Mediation in Oregon

Mediation is a process in which the parties meet with a mediator for the purpose of attempting reach an agreement about issues related to a family law matter. Mediation is common regarding issues of custody and parenting time (visitation), and mediation of custody and parenting time issues is mandatory in many counties in Oregon. Mediation of all issues other than custody and parenting time is possible but does not take place in most cases. Both types of mediation are discussed below.

Mediation Regarding All Issues Other Than Custody and Parenting Time

Mediation of issues in family law cases (other than custody and parenting time) is an optional, non-mandatory process. Mediation is not commonly used for issues other than custody or parenting time. Although mediation of such issues as property division, debt division, spousal support, child support, and other issues, can be very valuable, it can also be very expensive. If the parties are already represented by attorneys, hiring another attorney/mediator adds an additional layer of expense for the parties. If you decide to use a mediator, you definitely should also hire an attorney of your own with whom you would consult on an ongoing basis in order to make sure you are negotiating a fair resolution of your issues. Remember that it is not the job of the mediator to protect you. The mediator does not represent you, and the job of the mediator is merely to help the parties reach an agreement. It is the job of your own attorney to make sure that agreement is fair and appropriate for you. There are definite advantages and disadvantages to mediating issues, and if you are thinking about the possibility of using a mediator, you should consult with an attorney to discuss whether mediation of this type is right for you.

Mediation Regarding Custody and Parenting Time

Although the information below relates specifically to mediation in Marion and Polk counties, Oregon, the principles apply to mediation of all custody and parenting time plans. In Marion and Polk counties, in cases involving custody or parenting time of children, mediation is mandatory. You should view mediation as an opportunity to resolve your issues without the expense and stress of litigation. The purpose of this article is to provide tips and suggestions for successful mediation.

A. The Mediation Process. Mediation is a process in which the parties meet with a mediator (usually together in the same room at the same time) for the purpose of attempting to reach an agreement on custody and parenting time. This process is confidential which means that whatever you say in the mediation session is not supposed to be repeated by anyone outside of the mediation session (except to your attorney), and what you say in the mediation cannot be used in court against you. The mediator has no power of any sort. The job of the mediator is simply to try to facilitate an agreement between the parties, and the mediator will not be making any decisions or recommendations to the court or anyone else about your case. It is important for you to understand that the motivation of the mediator is to try to broker a deal between two parents. It is not the job of the mediator to protect your interests or the interests of your child. It is your job to be prepared for the mediation so that you can protect your own interests and look out for the interests of your child.

Mediation might last only one session or it might last several sessions. Mediation ends when the parties reach a full agreement or a partial agreement or when mediation fails because no agreement can be reached.

B. Preparing For Mediation. For mediation to be successful for you and your child/children, you must take responsibility for being fully prepared before the first mediation session. You need to take the following steps:

1. Read very carefully the county model parenting time plan. In Marion County and in Polk County, the plan is called Rule 8.075 (although the Marion 8.075 and Polk County 8.075 plans are slightly different).

2. Make an appointment to meet with your attorney to go over your strategy and to formulate your own parenting plan proposal.

3. CREATE A PARENTING PLAN. You need to be prepared to walk into your first mediation session knowing exactly what you would like your parenting plan to look like, knowing exactly which points are non-negotiable and which points are negotiable. You do not need to have a final version of a typed plan. You simply need to have an outline of the essential points, and it would be ideal if your outline of essential points would be typed. This is a document you could take to the mediation session (with a couple of photocopies) so that you could show the mediator and the other parent your plan.

C. The Importance Of The Little Details. Mediators are often satisfied to have the parents reach agreements which contain broad generalizations but which lack specific details. In defense of the mediators, some parents are able to work well enough together so that a general parenting time provisions are adequate. Also, working out a parenting plan which addresses all of the essential little details is a more difficult process, and so both the parties and the mediator may feel like a non-specific parenting plan is “good enough.” Non-specific parenting plans, however, are rarely good enough, and they set the parties up for litigation and difficulty later. In 1981, the Marion County Rule was two pages long. It is now eleven pages long. Twenty years ago, parents were in constant litigation over little details because the parenting plans were not specific enough. Rule 8.075 is long and detailed because it is designed to eliminate all of that expensive and stressful litigation families used to have to endure because of the too general parenting plans. You need to do the hard work of negotiating the small details now in order to avoid difficulties and litigation in the future. I have listed below in this document the details I consider to be absolutely essential for every parenting plan except for those parents who are among the most friendly, amicable and cooperative with regard to their child/children. Keep in mind that you might be friendly and cooperative right now, but twelve months from now your relationship might be entirely different, and so it is better to deal with the details now.

