Court-Sponsored Divorce Mediation

There are several types of court-sponsored divorce mediation programs. In some states, a court can order a couple to mediate certain issues (usually disputes over child custody and visitation).

To find out whether your state requires or makes available court-sponsored divorce mediation, ask the court clerk. Or, go to Nolo’s Legal Research Center, at www.nolo.com/lawcenter/statute/other_courts.cfm, and click on your state. There, you’ll find a listing of state court websites. Go to the website of the court where your divorce is pending to look for mediation information.

Most court-sponsored mediation programs have these three things in common:

• they are usually free (if they charge a fee, it is often calculated on a sliding scale)

• the discussions are often limited to parenting issues, such as child custody and visitation, and

• the process usually lasts only one or two sessions.

However, the rules and procedures for mediation will vary from state to state, and from court to court. Ask the court clerk for materials on your state’s divorce mediation program.

1. How Court-Sponsored Mediation Works

Every state’s court-sponsored mediation program works a bit differently. However, these programs generally have the same broad outlines.

a. Getting Started

When parents with minor children file a divorce action in court, they will automatically be kicked into a state’s mandatory mediation program (or given information on any available voluntary program). Unmarried couples might get into a court-sponsored program whenever one parent files a legal action concerning the other’s parental rights and responsi­bilities.

The written notice may tell you the date and time when you should report for mediation, or may instruct you to contact the office to sched­ule a time. Some states and courts hold mandatory orientation sessions, explaining the mediation program. You may also be required to fill out some paperwork, such as a questionnaire about your dispute.

b. The Mediator

Many court mediators are full-time employees of the court system; others are in private practice and work for the court part time. Most court mediators must meet strict training and educational requirements, although this wasn’t always the case. Today, you have a pretty good chance of being assigned a skilled and experienced mediator through a court-sponsored program.

In many court-sponsored programs, you will be assigned a mediator at random, from a pool of available mediators. Sometimes, a particular mediator will be assigned based on the facts of your case (for example, if your child is physically disabled and has special needs, you might be assigned a mediator who has experience with these issues).

QMake your needs known if your mediation involves special issues. If you

think your case requires a mediator with special training, educa­tion, or language ability, make this request to the staff. They will prob­ably accommodate you if they are able.

Once a mediator is assigned to your case, do some checking to make sure that the mediator doesn’t have a conflict of interest. (See Chapter 3, Section C, for more on conflicts of interest.)

c. Inside the Mediation Session

Mediation sessions might take place in a conference room in the court­house or another government building. If you are referred to a private mediator, the mediation might be held at the mediator’s private office. In either case, flip charts, blackboards, and tissue boxes often adorn the room.

Some programs and mediators use private caucuses; others do not. If you want the chance to speak privately with the mediator, ask for a caucus; if it is not prohibited under the rules of the program, the media­tor probably will agree unless your spouse strongly objects.

d. If You Reach an Agreement

If you are able to come to an agreement in mediation, the mediator will probably draft a document setting out the terms of your agreement on custody, visitation, and any other issues you covered. Once you sign the agreement, it will be sent to the court for approval.

If your agreement involves important legal rights, consider having a lawyer or law coach review it before you sign. Some mediators will give you a draft of the agreement with instructions to take it to your lawyers to review within a set number of days. If no objections are raised, they will then forward it to the court. If the mediator does not make this proposal, you can make it yourself and offer the following “lawyer review” provision:

PROCEDURE FOR LAWYER REVIEW

The above-stated terms may be deemed to reflect the agreement of the parties unless the attorney for either party notifies the [mediation program] in writing of objections within five business days.

You may also want your agreement to include a dispute resolution clause, indicating that you and your spouse will return to mediation if you can’t work out any future problems living up to the agreement. After all, your children will grow up, and your parenting arrangements may require some changes. If you wish to include a dispute resolution clause, ask the mediator to add one to the agreement. Here is some sample language you can present to the mediator.

PROCEDURE FOR RESOLVING FUTURE DISPUTES

The parties agree to return to [Name of Court-sponsored Mediation Program] if they are unable to resolve any proposed changes, disputes, or alleged breaches relating to this agreement.

Of course, if mediation is mandatory in disputes over child support or visitation, you won’t need a provision like this.

e. If You Don't Reach an Agreement

The rules of your court-sponsored program will determine what happens if you can’t reach a settlement. Some programs will offer you additional sessions if the mediator believes you could reach an agreement given more time, but other programs limit each case to a single session.

