Parenting coordination was first developed in California in the 1980s as a response to family law cases characterized by elevated levels of conflict and repeated trips to court. The Special Master Program, as it was then known, was established to help parents resolve ongoing child-related disputes through a combination of consensus-building and decision-making, steering parents away from court and providing a more holistic, balanced alternative to the conflict and expense of adversarial court processes.
Under this program, parents were referred to mental health professionals who sought to resolve parenting disputes through mediation but, if mediation failed, were empowered to resolve those disputes through arbitration. Although these professionals initially worked without any common guidelines, a group formed in 1992 to share their experiences and collaborate in the development of a common concept of parenting coordination.
Today, both legal and mental health professionals work as parenting coordinators. Groups have formed to discuss standards and promote best practices in Alberta, British Columbia and Ontario, all working under variants of the basic parenting coordination model currently promulgated by the Association of Family and Conciliation Courts.
In a nutshell, contemporary parenting coordination involves a trained professional who works with parents, over a long period of six to twenty-four months, and sometimes longer, to implement the parenting plan contained in their final order or agreement. As with the Special Master Program, parenting coordinators first attempt to resolve parenting disputes through a process very much like mediation, but, if settlement cannot be found, will resolve those disputes through a process very much like arbitration. It is a child-centred process that includes collateral goals such as helping the parents learn to communicate more effectively, keep their children’s needs and interests front of mind, and resolve future disputes without intervention. Mental health professionals who work as parenting coordinators have special training in family law, mediation, arbitration and decision-writing, while legal professionals have training in family systems theory, family violence, child developmental psychology and conflict management.
Parenting coordinators are restricted to dealing with final parenting plans. They cannot make decisions that make significant, long-lasting changes to those plans; they cannot appoint people as guardians, or deal with issues about support and children’s special expenses; they cannot give someone parenting time or contact who does not already have it; and, they cannot make decisions about relocation.
The limitation of parenting coordination to the implementation of final orders and agreements is purposeful. It is not a process intended to be used develop parenting plans, and most parenting coordinators would not want to be caught in the awkward position of creating parenting plans in competition with the court, or of assisting in the implementation of interim plans subject to the possibility of court interference upon the application of an aggrieved party.
Although the restrictions on the nature and scope of parenting coordination are sensible and have been established for very good reasons, there are times when they nonetheless chafe.
I have recently been contacted by a number of lawyers, involved in unrelated cases, eager to get their clients out of the court system and prepared to try an outside-the-box approach to parenting coordination.
In one case, the parties are the parents of a very young child, for whom a final parenting plan would be singularly unhelpful, the needs of a two year old being very different from those of a five year old starting school, and from those of a twelve year old with homework, a soccer team and obligations to friends. In another case, the cost of parenting coordination by a lawyer was prohibitively expensive and counsel sought to divide the parenting coordination role between a mental health professional charged with dealing with day-to-day disputes and a legal professional who would be on hand to make decisions when the mental health professional could not find settlement. In another, the ongoing development of a parenting plan for three younger children needed to be paired with the adjustment of child support from time to time and decision-making with respect to extracurricular activities.
The dissatisfaction and discouragement of these lawyers with traditional litigation processes, and their recognition of the unsuitability of those processes, has led me to develop a number of participation agreements aimed at providing clients with rather unorthodox, long-term, custom-fit dispute resolutions processes based loosely on parenting coordination. While there are some aspects of parenting coordination I see as inviolable when working within that framework – dealing only with final orders and agreements, hiring a parenting coordinator who will both mediate and make decisions, and locking parents into a lengthy service contract – parenting coordination is no more than a mediation-arbitration hybrid, and the overall concept can be adapted to match the specific needs of specific families.
In the case of the parents with the very young child, my dispute resolution participation agreement specifically states that the process is not parenting coordination. It affirms that it is an arbitration agreement under the local Arbitration Act and that the parties are committed to the process as a consequence of the act and their execution of the participation agreement. It allows me to work with the parties to develop their parenting plan over the course of a lengthy renewable term using mediation and, when mediation fails, arbitration. While I will be working with the parties to hone their communication skills, diminish conflict and address parenting disputes in the manner of a traditional parenting coordinator, I will also work with them to adjust their parenting plan when there has been a change in circumstances – not a material change, just a “change” – that suggests an update may be necessary.
In the case of the parents wishing to split my role, I developed a participation agreement that allocates the functions of the parenting coordinator between a mental health professional, the “therapeutic parenting coordinator,” and myself, the “legal parenting coordinator.” The parents must sign a release giving the therapeutic parenting coordinator and I absolute freedom to communicate amongst ourselves in order to minimize the duplication of effort and keep me up to date on the parties’ evolving conflict. The agreement also states that it is an arbitration agreement under the local Arbitration Act and that the parties are committed to the process as a result of signing my agreement.
In the case where child support and extracurricular activities are on the table, my participation agreement states that the process is an ongoing process of mediation-arbitration, and reads more like a med-arb agreement than my standard parenting coordination agreement, with the significant exception that my retainer is tied not to the resolution of a dispute but a specific period of time. The parties are committed to the process as a result of the legislation and my agreement, and I may compel the production of financial information in addition to the usual raft of information about their children. Settlements and agreements on support are registrable with the local support enforcement agency.
All of these participation agreements contemplate an ongoing process, to which the parties are committed for terms ranging from twelve to twenty-four months. During my retainer, the parties waive their right to engage in further litigation, apart from appeals as may be permitted by the Arbitration Act. The agreements specify the legal issues, or aspects of those issues, that are within my authority and, more importantly, those which are not. The processes yield no settlements or awards that are “final” and invariable, although the preconditions which must be met before altering those settlements and awards varies.
It is entirely appropriate to maintain the procedural boundaries of parenting coordination when engaged in traditional parenting coordination processes. This helps to ensure a common base-line of understanding among the bench, bar and public, develop practice standards with a degree of uniformity, and makes it easier to promote parenting coordination as an alternative to endless post-trial applications involving relatively trivial disputes. However, the flexibility of arbitration in family law disputes and the limited nature of the constraints imposed by the Arbitration Acts allows the dispute resolution model provided by parenting coordination processes to be adapted to better fit the particular needs of particular families, and that really is the point of this column. These processes aren’t “parenting coordination,” they’re something else altogether, a hybrid of a hybrid of mediation-arbitration.
I sincerely appreciate the creativity of the lawyers who brought these families to me. Developing a dispute resolution process so different requires not only a willingness to reconsider legal norms and reappraise the value of established processes, but a not insignificant degree of courage. As we struggle to address the shortcomings of litigation in the resolution of family law disputes, it is important, I think, to maintain the questioning attitude of these lawyers and always ask ourselves whether there is a better way.
I was delighted to have the opportunity to think outside the box and build a series of bespoke dispute resolution processes in consultation with counsel. It seems to me that there is plenty of room to develop imaginative and innovative alternatives to business-as-usual when counsel are willing and able to identify the disconformities between the circumstances of their clients, their clients’ dispute and the established dispute resolution frameworks. As long as counsel are working with a dispute resolution professional with the requisite training, the elastic quality of mediation and the mutable nature of arbitration can be leveraged to create specialized dispute resolution processes designed to accommodate these disconformities and better meet the needs of individual families and their disputes.