D. Negotiating Custody. It is beyond the scope of this document to discuss the nature of custody and to discuss the reasons for and advantages of certain types of custody arrangements. Those topics need to be addressed in detail with your attorney long before your first mediation session. It is important, however, for you to understand some often misunderstood basics.

1. “Custody” has nothing to do with “parenting time.” Parenting time arrangements can be anything the parties agree upon or the court orders regardless of what the custody arrangement is.

2. “Sole Custody” means sole decision-making. “Joint Custody” means joint decision-making. Joint Custody does not mean equal-timesharing, and Joint Custody has nothing to do with timesharing at all.

3. There are only two types of custody in Oregon: Sole Custody and Joint Custody. Some mediators have tried to reach successful mediation of custody issues by suggesting to the parties that they might reach an agreement to Joint Custody with just one of the parties having final decision-making authority regarding some issues. This is rarely a good idea. For those times when you think it might be a good idea, consult with your attorney carefully regarding this because there are extremely important legal rights which are affected by such an arrangement.

E. How The Age Of A Child Affects The Parenting Plan. The parenting plan for children age 5 and older is usually the same for children from age 5 to age 18 (the age of majority in Oregon). However, when children are younger than age 5, the parenting plan needs to take into consideration a variety of factors including the age of the child and the relationship each of the parents has and has had with the child. Commonly, parenting time plans will have a provision for the initial parenting time with one or more changes to the parenting plan as the child grows older. Generally, very young children are better served by shorter more frequent periods of parenting time while older children are better served by less frequent but longer periods of parenting time. You should consult carefully with your attorney about how to formulate a parenting plan that is best for children in this situation.

F. Use The Mediator’s Plan Or Use The County Guideline As A Starting Point? Each mediator has a form he or she uses as a framework for a parenting plan. While these forms are generally good, they often are not specific enough to cover what I consider to be essential details a parenting plan should cover for your protection. For the most common parenting time situations (for example where one parent is getting basically alternate weekend parenting time), you are better off to use the county rule as your basic framework for the parenting plan because the county plan anticipates nearly every conceivable problem which might arise. If you elect to go with the mediator’s plan, you simply need to make sure that plan covers all of the essential details described below.

G. Essential Details Which A Parenting Plan Must Cover In Order To Avoid Future Confusion, Conflict And Litigation.

1. Overview. Although nailing down the details of a parenting plan is usually preferable in order to avoid conflict, when you are mediating your parenting plan, you need to think about whether you are negotiating from the position of the residential parent or from the position of the non-residential parent. Almost invariably, when there is confusion about what the plan means or when the terms are more general and less detailed, the residential parent is in a stronger position than the non-residential parent. Because a lack of specificity in the plan strongly favors the residential parent, the non-residential parent is the party who more needs to be concerned about a lack of detail. The residential parent also should seek a detailed parenting plan, but the lack of a detailed parenting plan hurts the residential parent less.

   The parties may vary from the parenting plan any time they wish by agreement. The point of having the details worked out is so that, if there is a disagreement, the parents will always have a schedule upon which they can rely.

2. The Weekly Parenting Plan (During The School Year). The most common parenting time schedule during the school year is an alternating weekend schedule in which the non-residential parent exercises parenting time from Friday afternoon through Sunday evening. For non-residential parents whose schedule would allow for an overnight on Sunday, a common extension of the weekend is to allow parenting time until Monday morning (and this is the basic assumption of Marion County Rule 8.075).

   The next extension of the weekend for parents who agree is usually the addition of the Thursday night at the beginning of the weekend. Beyond this, parents will sometimes agree to add overnights at the beginning or end of the weekend, but these extensions are by no means automatically agreed upon by the parties nor are the extensions automatically granted by the court.

