Rule 68 - Dissolution of Marriage
Rule 68.12 - Mediation of Contested Issues in Domestic Relations and Paternity cases
1. In an effort to encourage the resolution of all contested issues in domestic relations and paternity cases, the Court establishes the requirement that parties use mediation as a means of resolving these issues. The Court may order mediation of any contested issue, including, but not limited to, child custody, parenting time, parenting plans, child support, maintenance, and property division in domestic relations cases, and custody and child support in paternity cases at any time, upon the motion of a party or the Court’s own motion.
2. All matters covered by Chapter 452, and non-prosecutor initiated paternity actions brought pursuant to chapter 210 which involve issues of custody and child support, are subject to this rule and S. Ct. Rule 88.02 - 88.08. This rule may be complied with in one of two ways:
a. The parties may jointly and voluntarily select any mediator qualified under S. Ct. Rule 88.05 and thereafter undertake mediation.
b. If the parties cannot jointly and voluntarily select a mediator and voluntarily participate in mediation, the Court may select a mediator either from the court mediator panel or a mediator qualified under S. Ct. Rule 88.05, and order the parties to participate.
3. All adult parties to any proceeding governed by this rule shall participate in a minimum of two hours of mediation, unless waived by court order upon a showing of good cause.
Voluntary Mediation
4. The mediator selected by the parties for voluntary mediation shall, at a minimum, have those qualifications set forth in S. Ct. Rule 88.05.
5. To assist in the selection of a mediator chosen by the parties, the Director of Family Court Resource Services will maintain a list of persons qualified under S. Ct. Rule 88.05 who wish to act as mediators under this rule. This list shall constitute the court maintained master list of mediators referred to in S. Ct. Rule 88.05 (b). The court maintained list shall indicate the name, office address, mailing address, telephone number, e-mail address, qualifications and current hourly rates of each mediator listed. The list shall be updated as the Director of Family Court Resource Services deems appropriate. The Family Court Committee may establish a fee scale for appointments from the court maintained list of mediators, including a sliding fee scale.
Court-Ordered Mediation
6. In the event that the parties have not voluntarily engaged in two hours of mediation or have not selected a mediator prior to the first case management conference, the Court may appoint a mediator from either the court maintained master list of mediators or any other person qualified under S. Ct. Rule 88.05.
7. Upon receipt of an order appointing a mediator to conduct mediation, the parties may file, within five business days, notification of voluntary compliance setting forth their intent to voluntarily mediate under a S.Ct. Rule 88.05 qualified mediator within 30 days of the date of the notification. Receipt of such notification will serve to set aside the appointment of a mediator and the order to mediate. A party may, for good cause shown, file a motion to extend the time to waive mediation, select their own mediator or extend the time for compliance with this rule.
8. At any time, following assignment of a mediator, a party may file a written application to disqualify the mediator for cause. A service copy of the application and a notice of the time when it will be presented to the Court must be provided to all interested parties. Within 10 days of the application being filed, any adverse party may file a denial of the cause or causes alleged in the application. If a denial is filed, the Court may hear evidence and determine the issues. If the Court finds in the applicant’s favor or no denial is filed, reassignment of a mediator shall be done in accordance with the procedures for appointment of a mediator as set out under this rule.
9. If a mediator is disqualified from mediating a case, an order shall be entered setting forth the name of a new mediator. Nothing in this provision shall limit the discretion of a mediator to refuse any assignment.
10. The Court believes that confidentiality is the essence of mediation and integral to the process. The mediator, the parties and their counsel shall at all times act in accordance with S. Ct. Rule 88.08. The mediator has a duty to be impartial and to advise all parties of any circumstances bearing on bias, prejudice or impartiality, including any past or present relationships with either party or persons related to them.
11. The mediator shall emphasize to the parties that any mediation beyond the initial two-hour session shall only proceed by the mutual agreement of both parties and the mediator. After the completion of two hours of mediation, the mediator or either party can request at any time, without prejudice, that mediation cease.
12. Confidentiality and Settlement
a. Mediation proceedings shall be regarded as settlement proceedings. With the exception of information released pursuant to S. Ct. Rule 88.06(a)(6), any communication relating to the subject matter of such disputes made during the mediation by any participant, mediator, or other person present at the mediation shall be a confidential communication. No admission, representation, statement, or other confidential communication made in setting up or conducting a mediation shall be admissible as evidence or subject to discovery except that no fact independently discoverable shall be immune from discovery by virtue of having been disclosed in such confidential communication.
b. No person who serves as a mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation.
c. All mediations shall be non-binding unless the parties enter into a written agreement as provided in S. Ct. Rule 88.08(d). A written agreement shall be binding to the extent not prohibited by law.
d. Settlement shall be by a written document setting out the essential terms of the agreement executed after the mediation’s termination.
e. An individual or organization providing mediation services pursuant to S. Ct. Rule 88, or any agent or employee of the individual or organization, may be called in an action to enforce the written settlement agreement reached following the mediation conclusion for the limited purpose of describing events following the mediation’s conclusion.
13. Subject to the parameters set forth in S. Ct. Rule 88.06 through 88.08, the mediator shall at all times be in control of the mediation and the procedures to be followed in the mediation. With the consent of all parties and in the discretion of the mediator, counsel for each party, and a guardian ad litem, may attend the mediation conference and actively participate in the mediation process. Counsel for each party shall at any time be permitted to privately communicate with their client concerning the mediation process.
14. Where the parties cannot agree upon the method or allocation of the mediator's payment, the Court retains the authority to determine a final, equitable allocation of the costs of the mediation process. If a party fails to pay for the mediator, the Court may, upon motion, issue an order for the payment of such costs and impose appropriate sanctions. If a party is determined indigent by the Court and free or low-cost mediation services are not available, the Court may waive the mediation requirement, and the case shall proceed otherwise.
15. If either party fails to appear for any court ordered mediation session without reasonable notice, the Court may, on motion, or by request of the mediator, award attorney’s fees and/or costs or mediator fees and/or costs or impose any other appropriate sanction provided by law.
Effective 06/01/22 Adopted 05/27/22