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Settlement Processes When Court Looks Like a Train Careening Out of Control
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.
canít foresee using mediation or collaborative law because either you or your
former partner wonít 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.
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:
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.
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.
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.
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 parentís
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
in the throes of litigation it doesnít mean that both parents and lawyers
canít 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.
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
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
childís well-being. Itís up to you. Iím here.
Direnfeld, MSW, RSW
Call Gary for your next conference and for expert opinion on family matters. Services include counselling, mediation, assessment, assessment critiques and workshops.
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