Ask the Expert: Do You Recommend Mediation for Divorcing Parents of a Child with Special Needs?

Many attorneys suggest mediation for parents who are divorcing. We asked H. Michael Stern, Esq., MSW, an attorney and certified mediator on Long Island, how mediation can help in a divorce, especially when a child with special needs is involved.


parents fightingWhy do you recommend mediation for divorcing parents of a child with special needs?

Mediation is a process where the divorcing couple—such as the parents of a special needs child—sits with a neutral person who sort of helps open up lines of communication where communication is difficult or has broken down.

Parenting issues become critical for special needs children in terms of their care, education, social skills development, and myriad other things. If parents are not on the same page or are quarreling, that’s detrimental to the development and welfare of that child. Parents need to set aside their conflicts and work constructively to help the child, and mediation helps them do that. The alternative is to go to court and fight, and there are no standards in New York courts for children with special needs in divorce cases. It’s really important that the parents, who know their child better than anyone else, step up and try to work through the problems together. And it helps to have someone there who can guide them constructively—not make decisions for them, but guide them through the parenting dilemmas they have and help them work together for the benefit of their child.


Why is mediation especially important when a child with special needs is involved?

All children do better when their parents are getting along. But a child with special needs may not be able to speak effectively for him or herself or have the ability to really articulate his or her feelings or what they want from their parents, especially in a court situation.

Plus, there needs to be a discussion about things like the IEP. The parents can’t be quarreling about that—it needs to be a cooperative process so the child gets the special services they need. You also need to be on the same page with the type of therapy and amount of specialized care the child needs.

If you have a significantly impaired child, agreeing on a parenting plan and schedule is important so that respite is available to both parents. You need to decide who is going to be the primary caretaker and agree on a parenting schedule so that one very dedicated parent doesn’t end up sacrificing everything.


Can mediation involve experts who are familiar with the child’s treatment and emotional state, such as therapists, teachers, etc.?

Yes, if there’s any sort of lack of agreement, my feeling would be to get the experts and treatment providers involved in the discussion to give the parents the guidance they need to make better decisions for their children. I would encourage it if there’s a disagreement on a course of treatment or a course of intervention for the child. If you have parents committed to the child’s best interest and developmental opportunities, it’s about getting them the information they need to make the best choices.


Are there any situations in which you would not suggest mediation?

Mediation helps in every case unless there’s domestic violence, or if someone is trying to hide property, liquidate property or assets, or do something harmful. There should be time to try to talk it out otherwise. But in those instances, when there’s a threat of danger or dissipation of property, they should go to court.


How can parents make their divorce as easy as possible on a child who has special needs?

The most important thing the parents shouldn’t do, particularly with special needs children, is get them involved in any way in their conflict or make them the focal point in the conflict. Keep the child as far away from conflict points as possible, not involving them and not discussing anything with them, because they don’t understand and most have deficiencies in their processing.

Another tip: Parents should really develop a lot of structure for themselves and for their child, and adhere to it. It’s especially important for children on the autism spectrum. They may not be living together, and the disruption of contact with parents can be detrimental to child.

Also, maintaining the child’s education and whatever additional services the child needs is critical. It’s all about the child—parents need to keep that in mind and be committed to the child having the best possible outcome.


Do you recommend continuing mediation after divorce?

It depends if the couple needs it. Go to mediation before you go to conflict. There’s a lot of emotion when people break up and sometimes there are very bad feelings. But parents need to try to put all the personal pain aside so they can address the needs of the child. It’s a difficult thing to do, because people want to express their sadness and outrage and anger, but you want to try to get people in the frame of mind to be positive and move forward.


H. Michael Stern, Esq., MSW, is an attorney and master social worker with more than 27 years of divorce and family law experience. Stern received his divorce mediation certification and specialized training from the New York Center for Interpersonal Development, a program approved by the New York State Office of Court Administration. The Mediation & Law Offices of H. Michael Stern are located at 666 Old Country Road, Suite 555, in Garden City, Long Island. For a free consultation, call 516-747-2290 or 718-348-6723. For more information, visit