Written by attorney Melissa L Isaak

Therapeutic Mediation

Mediation is a common and helpful tool used by the Courts to effectively and efficiently resolve divorce cases. The main issues commonly dealt with during mediation include property division and child custody. Normally, the mediators are attorneys who have years of experience in domestic relations and are able to impart their knowledge upon the parties to give them a good idea of what may happen if their case is brought in front of a judge. Although mediation is an effective tool in dealing with property division, mediation largely fails to deal with issues surrounding child custody.

Mediation is a process in which a neutral third party acts to encourage and facilitate the resolution of a dispute without imposing a settlement. [1] These mediators are attorneys, trained in mediation techniques, with the experience and knowledge in how the courts equitably divide property. Although these mediators are very effective in property division, they generally lack the proper education and training necessary to adequately address the psychosocial issues children and families face with dealing with a divorce.

When faced with a contested divorce involving custody, the courts will often appoint a Guardian ad Litem (GAL). A GAL is a licensed attorney appointed by a court to defend or represent a child in any action to which the child may be a party. [2] These GAL’s often have no training in the social or psychological consequences divorces have on children. As a result, these consequences remain unaddressed and often resurface back in the court system in the form of contempt motions or modifications.

Therapeutic mediation in contested custody matters offers solutions to problems left unaddressed in conventional mediation. It is a child-centered process that allows the mental health professional to evaluate both parents as well as the child and provide the court with substantial evidence enabling the judge to make a custody decision truly based on the best interest of the child. This substantial evidence includes a through evaluation of the parents as well as the child and may contain the results of psychological testing. Individual and family therapy may be necessary in order to educate the family about proper co-parenting and the consequences of alienating the child. Implementing therapeutic mediation has been shown to reduce conflict in divorcing parents and reduce subsequent court filings. [3]

If the needs of the family are not being met through traditional mediation, the employment of a GAL or by the litigant’s attorney’s, it maybe necessary for the court to order therapeutic mediation. Through this process, not only will subsequent court filings decrease, but the needs of the entire family will be met.

[1] See

[2] Alabama Code § 12-15-1[2].

[3] Johnston, J., Rosenby, V., & Kuehnle, K., (2009). In the name of the child: A developmental approach to understanding and helping children of conflicted and violent divorce (2nd ed.) New York: Springer Publishing Company.

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