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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 09-25-2015, 12:43 PM
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Default Mediation Next Week: Poker Strategy

I have mediation session with ex scheduled for next week to try and settle custody and access issues for 2 year old son on a final basis with a courthouse mediator.

If mediation fails, judge will be setting trial date at next TMC in November.

From reading the comments on here it doesn't seem to be a good idea for honest litigants to be completely forthright and put your bottom line on the table in mediation when the two parties are far apart, especially if the other party is high conflict.

Is it wise for me to start out asking for more than I am actually willing to settle for and play it like a poker hand?

If she agrees to what I'm asking for great, in reality that's not likely to happen but I would like to leave myself wiggle room to appear to back down and compromise and then ultimately end up close to my bottom line.

Ex wants Sole, all decision making w me having access and table CS. She is also specifying that she gets son on every birthday, every Christmas and has permission to travel and relocate without my consent. (Ex has LAO lawyer)

I'm planning on going into mediation seeking joint w parallel parenting and increasing parenting time until the summer before S2 starts school full days when we would change to 50/50 shared. (I am self-repped).

Thoughts and advice welcome.

Last edited by YoungDad23; 09-25-2015 at 12:54 PM. Reason: correction
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Old 09-25-2015, 01:42 PM
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Separation agreement negotiation seems so much like haggling at a garage sale, where the seller states a ridiculously high price, the buyer offers a ridiculously low price, then they settle in the middle at a fair price. Both parties are aware that the two initial amounts are ridiculous and both have a secret final amount they are willing to live with, then there's a lot of bluffing because each side hopes that it won't reach that amount. If there is an overlap between their secret numbers, they can reach it, and if there isn't, they walk away.

I don't personally think that's the approach that should be brought to mediation. Nobody can just walk away with nothing resolved. A high conflict party makes a ridiculous initial offer, but doesn't seem to realize it's ridiculous and isn't prepared to do any budging. A reasonable party starts with their fair final offer out in the open, and also isn't prepared to do any budging. If both parties are reasonable, mediation works. If both parties are high conflict, mediation fails quickly.

The problem comes when one party is high conflict and one is reasonable. Then, the high conflict person won't budge, and the mediator pressures the reasonable one to move away from the fair final offer. The reasonable person sometimes caves in just to get things over with and avoid court.

I'm of the view that mediation is only for two reasonable parties who need help with the small details. If even one party is high conflict, you need a trial. But you still have to get through mediation first.

Does your ex have a lawyer? It seems like they always advise to go in asking for the stars like it was a marketplace haggle.

You could go into your mediation commenting that your ex's offer that sole custody, limited access, table CS, holiday hogging, free travel and relocation, is appropriate, should be for YOUR side. If she thinks it's in the best interests of the child to have only one parent, that parent may as well be you. The mediator may clue in and say stuff about how the child needs both parents, and it's typical to have joint custody and 50-50 access, etc, and that might get through to your ex what she has refused to hear from you. Then you can agree with the mediator and find out pretty quickly if your ex is going to as well.

You could go in asking for 50-50 from the start, and have wiggle room to let it be negotiated down to only reaching that by school age.

Or, you can just be honest, say that your offer is fair and in the child's best interests, you don't intend to budge, and you just hope that the mediator can help your ex see that she's being unreasonable. Again, you can find out pretty quickly how that will go.

I really look forward to the day when joint custody and 50-50 access is standard, and the onus is on the party who disagrees to prove that something else is best before it takes place. Instead of nothing being standard and everybody all across the map exaggerating their demands, and huge fights dragging on for years. This isn't the difference between a couple of bucks for an old stereo you aren't even sure works. This is a child's life.
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Old 09-25-2015, 02:40 PM
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Quote:
Originally Posted by Rioe View Post
I really look forward to the day when joint custody and 50-50 access is standard, and the onus is on the party who disagrees to prove that something else is best before it takes place. Instead of nothing being standard and everybody all across the map exaggerating their demands, and huge fights dragging on for years. This isn't the difference between a couple of bucks for an old stereo you aren't even sure works. This is a child's life.
Thanks Rioe, great post and advice! It basically covers most of the issues in my case and my biggest concern that this is a little boy's future we are deciding on.

I would like to be optimistic about mediation being a way to come to an agreement with my ex but I think you're right, she is probably not going to budge on asking for sole custody of our son based on the history of our case.

Mediation may only be a required step for her to get funding from legal aid for the trial.

At out last conference her lawyer said that she had not even submitted a request yet and asked for an adjournment to schedule a legal aid settlement conference (which it turned out I'm not eligible to participate in because I am self-repped).

Our case management judge has tried to warn my ex (and me) that going to trial would require both of us to present the court with every bit of dirt we have on each other and will likely make co-parenting our son afterwards much more difficult.