   The parenting plan should clearly set forth the starting time for the weekend as well as the ending time. A common start time is after school, but Rule 8.075 provides for 7:00 p.m. The ending time on Sunday is 7:00 p.m. according to Rule 8.075, but parties often will vary this time as well. When parenting time runs to Monday morning, the ending time is often the time the non-residential parent delivers the child to school, to the residential parent, or to day care in the morning.

3. Monday Holidays During The School Year. Marion County Rule 8.075 provides that, when Monday is a recognized holiday or non-school day, the alternate weekend parenting time should continue until either Monday evening or Tuesday morning. Polk County Rule 8.075 continues the weekend parenting time until 7:00 p.m. on Monday evening. This enables a parent to have that weekend to exercise parenting time for the full three-day weekend.

4. Mid-Week Parenting Time. Marion County Rule 8.075 provides for the non-residential parent to have parenting time every other Wednesday from 5:00 p.m. to 8:00 p.m. if the child is in school or 10:00 a.m. to 7:30 p.m. if the child is not in school. Polk County Rule 8.075 does not have this provision for mid-week parenting time, but feel free to negotiate for it. Some parents will agree to allow the non-residential parent to have an overnight or perhaps two overnights of parenting time. You simply need to negotiate whether and to what extent such parenting time takes place keeping in mind that mid-week overnights can be disruptive for children, especially children of school age.

5. Summer Vacation. Marion County Rule 8.075 as well as Polk County Rule 8.075 provide for alternating two-week blocks of time with the children during the summer. Parents will commonly change the summer parenting schedule to alternating one week blocks of time so that the children are not separated from one of the parents for such a long period. Sometimes people will use alternating three week blocks of time when the children are older.

   A different but common parenting plan continues the school year parenting plan through the summer with the added provision that either parent can take up to three separate seven-day (non-consecutive) periods of parenting time during the summer. It is not unusual for one of the parents to have a job which intensifies during the summer. This type of parenting plan makes sense for that type of parent who does not really have much time available to spend with the children during the summer. In this type of situation, also, it is not unusual for that parent (who has their slow season of the year during the fall and winter) to have the option of exercising three seven-day periods of parenting time any time throughout the year (except it cannot over run the other parent’s periods of holiday parenting time such as Thanksgiving, Christmas or birthdays, etc.).

   • a. Defining The Beginning Of Summer Vacation. In both Marion and Polk County’s Rule 8.075, the non-residential parent’s first period of parenting time begins at 7:00 p.m. on the first Friday following the day school adjourns, and in odd-numbered years, the non-residential parent’s first period of summer parenting time begins at 7:00 p.m. on the third Friday after school adjourns.

   • b. Defining The End Of Summer Vacation. In Polk County Rule 8.075, the summer vacation is defined as ending at 7:00 p.m. “on the sixth day before school resumes.” In order to figure out who gets that first weekend following the sixth day before school resumes, you must refer to which parent got the first alternating weekend of the year and then use your calendar to go forward and figure out whose alternating weekend follows the sixth day before school resumes. In Polk County Rule 8.075, in even-numbered years, the non-residential parent’s first weekend of the year begins at 7:00 p.m. on the first Friday after New Year’s Day. In odd-numbered years, the non-residential parent’s first alternating weekend of the year begins on the second Friday following New Year’s Day.

     In Marion County Rule 8.075, the summer vacation is to find it’s ending at 7:00 p.m. on the Friday of Labor Day weekend even if this cuts short a parent’s two week block of time. The non-residential parent then has Labor Day weekend as his or her first alternating weekend in even-numbered years, and the non-residential parent has the weekend beginning on the first Friday following Labor Day weekend as his or her first alternating weekend in odd- numbered years.

