -
i had arrangement which was every day after school.
she stopped that.
i want to reinstate every day after school.
maybe - you go to mediaiton and agre a compromise but because eh doesnt trust you he decides to go to court to say well in mediation we agreed mutually (say) i pick up three days, she does two.
so i want that set out in court order. so she cant stop it again without consequence.

court order could say
"holidays to be agreed by mutual agreement"
or it could be more specific.

what does your ex want?

from his point of view, if going to court is only way to reinstate his weekday contact, this is what he will do... but he has offered mediation so that in principle is good thing (unless he controlling abusive person in which case it isnt)

but if it goes to court and you can give good reasons why he should not pick them up from school then who knows what judge may decide.

TobyLeWolef Fri 07-Oct-11 14:48:28

He is indeed controlling and abusive, which makes me think that perhaps the letter I wrote to his solicitor made her stop him and say "you're being a little bit ridiculous -- try mediation instead", perhaps because he wouldn't immediately get what he wanted by going straight to court.
I guarantee you it wasn't his idea to choose mediation instead. And in the original letter I received from his solicitor, she said something along the lines of "put things back as they were or we will have no option but to request a court order, which we believe a judge would sign without hesitation".

So it looks to me like, now his solicitor is in possession of all the facts and both sides of the story, she's backtracked a little, from "we will take you to court" to "how about you discuss this first?".
I hope I'm right about this!

Why is it a bad thing if he's offered mediation and is controlling/abusive? What would be the connection? Is it just that he might be able to try to bully me without it being in front of a judge? Or is there more to it?

I'm not sure I made myself clear, btw. I am happy to go to mediation about this. I resent having to, just because he point-blank refuses to talk to me about anything like an adult (last time I tried to arrange a time/place talk to him about something in a reasonable manner, he tried to bring his dad hmm. He is an intelligent man in his 30s). So I would never refuse to go. And I would go to great lengths to try to keep this out of court because, silly as it sounds, I want the children kept out of it as much as possible. They're already upset because he makes them feel guilty for things all the time, and makes them feel like they're stuck in the middle (their words, not mine).

I'm sorry. I'm not drip-feeding, I promise. I just really don't want to give too much information about this. I just need to know what the procedure is. And I'm grateful for all the help.

cestlavielife Fri 07-Oct-11 15:57:24

mediation doesnt always work if one party is controlling and abusive.
eg that person is unwilling to listen to actually compromise and mediate.
eg my exP asked me to come to "mediate" but - he simply used the session to try to bully me into one thing and one thing only - no compromise - there was one thing i would not concede on (ie being made to live next door to him - he wanted to use the session to 2make " me go lvie next door to him...yes mad. ) but i was happy to discuss times/dates for contact - but he wasnt interested in discussing those. and he was bringing up irrelevant issues as to why i was bad all the things i ahd done to him in the past etc . it was a disaster.

in short, the mediator person agreed after two such sessions there was no point. mediation can work only if both parties want to mediate / compromise eg which days of week can he pick them up? you say no days he says five - mediation would presuambly lead to two day/three days or one week on one week off.

if he wants them all and you want none - and neither of you prepared to budge - how will mediation work?
unless you offering something else in exchange?
mediation will be a waste of time for both of view if neither of you offering any kind of compromise over contact. but if either on legal aid you might have to go thru process anyway

if there are good reasons for him not picking them up from school (child welfare or whatever) then in all honesty you will benefit from him being told so by a judge. your dc wont necessarily have to attend court - but may be asked by cafcass officer to give their views.

balia Fri 07-Oct-11 20:01:21

I hesitated about posting again because of your reaction last time - I didn't wish to upset you and clearly this is a difficult situation and you are feeling somewhat beseiged? But let me reassure you that I would have said exactly the same to any friend embarking on the same course of action. I think your instinct to find out what you can about the process is a good one - you have already found out useful info and had some assumptions corrected.

So please understand what I have to say is factual (AFAIK, and you have already had brilliant advice from some of the fabulous, qualified people on here who will correct any mistake I make, as an experienced amateur).

I think it is unlikely that the solicitor is back-tracking due to your letter. They are following a standard proceedure; writing to ask you to reinstate contact, then suggesting mediation, next stop, court. I understand you are annoyed at having to pay your share but if mediation results in agreement it will have saved you legal fees etc, and not much to pay if you think about the benebfits to the children of the resolution of conflict between parents. If, as you say, your reasons are such that you are not able to compromise then yes, it is unlikely that mediation will work; but then neither would sitting down to discuss it like an adult (as you mention as the alternative to paying for mediation) and it will be very quickly apparent that mediation will not work so you won't have to pay for more than a couple of sessions.

On a positive note, the court process may not be as bad as you fear. Your DC's will probably need to talk to a Cafcass Officer, and whilst my own experiences have not been entirely positive on the whole thay do this part of the job in a fairly gentle and sensitive manner. (Cue hoards of people recounting their own terrible experiences to prove me wrong!) They may wish to see the children with you and with your ex, possibly in home environments. The children don't have to go to court or anything 'Hollywood'-ish, and both children's wishes have to be taken into account (which is not the same as being able to make the choice themselves, BTW.)

However, I would say that given you feel you can't give too many details here, you would be very wise to get advice from a professional to whom you can tell the whole story. From what you feel comfortable to post here, I can only warn you (not judging) that further to my first post, it is very difficult to imagine a reason that a judge would find compelling to explain why your ex is suddenly not safe/healthy to have the children for an hour or so after school, but is safe/healthy to have them for a whole weekend.

TobyLeWolef Mon 10-Oct-11 14:49:54

I didn't say that he wasn't safe/healthy to have them, as such. There are just various reasons that the new arrangement is better for the children, and I am confident in those and happy to discuss them in mediation.

It's a horrible situation, and much as I'd love to go into the whole story as a form of catharsis, I won't and I can't.

The fact is, in the original letter from my XH's solicitor, she said that the matter would be referred to Court as the next step if I didn't back down, and that she felt sure (being in possession of none of the facts/reasons from my side) that a judge would sign a Court Order forcing me to revert to the previous arrangement "without hesitation". Now all of a sudden, after I have explained to her my reasoning in a letter, I'm being contacted by a mediation company.

Oh, it's all so upsetting and horrible. I'm very grateful for the information I've been given on this thread about the process. I feel more informed now. Thank you.

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