One of the most important steps in the divorce or child custody dispute process is mediation. Now not all cases will involve mediation, but in many jurisdictions in the State of Missouri, mediation is required in contested divorces and child custody disputes. In other situations, the parties will voluntarily participate in mediation in an effort to end the dispute early on before painful and expensive protracted litigation. A family law mediator is almost always an experienced family law practitioner in the area who is familiar with the local courts and judges. Mediation is an indispensable tool used to bring the parties together in a non-court environment with the goal to work out differences and come to an agreement rather than proceed toward trial. Mediation can save time, money and prevent the damage to the family that a contentious divorce or family law case can cause.
Missouri Supreme Court Rule 17.01 states that “Mediation can provide a neutral and protected environment to help the parties explore and understand their interests, needs, risks, and options, thereby working out an agreement that suits both participants in the conflict.” One of the reasons why mediation is so effective is that the parties tend to feel more comfortable and open in the mediation setting which is designed with this in mind. Negotiation in a private office with your ex is considerably less stressful that being cross-examined on the witness stand in court by the opposing attorney.
Voluntary Mediation vs. Court-Ordered Mediation
There are two types of divorce and family law mediation in Missouri: Voluntary and Court-Ordered. Voluntary mediation is the process of both parties agreeing to attend mediation with a specific mediator, with the goal of resolving the dispute without substantial court involvement. As the name suggests, voluntary mediation does not involve the court and can be changed or cancelled unilaterally by any party. Typically, voluntary mediation takes place soon after the initiation of the divorce or family law dispute. To this end, voluntary mediation is only effective when both spouses are able to work together in a non-adversarial manner.
The majority of mediation sessions in Missouri are initiated because mediation is required by the court in which the case is pending. Many state courts in Missouri have local rules which mandate mediation in specific case types. The rationale behind these rules is it will save the court’s time by having many cases settled before there is significant time spent in court, thus preventing the court system from getting backlogged with too many pending cases which could have been resolved earlier. And mediation does just that. According to recent studies, approximately 80% of couples who choose mediation are able to come to a settlement and end the dispute at the mediation session or soon after. This means the courts only have to further adjudicate 20% of the cases initially filed, which is essential to the timely function of the family law court system.
Mediation can be initiated by a judge, or by motion from any party. In most cases in this jurisdiction, the parties will agree on a specific mediator who will conduct the mediation, and then motion the court to enter an order to mediate. If the parties cannot agree on a specific mediator, the court will make the choice and appoint one. Once the court enters an order to mediate, the parties usually have 30 days to complete the mediation.
In the Circuit Court of Cass County, Missouri, the Local Court Rules require mediation in each and every dissolution of marriage (divorce), legal separation, paternity, motions to modify a custody judgment and guardianships “involving a custody determination of a minor, in which there arecontested issues of custody and/or visitation.” The rule requires the parties to participate in two hours of mediation before the court will schedule a trial date in the matter. Many other jurisdictions in the area have similar rules. According to the Jackson County Local Court Rule 68.12, if there are any contested issues, parents are mandated to complete two hours of mediation. For information and local courts, please visit our local courts page.
Missouri Rules of Civil Procedure Rule 88.06 lists seven tasks a family law mediator must complete in writing:
1. The mediator must inform the parties of the cost they will be charged. In the Kansas City metropolitan area and surrounding, mediation can cost between $500 and $800 for two hours. The court will order that the cost of mediation be shared by the parties unless extenuating circumstances suggest otherwise.
2. The mediator must be certain to convey to each party that the mediator does not represent either party, and no attorney-client relationships exists between the mediator and parties.
3. The mediator must “define and “describe” how the mediation will work to both parties.
4. If there are any pre-existing (personal or financial) relationships between the parties and the mediator which could cause bias or result in a conflict of interest, then these relationships must be fully disclosed.
5. The mediator must encourage each party to consult with their own attorney to obtain independent legal advice with an attorney who is ethically obligated to protect the party’s own interests solely.
6. The mediator must disclose to each party’s attorneys (if they are represented) any factual documentation which was revealed during the mediation, if this disclosure is agreed to by both parties at the end of the mediation session.
7. The final task of the mediator which must be completed in writing, is to advise the parties to focus on what is in the best interest of the children involved. This includes making sure the parents are aware of the consequences involving the children from any agreement that is reached.
What are the primary benefits of Mediation?
When a divorce proceeds to trial the parties essentially give up all control over the outcome of the case, because the judge decides every detail. Family law mediation keeps the control of the outcome with you and your spouse. In addition to keeping control of the divorce outcome with the parties, mediation has several other positive attributes:
Mediation is collaboration to address the potentially contentious issues involving asset and liability distribution, as well as child support, legal and physical child custody and visitation.
Mediation is conducted in a relaxed and safe environment (as compared to a courtroom) where both spouses can feel comfortable discussing and tackling emotionally challenging topics.
3. Mediation is extremely cost-effective and often saves both time and money by avoiding an expensive trial.
4. Mediation can resolve family disputes in a much shorter time period than a court trial, allowing families to move on with their lives and heal emotionally.
What is mediation really like?
Traditionally almost all mediation took place in the private office of the mediator. While in-person mediation is still the most common method of mediation, after Covid-19 some mediators have chosen to continue with virtual mediation sessions solely. In my experience there tends to be a little higher success with in-person mediation over virtual mediation.
Most mediators will start the session with both parties present, and possibly their attorneys. Attorneys are not required to attend mediation with the parties and so it is up to both of the parties to decide if attorneys will be present or not. Of course, when two attorneys are present and billing for at least two hours, the legal costs go up substantially. Alternatively there are many situations where it is advantageous for attorneys to be present. Whether or not attorneys should attend mediation should be decided on a case-by-case basis.
As the mediation progresses, the parties will then be separated and work with the mediator individually while the other party waits. There is often then a back-n-forth negotiating period which hopefully comes close to or resolves the dispute. If an agreement is reached the parties will then return to the same room to finalize the agreement. If an agreement is reached, the mediator will then draft a summary of understanding which details the agreement, and provide a copy of said document to each party and their attorneys.
One of the most crucial things to understand about mediation is that IT IS NOT BINDING. What does that mean? It means that the agreement made at mediation is just a handshake deal and either party can back out of it at any time because it is not legally enforceable. No agreement is final until both parties sign the agreement, submit it to the court, and then the judge signs an order.
What makes a good mediator?
One of the most important qualities in an effective family law mediator is the ability to make both parties feel comfortable. Clearly emotions run high in these types of situations and it’s often very uncomfortable for the divorcing spouses to even be in the same room together. It’s important for the mediator to effectively communicate with both parties in a manner that encourages each spouse to actively participate in the mediation process. While the court does often require the parties to participate in mediation, the process often resolves the conflicts to establish an agreement, or at a minimum it brings the parties closer together on the issues and may resolve some of the disagreements.
Mediation is a very effective tool in resolving divorces and child custody disputes prior to the initiation of serious litigation. Many local court jurisdictions have local rules which mandate mediation be completed in specific case-types, usually those involving unresolved disputes regarding children of the relationship. Mediation has shown an 80% effective rate in resolving disputes of this type prior to a trial in court, saving time, money and preventing further damage to the family caused by further litigation and a trial.
The Men’s Center for Domestic Resolution is a family law firm and divorce law firm located in Cass County, Missouri dedicated to helping men through the sometimes-arduous journey of a divorce or child custody dispute. We represent men in Cass County, Jackson County and the surrounding areas including Lee’s Summit, Blue Springs and Raymore, Missouri. If you would like to schedule a consultation with our office, please call us at 816-287-1530 or visit our website to contact us online.
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