If you don't let them talk, they won't listen to what you have to say."
Former President Jimmy Carter, 1994

In August, 1996 the Supreme Court authorized the implementation of a pilot project in Family Law Master Region 17, that would require parents who were seeking a divorce, establishing paternity, or modifying existing agreements, to attend a parent education class and participate in mediation if there was a dispute regarding custody or visitation. The Court received $25,000 from, the Division of Criminal Justice Services (formerly Criminal Justice and Highway Safety Division) Court Improvement Grant to start the project. Family Law Masters Bonnie Kratovil and April Dowler were fully supportive of incorporating parent education and mediation into the case management system they had implemented in their court. As a direct result of the success of this program, three years after the project's start up, the Legislature included mandatory parent education and mediation in the Family Law Bill passed in May, 1999. But what has made this program so successful? Why has parent education been so well received and what has made mediation so popular even with the most skeptical members of the bar in the Eastern Panhandle?
To understand the program's success, we need to look at the beginning steps. It started with a table and four chairs, a phone the Director brought from home, a small classroom teachers desk contributed by the Berkeley County School system, and an old kitchen table dragged out of the break room to hold the computer. A simple beginning! Then individuals who live and work in the three counties that make up the Eastern Panhandle (Berkeley, Jefferson and Morgan) were recruited to serve as mediators, parent educators, and custody evaluators.
The program was developed by asking local people working in their own community to provide the skills, knowledge and understanding of what was needed in their area of the state. School counselors who work with children at all grade levels, and have completed the WVU Masters Degree in Counseling volunteered their time to work with court personnel to create the parent education curriculum. Attorneys, counselors and others were recruited and trained to mediate cases. An advisory board was established to provide guidance and to give the Program Director and Family Law Masters feedback on the community's reaction to the new program. The board consisted of individuals from many disciplines including education, legal services, a state representative, day care provider, the local domestic violence organization, a therapist, and a judge. All of these individuals live and work in the Eastern Panhandle and understand the needs of this community. This involvement on the part of members of the local community has been a key factor in the program's success. Another strength of the program was having one individual be responsible for coordinating and facilitating the administrative responsibilities of the program. These duties include: hiring and overseeing performance, approving contractors' invoices, scheduling and conducting screenings, deciding which cases are appropriate to mediate, referring cases to several independent contractors and designing training sessions. The Director also maintains a working relationship with the Family Law Masters while preserving a wall of confidentiality between the Program and the Court. When there were questions regarding a case, the Director was able to approach the other Law Master to get an answer. This helped the Director in establishing policies for the program. Screeners and mediators learn confidential information that must not reach the Family Law Masters, so that their ability to make fair and impartial rulings is not jeopardized. Frequently the Director is contacted and asked to address issues regarding difficult mediation sessions, security concerns and questions regarding the status of cases. When attorneys have questions about the progress of their cases, these issues need to be addressed by someone knowledgeable about mediation and also the court process without involving the Family Law Master who is conducting the hearing in the case.
The parent education component has had a far-reaching impact on this community and the pilot program. In this 1-1/2 hour class, parents receive information to assist them in helping their children through the difficult adjustments that occur during separation and/or divorce. Parents learn what to expect in court and how decisions will be made regarding their children if parents do not reach an agreement. They learn how their behavior may negatively impact their children and receive tips on how to make this transition time less stressful on the children. Parents learn how these decisions and their own behavior impacts their children. A male/female team teach the class which offers a balanced perspective. Most of the instructors are school counselors who draw on their experiences in working with children who suffer from the fall out of high conflict parental relationships and then divorce. Parents that have attended parent education class are prepared for what will happen in court making that experience less intimidating. Both Family Law Masters have reported a marked improvement in the attitudes of parents who come to court since the classes began. Parents are pleasant and seem better prepared to handle the outcome of the hearing. The improved attitudes have made working with parents easier and transformed the courtroom into a less contentious and more productive environment.
Another reason for the success of the program is the concerted effort made to protect the client/attorney relationship and a strict policy of not revealing any information learned in screening or mediation. Parents must divulge personal information in pre-mediation screening so that the screener can determine whether mediation is appropriate. Parents are assured that the information will not be revealed to the other party or to the Family Law Master. They have to be willing to openly discuss issues of concern to them, that if revealed, could impact their case in court. Every effort is made to insure that this information is not divulged to court personnel thereby protecting the integrity of the process. When the issue of domestic violence or substance abuse is revealed, parents are encouraged to let their attorney know, and are informed about resources in the community that can be helpful to them. In the mediation, parents are encouraged to review the agreements with their attorneys before returning to court. While attorneys are certainly permitted to attend mediation sessions, in most cases the parties attend on their own and speak in their own behalf.
Fairness and consistency have also made this program successful. There are always people ready to test the limits of any system and it happened in this program as well. Parents have shown up for hearings without first attending parent education, or did not cooperate in scheduling mediation sessions. Both Family Law Masters responded with firmness and consistency by requiring that parties participate in these programs.
