One of the first things you may have noticed when beginning the separation and divorce process is the number of jobs and titles beyond the obvious “attorney” and “judge.” The roles of Mediator and Parenting Coordinator are two of these roles and they can be difficult to understand and distinguish.
Let’s consider first what these two roles have in common. Both Mediators and Parenting Coordinators strive to help separating and divorcing parents to reach agreement on their disputes. Mediators and Parenting Coordinators both serve as neutral professionals who help separating/divorcing parents to have productive conversations to resolve issues pertaining to the divorce and separation. Lawyers and mental health professionals can serve in both of these roles.
In Maryland, Mediators are guided in their work by the Model Standards of Conduct developed by the Maryland Program for Mediator Excellence. These standards are not laws. There is also no official certification process for Mediators in Maryland. By contrast, Parenting Coordinators appointed by the Court are bound by the provisions of Maryland Rule 9-205.2. The Maryland Rules, which prescribe how the legal system works, are technically not laws but are considered to have the force and effect of law. Maryland Rule 9-205.2 describes the scope of the role of the Parenting Coordinator, including very specific limitations on the authority to make decisions to resolve disputes between co-parents. If a Parenting Coordinator is agreed upon outside the court process - say, possibly, through a global settlement in a collaborative divorce case - the Parenting Coordinator is not automatically bound by the provisions of Maryland Rule 9-205.2
Mediators are more commonly engaged early in a family law matter to assist in creating the Parenting Plan or negotiating the Marital Settlement Agreement. The goal at this juncture is to establish the overall framework and structure. Attorneys may be present, particularly when the mediation occurs within the court system. But parties can also go directly to a Mediator without even filing a case in Court.
Any agreement as a result of mediation carries the same weight as a Court Order issued by a judge. However, one very important thing to note is that, while evidence in a custody merits hearing or trial is openly “on the record,” mediation is confidential. The Mediator will typically prepare a Memorandum or a draft Agreement which embodies any agreements that were reached between the co-parents. But the discussion that led to these agreements and anything else that happens during the mediation is protected from disclosure.
Sometimes Parenting Coordinators are brought into a family law case that is pending in Court. The Parenting Coordinator is then assisting the co-parents in parallel with the litigation. In this circumstance the appointment of the Parenting Coordinator may be intended to address issues, such as difficulties with communication, that otherwise might be addressed through a costly custody evaluation. However co-parents referred to a Parenting Coordinator during litigation typically are not reporting other circumstances that would demonstrate the need for a custody evaluation, such as a history of substance abuse, mental health issues, physical health concerns, or criminal involvement for one or both co-parents.
More commonly, Parenting Coordinators come into the picture – through either a Court Order or by the Agreement of the co-parents – at the end of the court case or after the parties reach an Agreement. Legal custody, or decision-making with respect to the health, safety and welfare of the children, is usually shared when a Parenting Coordinator is appointed. In this typical scenario, the Parenting Coordinator meets regularly with the co-parents to help them develop better communication, to provide assistance and guidance in following all aspects of the Court Order or Agreement, and to help protect the children as much as possible from continued conflict. Under Maryland Rule 9-205.2, parenting coordination is not confidential. A Parenting Coordinator may be called to Court to testify in a subsequent proceeding in the capacity of a fact, but not expert, witness.
Occasionally, when decision-making is shared, one parent may have “tie breaker authority” - which is the capacity to make decisions in the event of an impasse. In this instance, the co-parents may be required to have a prescribed number of hours or sessions with a Parenting Coordinator or Mediator to discuss the issue upon which they do not agree before the tie-breaker authority may be utilized.