If you cannot reach an agreement in the time your program allots to you, you can:

• continue negotiating with your spouse on your own

• hire a private mediator and try again

• ask the court to appoint an independent evaluator to make a recom­mendation (available in some communities)

• submit the case to arbitration. Arbitration is most appropriate when a couple is unable to agree on some critical point, such as the amount of spousal support (alimony). Some states prohibit arbitra­tion of child custody and support, although the trend seems to favor increased use of arbitration.

• litigate the issues in court.

2. Mandatory Mediation

Generally, you don’t have to do much to comply with a mandatory mediation requirement. Most programs require only that you show up for at least one session—you don’t have to agree to anything.

Despite these minimal requirements, there may be good reasons why you do not want to mediate (or you don’t want to mediate in the court- sponsored program). If you believe that it would not be a good idea to attend mandatory mediation, you may be able to avoid it. Typical reasons that would convince a court to let you out of the program include:

• Reaching an agreement before mediation. If you and your spouse can come to an agreement on parenting issues, you won’t have to use the court’s program

• Choosing a private mediator. If you would like to try mediation but are leery of the court’s program, you may be able to opt out of the court program by using a private mediator or community mediation center. You will have to pay for the mediation if you go this route, but it will give you an opportunity to reach a comprehensive agree­ment, choose your own mediator, and spend more time negotiating.

• Domestic violence. Some states will excuse you from mandatory media­tion if you can show that you have been a victim of violence or abuse in your marriage. Other states will require you to mediate, but will allow you to meet with the mediator separately, rather than in joint sessions.

• Substance abuse. Some programs will excuse you from mediating if your spouse has problems with alcohol or drug abuse.

• Child abuse. If the court determines, through past convictions or evidence presented, that one parent engaged in child abuse, the court may let the other parent opt out of a mandatory mediation program and go directly to a judge. In these cases, courts have a greater interest in supervising the disposition of parenting issues, to make sure children are protected.

3. If the Mediator Will Make a Recommendation

As noted earlier, mediators in some states have authority to recommend how your case should be decided if you and your spouse cannot reach an agreement. Even in these states, however, not all local courts give mediators the power to recommend.

When you are first referred to a court-sponsored mediation pro­gram, find out whether the mediator has the authority to make a recom­mendation. If the mediator has this power, you will be under more pressure to settle and therefore not risk a negative recommendation, and you should plan your mediation strategy accordingly. You will also want to avoid any conduct that could turn the mediator against you.

a. Mediation Strategies

Here are some tips for dealing with a mediator who has the power to make a recommendation:

• Know—and address—applicable legal standards. If you and your spouse are not able to reach an agreement, the mediator will have to make a recommendation based on specific legal standards. If you can base your presentation on those standards, it will make it easier for the mediator to recommend in your favor. In most states, the standard for determining custody is “the best interests of the child,” which includes such factors as:

✓ the child’s health, safety, and welfare

✓ any history of abuse against the child, and

✓ the nature and quality of contact between the parents (that is, each spouse’s willingness to be a coparent with the other spouse).

• Show that you can get along with your spouse. The mediator will be im­pressed by your ability to act civilly toward your spouse. It suggests maturity, emotional stability, and reliability—all traits a mediator would want to see in someone asking for custody or liberal visitation. On the other hand, if you cannot control yourself in the presence of your spouse, it may discourage the mediator (and therefore, the judge) from wanting to see you have custody of your kids.

• Mind your manners. Mediators—especially those who are full-time employees of the court-sponsored program—are trusted coworkers of the family court judges. If you act disrespectfully to your mediator or otherwise make a poor impression, the judge will often find out about it, and may hold it against you in making a custody award.

b. Challenging the Recommendation

If you do not agree with a judge’s decision that is based on the mediator’s recommendation, some states give you the right to challenge the decision in court. Typically, you would cross-examine the mediator to show some important fact was omitted, misstated, or misinterpreted in the recommendation the mediator prepared for the judge. You might show, for example, that the recommendation failed to mention that your spouse was, until recently, a heavy cocaine user. You should know, however, that these challenges don’t succeed very often.

QGet help if you plan to challenge a mediator's recommendation. It’s a tough

job to overcome a mediator’s recommendation. If you plan to try, consult with an experienced family lawyer or law coach—and consider having the lawyer represent you at the court hearing.

D.