6. Winter Vacation. Rule 8.075 in both Marion and Polk Counties defines the Winter Vacation as beginning on the day school adjourns at 7:00 p.m. and ending on the day school resumes at 7:00 p.m. In Rule 8.075, in even-numbered years, the non-residential parent has parenting time during the first portion of the Christmas break, and the residential parent has the second portion of the Christmas break with the transfer time in both Marion and Polk Counties being 10:00 a.m. on Christmas morning. In odd years, this situation is reversed. The following is a list of common variations to the Winter Break parenting time:

   • a. For parents who decide to switch the children on Christmas Day, people will often change the transfer time to noon or some time in the late afternoon or evening so that the children do not have to put away their new presents and go to a different house so early in the morning on Christmas Day.

   • b. Some families have a tradition of celebrating the holiday on Christmas Eve rather than on Christmas morning. Parents in this situation will often agree to have one parent always have Christmas Eve (from 8:00 a.m. to somewhere between 7:00 p.m. and midnight for example) while the other parent always receives the children late on Christmas Eve so that the children always wake up with him or her on Christmas morning.

   • c. Some parents will change the transfer time to some time during the day of December 26 so that in alternating years each parent will get all of Christmas Eve and all of Christmas Day.

7. Thanksgiving Holiday. Rule 8.075 in both Marion and Polk Counties defines this holiday as beginning on the Wednesday before Thanksgiving at 7:00 p.m. and ending on the Sunday following Thanksgiving at 7:00 p.m. This is a holiday which the parents alternate with the non-residential parent having the holiday in even years and the residential parent having the holiday in odd years. The following are common variations used by parents:

   • a. Some parents prefer to have Thanksgiving with the children every year, and this is easily made possible by having one parent have the children from 8:00 a.m. to 3:00 p.m. or 4:00 p.m. while the other parent has the children for the remainder of the day and evening.

   • b. A different way to approach having a Thanksgiving celebration with the children each year is for one parent to have the children on Thanksgiving Day while the other parent has the children on the day following Thanksgiving. The parents would then alternate the scenario in following years so that each parent would have Thanksgiving Day every other year.

8. Spring Break. Spring vacation is defined by both Marion and Polk County Rule 8.075 as beginning at 10:00 a.m. on the day after school adjourns. Polk County Rule 8.075 defines the end of Spring vacation as 7:00 p.m. on the day before school resumes. Marion County Rule 8.075 defines the ending of Spring vacation as the morning school resumes whether or not the child is in school.

   It is not unusual for people to ignore Spring break (especially with small children). Sometimes parents will divide Spring break in half on Wednesday or Thursday evening.

9. Other Major Or National Holidays Or Special Days. Except as listed below, the court does not prefer to recognize other major holidays or special days. The parenting plan is more simple and easy to follow if the parent who has the children already under the standing parenting plan is allowed to keep the children during those holidays and special days such as the 4 ^th of July, Memorial Day, and all of the other Monday national holidays. The following are the common exceptions:

   • a. Labor Day Weekend. Under Marion County Rule 8.075, the summer schedule ends at 7:00 p.m. on the Friday of Labor Day Weekend (even if this cuts short a parent’s two-week block of time). The non-residential parent’s first alternating weekend in even-numbered years begins 7:00 p.m. on the Friday of Labor Day weekend, and the non-residential parent’s first alternating weekend in odd numbered years begins on the first Friday following Labor Day weekend.

     Polk County deals with Labor Day by stating that the summer vacation from school ends at 7:00 p.m. on the sixth day before school resumes, which has the effect of giving Labor Day weekend to whichever parent would have the Labor Day weekend as his or her normal alternating weekend. In order to figure out whether Labor Day is your alternating weekend under Polk County Rule 8.075, you have to figure out who had the first weekend of the year and then use your calendar to observe the alternating weekends until you get to Labor day weekend. In even-numbered years, the non-residential parent’s first alternating weekend begins at 7:00 p.m. on the first Friday after New Year’s Day. In odd-numbered years, the non-residential parent’s first alternate weekend begins the second Friday following New Year’s Day.

     When in doubt, it is better simply to use the version of 8.075 that applies to your county, but the parties may reach agreement on any sort of schedule they wish regardless of what Rule 8.075 may say.

     Marion County Rule 8.075 ends the Summer on the Friday of Labor Day weekend at 7:00 p.m. Labor Day weekend is the weekend Marion County uses to define alternating weekends. The non-residential parent’s first alternating weekend in even-numbered years is Labor Day Weekend. The non-residential parent’s first alternating weekend in odd-numbered years is the weekend following Labor Day weekend.

