You’ve been ordered to attend mediation in a custody or placement dispute – so now what?

Why Mediation:

Wisconsin law states that in any family law action matter where custody and/or physical placement is contested, the parties must attend at least one session with a mediator. The court can’t hold a trial or final hearing on custody or placement until after mediation is completed, absent certain exceptions. Wis. Stats. 767.405(8)(a).

Most custody and placement cases require mediation unless there is an agreement between the parties or there are significant safety concerns for the child. The court wants to ensure that the parties have made a good-faith effort to resolve their legal issues before filing any motions, having a guardian ad litem become involved, or asking the court for a hearing.

Most counties have their own mediators who are employed by the county.  These may be social workers who work for the county or they may be private attorneys or other family law professionals, such as social workers or counselors, who are independent contractors paid by the county.

You and the other parent can also agree to employ a private mediator.  This will also satisfy the statutory requirement and allow you to choose your own mediator.  However, it is often more expensive and will be at your own cost.

How To Request Mediation:

Requesting mediation is simple – all you need to do is go to your court’s website and search for the mediation request form. You need to fill out the form with some basic information and state your reasons for requesting mediation.  You can request mediation at any time if there is a good reason to do so. You must then file this request with the court, and the court will order both parties to attend mediation. Or, you can request mediation during a court hearing and the court commissioner or judge can initiate that process on your behalf.

What Happens Once Mediation Is Ordered:

Once mediation is ordered, a court mediator will reach out to both parties to schedule a time to meet. They will also go over how to pay for mediation if there is a fee required.

Each county handles mediation a bit differently. In Milwaukee, Waukesha, and Ozaukee County, the first mediation session is free. (By statute, each county must offer a free session.  Milwaukee County just uses their “information session” as the free session) Sometimes, such as in Milwaukee County, this first session is an evaluation where the mediator determines if the parties are willing to mediate. If both parties are willing to put in a good faith effort to try mediation, the mediator will schedule a substantive mediation session where you will be able to try and resolve your case with a mediator. Each party then needs to pay ½ of the total mediation fee, or $100, directly to the county prior to that second session. In Washington or Waukesha County, there is no initial evaluation session and the first session is where mediated agreements are made.

It is important to pay any required mediation fees on time. If the fee is not paid, the court will cancel mediation and note the reasons why in its report to the court. You do not want to show the court that you are not taking its orders seriously by not attending mediation or paying the fee on time.  The court will also make a negative inference if you attend the mediation information session in Milwaukee and decide not to mediate. 

What Happens During Mediation:

During mediation, the mediator will walk the parties through various issues surrounding custody and placement. They will go over the ground rules for the session and will explain what everything means. They tend to start generally and work towards a more detailed agreement if the parties are close in their positions. They will talk with both parties about why they are making their requests and see if they can compromise on any issues. The mediator may get as specific as discussing other factors affecting the child such as transportation, communication, vacation time, and a holiday schedule. This county-appointed mediator will never discuss child support and is focused on issues of custody and placement. If the parties can agree on some issues but not all issues, they can enter into a partial mediated agreement. The court will then adopt the agreed-upon terms into a court order.

In Conclusion  

Mediation is the best way to arrive at an agreement with your child’s parent,  even if you think your ex-partner is not going to agree on anything. You’d be surprised at what a good mediator can do for your family. It’s not only a court requirement in most cases, but also a much cheaper alternative to litigating the process in court, and can show a lot of goodwill for co-parenting down the line.