Day to day there is no drama between us and there hasn't been any since the criminal charges against me of historical DV were withdrawn by the crown with no conditions. She threw every false allegation in the book at me in the first six months after paternity was established but thankfully it backfired and her credibility is shredded.

The mediator is the same person we saw 18 months ago for intake just after the criminal charges were laid This is the lady who told me flat out that my ex is a manipulative, high conflict person and that I was definitely being alienated from my son by her and her mother.

I plan to be gracious and humble and let my ex do most of the talking when we get there to show her hand before I say much of anything.
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Old 09-25-2015, 03:48 PM
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She has too much financially at stake to budge. Assuming she wants to sponge off you and the system as much as she can, she needs full custody and CS to cement her chosen lifestyle.

She has LAO so going to trial isn't a big financial concern for her. You're self repped so she doesn't really have to fear costs if she loses (unless you nail it as well as WD did).

When kids are really young it is very hard for the Mother to see the Father as an equal parent or to even consider shared parenting. But kids don't stay young for long and in the end it's a better way to live if you can manage it.

Best of luck.
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Old 09-25-2015, 05:18 PM
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@Fighting, unfortunately I think you are reading the situation bang on. I feel that my ex had our son as a career choice and a meal ticket. It is how she was raised and all she knows.

I might be foolish in hoping that she would have realized by now that I am in this for the long haul and totally committed to our son. I guess I will see where she is coming from next week.
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Old 09-25-2015, 09:28 PM
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For unemployed women, its sole custody, remarriage to somebody rich or minimum wage work - in that order.

If she gets sole custody between CS, govt benefits, maybe spousal she has to expend minimal effort.

If she can't, then getting remarried becomes very important to support herself

If she can't, her lack of ambition etc.... dooms her to working at walmart for minimum wage. The kids now actually become an expenses rather than a profit center....

One day, I am sure we will have shared custody by default in Canada - its just a matter of time. Most Canadians support it, its only the legal industry that doesn't.

I would say that I am willing to negotiate everything including timing (a transitionary time) but share custody is the one condition.
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Old 09-26-2015, 11:49 AM
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Quote:
Originally Posted by Links17 View Post
I would say that I am willing to negotiate everything including timing (a transitionary time) but share custody is the one condition.
Thanks Links, a good starting point for me to take at the start of mediation.

Joint custody with schedule to reach 50/50 by school age my main goal.

If ex isn't even willing to discuss joint custody of S2 in any form then mediation is pointless and I will save my time and energy for trial.

I will let the mediator do all the talking as to why that is in child's best interest to see if she can make any headway with ex.
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Old 09-26-2015, 12:05 PM
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Make sure to consider even if she agrees to a transition that she will try to sabotage it (moving away etc..)

The transition has to be less than 1 year, assuming she has sole custody now.

I would start with 50/50 non negotiable and the add the transition just before mediation is called off. It prob won't make a difference but it might give the mediator something they might feel like they can work with.
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Old 09-26-2015, 01:04 PM
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Quote:
Originally Posted by Links17 View Post
Make sure to consider even if she agrees to a transition that she will try to sabotage it (moving away etc..)

The transition has to be less than 1 year, assuming she has sole custody now.

I would start with 50/50 non negotiable and the add the transition just before mediation is called off. It prob won't make a difference but it might give the mediator something they might feel like they can work with.
I will definitely be stepping up my starting point to 50/50 to start the mediation and work with the mediator from there.

At this point, neither of us has custody of S2. The closest thing she has is Primary Residence, ordered late last year on her cross motion for Sole which was denied against my motion for overnight access in which I got everything I was asking for and have had more regular overnights added since then.

Ex can't move because she lives in subsidized housing with her mother (OW lifer). I also know they have put in for a transfer to a larger unit based on S2 needing his own room but that could take years in our region due to the backlog.

I just finished downloading and reading the OW directive 3.9 on Dependant Children to see how much money she will lose if S2 lives with each of us 50% of the time, because in opinion that is what has driven insistence on Sole Custody and even the false allegations of DV and child abuse.

At our last TMC, I asked for leave to amend my custody application from "Joint" to "Joint, alternatively Sole" which he said he would agree to if mediation fails. Judge even complimented me on doing my research.

Case management judge also said costs would be awarded if our case goes to trial to settle custody. Ex may believe that doesn't apply to her on OW but thanks to WD and a few others, it could definitely be a factor.

Would she pay, probably not, but it would put a another big strike against her.
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Old 09-26-2015, 03:53 PM
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My ex-wife's parents have been on welfare for the past 20 years too. I once read being on welfare runs on the family.
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