   • b. Halloween. Halloween can be an important holiday for young children especially, and so both Marion County and Polk County Rule 8.075 provide for the residential parent to have Halloween on even-years and the non-residential parent to have Halloween in odd years beginning at 5:30 p.m. and ending at 9:00 p.m. Sometimes parents agree to split the evening so that each parent gets part of the time in every year.

   • c. Mother’s Day and Father’s Day. Both Marion and Polk County Rule 8.075 provide for mother and father to have Mother’s Day and Father’s Day respectively from 10:00 a.m. to 7:00 p.m.

   • d. Parent’s Birthday. Both Marion and Polk County Rules provide for mother’s birthday and father’s birthday to be with those parents at the discretion of the parent who is having the birthday from 5:00 p.m. to 8:00 p.m. if the birthday falls on a school day or from 10:00 a.m. to 7:00 p.m. if the birthday falls on a non-school day. Some parents simply celebrate during their own regularly scheduled time without making a special provision for birthdays.

   • e. Children’s Birthdays. Both Marion and Polk County Rule 8.075 suggest that the residential parent have a child’s birthday in even years and that the non-residential parent have the child’s birthday in odd-years from 5:00 p.m. to 8:00 p.m. if the birthday is a school day and from 10:00 a.m. if the birthday falls on a non-school day.

10. Delivery And Pick-Up. Marion County Rule 8.075 provides as follows for all parents who live within 75 miles of each other (or within a distance that allows for exercising alternating weekend parenting time):

    • a. The non-residential parent picks up the child to begin the parenting time.

    • b. The non-residential parent is responsible for returning the child to end the parenting time if that return time is taking place on Monday morning as contemplated by Rule 8.075. The residential parent is to pick up the child at the end of the parenting time if that time ends in the evening. This places an additional transportation burden on a parent who wishes to have the child stay an additional overnight (such as a Sunday overnight until Monday morning).

      Polk County Rule 8.075 simply provides that the non-residential parent “shall pick up the child at the beginning of the visit and the residential parent shall pick up the child at the end of the visit.”

      The reason the Polk County rule is written in this fashion is because the parent who is seeking to have a child returned is the parent who is motivated to pick the child up on time.

      The parenting plan should state that a parent is not required personally to deliver or pick up a child and that the parent may select reasonable alternative people to provide the delivery and pick-up services. This prevents the other parent from refusing to turn over the child because you are not picking the child up personally.

11. Child Care Expense. For young children who are still in need of child care, the parent who will be exercising parenting time is generally responsible to pay for the child care during that period of parenting time. Sometimes parents will coordinate and use the same child care provider.

12. First Option Child Care. Occasions may arise when you or the other parent may need to use a child care provider. If the child care is for a short period of time (an hour for example) parents would not generally be concerned about requesting the right to be the first option to provide the child care. On the other hand, if child care is going to be needed for four hours or more, for example, it is not unusual for parents to negotiate a first option child care provision requiring that the parent who is not exercising parenting time be the first person called to provide the child care. Some parents like this type of provision, but some parents definitely do not. For example, some parents feel a first option child care provision provides the opportunity for the other parent to “spy” on dating or other activities. Nevertheless, first option child care is a common provision.

13. Long Distance Parenting Time. When parents live far apart (too far for alternating weekend parenting time), major adjustments need to be made in the parenting plan. It is beyond the scope of this document to discuss long distance parenting plans because there are simply too many variables. If you have a long distance parenting plan, you should consult carefully with an attorney and perhaps with a counselor.

14. No Deal Until Attorney Approves. You should have your attorney review the proposed mediated agreement before it is finalized. This is extremely important because your attorney has the experience and expertise to be able to identify serious problem areas in the proposed agreement. You should be very clear with the mediator that there is no agreement until you have reviewed the proposal with your attorney.

15. Conclusion. There are many other details people will commonly put into parenting plans, but the above list identifies the minimum essential issues which you must address to your satisfaction in order to have a minimally reasonable parenting plan. If you fail to address the details now, you could be headed for years of litigation in the future.