Another key factor in the success of the program has been the impact mediation has had in resolving disputes. During mediation, parents talk about their concerns and what is important to each of them in having access to their children. Mediation is not a passive process where someone else makes choices for the parents. It is an opportunity for each parent to talk openly about the issues that concern them. And there is the opportunity for each parent to learn how to listen to the other. Often parents comment that they had never before heard or knew that something was of concern before hearing it in mediation. Professor Tom Patrick of WVU Law School relates how one mediation client described mediation:
"Mediation helps you to talk, but they don't tell you what to think."
Even when agreements are not reached, parents still benefit because often they have a better understanding of the other party's point of view, and observed and learned a new way to communicate with the other parent.
The benefit of mediation can best be described by relaying an experience that took place in a mediation about a year ago. Both parents had been working hard for almost two hours. They had determined which weekdays and weekends the children would be with both of them. Christmas, Easter and summer vacation schedules were easily established. Then we came to birthdays. Every year the daughter would be with her mother on her birthday and with her Dad the Sunday following her birthday. Then came the son's birthday. Mom turned to me and said "My son is to be with me on his birthday. I carried him for 8½ months, I went through a painful and lengthy delivery. I have nurtured and cared for him all his life. I want him to be with me on his birthday." There was no doubt in the room she was firm on this point and not about to change. Then Dad spoke up, "He is my son too, and I am one half responsible for his being on this earth. I've spent my lifetime providing for him, making sure he had the things he needed, and I've helped him grow into a fine young man. I want him with me on his birthday." There was a silence that could be cut with a knife. We had reached an "impasse" - a predicament for which there was no obvious solution. The discussion would go no further until the tension in the room eased. Naturally, I found myself searching for the "right" solution. But, how could anyone judge who had "the better reason" for having the son with them on his birthday, Mom or Dad? Besides, as the mediator that was not my job. My duty was to keep the conversation going. So I turned to Dad and asked him to tell me about past birthday celebrations. Describe what they were like? Dad began by stating that his son's birthday is the most important day of the year for him. It is always a big event. His father's birthday is the same day so they have a double celebration. His mother and father would come over and help with preparations in the morning, getting the backyard ready, cleaning the grill. His mother would make his father's favorite cake with a special butter cream frosting. Later, family and friends would arrive bringing salads, covered dishes, birthday gifts for his son and his father, and games to play during the cookout. It was easy to hear the joy in his voice as he described the day-long celebration. Then he went on to say, "I am really looking forward to my son's birthday this year. You see, my dad passed away four months ago, and I just don't know if I can get through the day without my father there and without my son there too."
Without any hesitation Mom immediately turned to Dad and said "I had no idea how important this day was for you. Of course, our son will be with you on this birthday and every birthday from now on." Dad assured her it was not necessary for the rest of their son's life but at least this year it would mean a lot to him. The issue was resolved. Once Mom had the opportunity to really hear why this day was so important to Dad, she was more than willing to work with him. Unlike litigation, mediation provides a safe and open environment for both parents to communicate their concerns and resolve the differences between them. Successes like this do not occur in every mediation. But those that do continue to remind us of the value of having mediation available in the court process.
In a recent conversation, an attorney observed that a great many negotiations and settlements take place on the way to the courthouse, or on the courthouse steps. She conveyed a certain pride in her voice at the number of agreements she had brokered over her 20 years in family law practice. But one must wonder if the courthouse steps is the best place to resolve issues that relate to our children.
The Director of the program has spent hundreds of hours interviewing parents in pre-mediation screenings and has heard numerous stories about the fear and panic parents experience when going through the court system. They are often stunned at the outcome of their cases. Negotiations move quickly with little exchange between parents and suddenly a settlement is reached. They complain that they never had a voice in the court. Parents describe how their attorneys appeared before the Family Law Master and worked out a deal and they had no voice in the outcome for their children. Parents were often perturbed by the "matter of factness" with which their case was decided. Often when we do something on a regular basis it becomes an automatic process with little thought or feeling about its impact on others. For most parents, their individual case is very painful to them. In most cases, mom and dad walk out of the court and must continue a parental relationship for many years to come, carrying the memory of this experience with them.
With the serious nature of crime among our youth, as evidenced by the recent school shootings, one might think it would be better to move these conversations out of the last minute settlement negotiations and into mediation where there is time to argue, discuss and then fashion lasting solutions. There, the two people most knowledgeable about the situation and the persons who have the most important role in their children's lives can make the important choices.
The program's success was built gradually. It began with minimum financial resources, cooperation and experience from the community, especially the local Bar, leadership from the Director, and commitment and courage from the Family Law Masters. Add to that education for parents and most importantly the mediation process which gives voice to the parents who are most affected by the decisions made in the court process. This program is successful because it is an idea whose time has come.