Often, in cases involving children, emotions are on high. For parents, children are the highest priority when a marriage is dissolving. I am often asked how to best protect and shield children from the rigors and emotional upheaval that comes with divorce. The answer is simple. Maintain a healthy and supportive relationship with the child’s other parent. Children thrive the best when they are secure in the idea that their bond with their parents will remain intact, even if the bond between the parents severs.

When custody cases proceed to court, it often happens that everyone leaves unhappy. This is not necessarily a function of the legal minds involved. Although it is true that an inexperienced lawyer can position his or her client to fail, it is also true, in my experience, that when children are involved, even in the face of less than stellar legal maneuvering, judges and courts want very much to see that children are protected. The problem, however, is that the courts never get the full picture. Most often, a custody case is heard over a span of hours (or days in more complex matters). A court cannot possibly learn all of the unique nuances that make up your family in such a short timespan. Also, courts are required to follow a specific set of rules when it comes to determining matters of custody, visitation and parental rights. Although not written in stone, courts tend to defer to traditional means of determining life altering matters. More often than not, a court’s decision, while well intentioned, just simply does not work for the family to which the decision is handed.

When at all possible, it is almost always best for all concerned to resolve custody and visitation matters without the court. The primary reason for this is that, in out of court settlement, parents are not bound by all of the strict mandates that the courts use. In addition, parents are permitted (and even encouraged) to use “outside the box” thinking and craft a parenting schedule that works now and will continue to work and grow with the family as children get older.

In cases involving children, parents are almost always required to attend a mediation session to endeavor to resolve parenting issues amongst themselves. Some people, when ordered to attend mediation, become upset or defeated at the prospect of being required to communicate and negotiate with a soon-to-be ex-spouse or other former romantic partner. However, for those that embrace the process, while the journey is difficult, oftentimes the results are far superior to what one can reasonably expect from court. There are a few reasons for this. First, at a mediation, the parties (parents) have a hand in crafting the end result. Next, mediation, while it is often considered part of litigation, is not, in and of itself, litigation. To the contrary, mediation is conducted in private, and people are free to speak their minds. As an attorney, I almost always learn something new about my client and/or the other side at a mediation, even if it doesn’t settle.

Three things to keep in mind before proceeding to a mediation:
1. Know your limits:Because of what is at stake, mediation (not unlike litigation) can be emotional and taxing. People sometimes get overly caught up in their emotions in the moment and lose the ability to think clearly. Typically, a mediation session, just like a court date, is designed to resolve a dispute. When family law issues are involved, these disputes are often life altering. In order to avoid allowing “in the moment” emotions to take over, before mediation begins, make two (2) lists. The first list should be your “pie in the sky” list that contains what you want and why you should get it. The second list should contain items or area where you are willing to negotiate. Include your absolute bottom line on list two. The goal is to reach an agreement somewhere between “pie in the sky” and your bottom line. Having these lists prepared in advance will prove invaluable when emotions run high.

2. Don’t get stuck on details: In every case that is worth litigating (and therefore mediating), there are “big” issues and, in most cases, there are smaller ones as well. At mediation, focus on the big issues. The small ones will fall into place. Too often when I serve as a mediator, I see people get ensnared on small matters that, in the grand scheme of things, have little overall relevance. When that happens, energy and focus gets depleted and the big issues often get overlooked, or worse, ignored entirely. My best example of this is as follows: Let’s say spouses have been married for 10 years and are getting a divorce. Between them, they have a house with $100,000.00 in equity, retirement accounts with a combined value of $500,000.00 and two children. They also happen to have a collection of shot glasses that they have collected from their vacations and travels over the years. The glasses cost approximately $10.00 each and can be purchased at gift/souvenir shops. The glass purchased at a shop in Paris, France is super cool and both parties want it. They spend three hours arguing over who should get it and why. They both get so frustrated that they end the mediation and never even discuss the house, the retirement assets or the kids.
If you get to a mediation and the other side presents an undesirable offer that centers on “small stuff,” ignore it at the first pass. Just don’t respond. Send a counter-offer that includes your “pie in the sky” offer on one (or all) of the “big” issues. When you get what you want and what you need from the items that really matter, the shot glass from Paris, no matter how “cool,” will not seem nearly as important.

3. Speak Up!: At the beginning of a mediation, a good mediator will ask each side to provide him/her with a brief synopsis of the issues. It is very important to make sure that the issues themselves are presented at the beginning. A mediation is very likely to be wildly unsuccessful if, when asked what the issues are during a divorce, you say: “we have a house, some retirement, and a collection of shot glasses to divide.” Because you focused on the “big issues” first, you settle all of the issues to your satisfaction. The mediator is ready to write up the agreement, but then, let’s say three hours into the mediation, you say “ok, so when do we discuss custody?” Now, a new “big” issue is on the table and the mediation is back at the beginning. In order to make sure the “big issues” get addressed early on, make absolutely sure that everyone is clear at the very beginning what the issues are. At the start of the mediation, it is expected that you and your opposition will have differing opinions about the resolution of the issues, but you need to be clear about the issues themselves.

At the Law Office of Gina Smalley, we assist people in many ways with mediation. An advocate for family law litigants for over a decade, Gina has advocated for individuals in hundreds of mediations and can assist you in negotiating a favorable result. In addition, Gina Smalley is a certified mediator in the State of Georgia and can, in lieu of representing either party, serve as a neutral mediator with an eye towards helping people reach amicable resolutions to legal issues.

Gina Smalley can be reached at 770-794-4460 or via e-mail at

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