What is mediation in family law cases?
Mediation is a process where a mediator works with parties to help them reach agreement on various issues in their family law matter. The mediator is a neutral person trained in problem solving, and often is an attorney or mental health professional as well. Every Oregon county is required to provide some form of mediation service in family law cases. Usually those mediators are employed by the court system and can only help to resolve matters related to custody and parenting time concerns, not financial issues.
Who is a mediator in family law cases?
Mediators in family law cases are often trained as licensed social workers, psychologists and attorneys. Retired judges can also serve as mediators. In Oregon, mediation is not a licensed or regulated profession. Mediators with mental health backgrounds do not normally mediate financial issues, such as spousal or child support and property division of the relationship or marital assets. Some attorney mediators may not mediate custody or parenting time disputes, so you should inquire about a mediator’s background and the scope of the services they are able to provide before hiring them.
What kind of family law cases are mediated?
Any type of family law case may be mediated. Parties do not need to be married to mediate, so domestic partners may also use mediation. Issues such as custody and parenting time with the minor children of the relationship, child or spousal support or allocation of debt and distribution of property are all concerns that can be dealt with in mediation. The parties may mediate with or without a lawyer. Mediation may also be used to help with other kinds of family issues such as care for an elderly parent or grandparent visitation issues. The courts encourage mediation of disputes in family law cases. Litigation of these kinds of issues is normally not as efficient or cost effective, and it is often not as likely for the court to address the unique and individual needs or the parties or their children. Even family abuse prevention restraining orders may be dealt with in mediation, but it is extremely important that the safety and security of the parties be properly addressed so any agreements reached are not based on duress.
What is the cost of family law mediation?
The cost of mediation in family law cases varies from county to county and from case to case. Some counties provide mediation services at no cost through their county’s department of family services, so long as the case is filed in that county. Other counties provide mediation services, but the parties must pay a fee in addition to their filing fee to meet with a mediator who has contracted with the county to provide mediation services. Those fees vary greatly. Some services will reduce or waive the fee for low-income people. Private mediators’ charges vary. Check with your individual county to determine what the charges for these services are in your area.
What is the procedure in family law mediation?
In some counties, as soon as a petition is filed, the parent filing the petition must tell the court that there is a controversy over custody or parenting time with a minor child. The parents are then required to attend a mediation orientation session, a parenting class, and meet with a mediator to try to resolve those disputes. In other counties, the court requires the parties to attend mediation when one or more parties ask the court to hold a hearing on custody or parenting time. And in some counties, there is no mandatory requirement of mediation, but the court maintains a list of private mediators who will, upon request, assist parents in resolving custody and parenting time disputes.
If one of the parties in the case reasonably believes mediation is not appropriate because it will expose him or her to violence or intimidation, the mediation can be structured to minimize the danger, or the mediation requirement might be waived.
Even if there are no children, many counties have a number of private mediators, typically lawyers, who will assist parties in family law cases to resolve their disputes. This service covers divorces and other types of family separations.
Each party is encouraged to give information to the mediator prior to the mediation session to help the mediator resolve the dispute. Lawyers for the parties often do not attend the mediation if it is with the county’s mediator but can attend if the mediator is a private party. Lawyers may attend the mediation sessions if both parties agree. A mediator may first meet with both parties (and their lawyers), and then meet with each side confidentially, going back and forth between the parties until an agreement is reached. This is called "caucusing."
What happens at the end of family law mediation?
If the parties in mediation of custody and parenting time issues reach an agreement, the mediator will usually draw up an agreement that the parties sign. The agreement may be presented to the court for its approval. If the mediation involved financial and support issues, the mediator may draw up a memorandum of agreement, and then the parties take the memorandum to their lawyers, who complete the papers required for court approval. If the mediator is a private party and an attorney, he or she may prepare the necessary legal paperwork to effectuate the agreement. They will be then able to submit the paperwork to the court to formalize the agreement with the court without either of the parties needing to go to the courthouse at all.
On the other hand, if the dispute is not settled in mediation, then the case proceeds to hearing or trial before a judge. If a hearing or trial occurs, anything that was said in the mediation when the parties did not reach an agreement is confidential, and the court then decides the issues for the parties. The court would decide custody, support and financial issues without knowing what the parties’ positions were during mediation. Most courts have a standard parenting time schedule that they may impose if the parties do not offer a mediated plan of their own or do not have testimony from an expert. If the parties reached an agreement in mediation but could not agree on the form of the paperwork to be submitted to the court for signature, the mediator may be called to court to testify about the terms of the agreement that were reached so the court can then
enforce the mediated agreement.
Legal editor: Sharon A. Williams, June 2020
