By Molly Murphy
Attorney, Cordell & Cordell
The role of mediation in resolving divorces is becoming much more common. One of the reasons it is so popular is because if successful, it can be much less costly than a contentious court battle.
Mediation is mandatory in some states. In some of these states mediation can be offered at a low- or no-cost alternative for contested parties.
What is mediation? Mediation is a process where a mediator, an impartial third party, assists you in making mutually agreeable decisions about your child(ren). An important part of the mediator’s role is to help you keep your communication respectful with each other and to help you stay focused on finding workable solutions that are in the best interests of your child(ren).
Does the mediator provide legal advice or counseling? No. Even if the mediator is an attorney or a licensed mental health professional, the mediator is not acting as an attorney or as a counselor. The mediator will not give legal advice or provide counseling to either parent. The mediator does not represent either parent. Both parents are advised to obtain independent legal counsel. The mediator may be able to offer some insight though as to what a Judge is likely to do in some instances.
Communications during the process of setting up the mediation are also confidential. Neither the mediator nor someone who acts on the mediator’s behalf to set up a mediation can be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting a mediation session.
Almost any issue relating to your child(ren) can be discussed at mediation. This includes any issues relating to parenting time, custody, health insurance, child support, discipline, child(ren)’s safety, education, transportation, conflict management, family communication, establishing paternity, and other issues.
Mediation ends upon agreement by the parties and the mediator. The mediator may end the mediation at any time if the mediator believes that continuing would be unproductive or harmful to one or both of the parents or the child(ren). If a parent has been ordered to mediate by a court, that parent is obligated to attend a mediation session for a minimum of two hours.
So what happens if you do reach an agreement? Any understanding reached by you as a result of mediation will not be binding upon you until it is reduced to writing, signed by both parents, reviewed by your attorneys, if any, and approved by the court. The mediator will prepare what you have agreed upon and will provide copies to you and your attorneys. The mediator could also supply a memorandum of understanding to the Court.
What happens if we do not reach an agreement? If mediation is court ordered, the court will be told only that no agreement was reached or if a parent fails to attend a court ordered mediation. If the mediation was not court ordered, the court will not be told anything.
Missouri law, where I practice, provides that the mediation process is confidential and nothing said in setting up or conducting the mediation may be repeated in court. Mediators and mediation services have an ethical duty to assure that mediation occurs in a safe environment and that the process goes forward only if both parties have the ability to mediate safely, autonomously, and free from any intimidation. The parties must be capable of reaching outcomes satisfactory to both of them, voluntarily and with informed consent.
Communications during mediation are confidential. The mediator may not share information with anyone outside of mediation without the permission of both parents, with the exception of regarding threat of harm or abuse or neglect of a child.
Exceptions to mediator confidentiality exist if the mediator reasonably believes that a threat of violence will result in death or serious bodily harm or if there has been unreported abuse or neglect of a child. In such situations the mediator is required to make a report to the appropriate authorities.
Mediators usually include this in their Agreement to Mediate, and should specifically review these exceptions at the beginning of the mediation to be sure the parents have noted them. Mediators realize that mediation is not appropriate in all situations. Suspected or alleged child abuse is not an issue that should be addressed in mediation. If a parent has a reasonable belief that there has been unreported abuse or neglect of a child, a report should be made to the state’s Social Services.
Margaret “Molly” P. Murphy is an Associate Attorney in the Arnold, Missouri office of Cordell & Cordell where she practices exclusively in the area of domestic relations. Ms. Murphy is admitted to practice law in the state of Missouri. Ms. Murphy was born and raised in St. Louis. She received her B.A. in Political Science and English Language and Literature in 1998 from the University of Tulsa where she graduated magna cum laude. Ms. Murphy received her Juris Doctor from the University of Missouri-Columbia in 2001.