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MEDIATION IN FAMILY LAW CASES

What is mediation?
Mediation is a process that helps the people in a family law case reach an agreement about their issues so they do not need to have a trial.  An impartial third party trained in problem solving helps guide the mediation process. Most mediators in family law cases are lawyers or mental health professionals with extra training in problem solving.  Every Oregon county is required to provide some form of mediation in family law cases.   The mediators provided by Oregon counties are called court-connected mediators.  Court-connected mediators must be trained in specific ways to help families make important decisions about children in a variety of situations.

What types of cases can be mediated?
All types of family law cases may be mediated.  Mediators can help resolve issues over child or spousal support, custody or parenting time of minor children, distribution of debts or property.  Some mediators may not be qualified to mediate some disputes, so before hiring a mediator you should ask if he or she can help resolve your particular issues.  Parents/participants do not have to be married, and the subject of the mediation can be a family situation other than separation or divorce.  For example, mediators are sometimes used to resolve disputes over grandparent visitation.  

Mediation may not be used to negotiate the terms of a Family Abuse Prevention Act restraining order.

Why mediation?
The courts encourage mediation of disputes in family law cases. Mediation enables the parents/participants to make decisions about what is best for the children and parents, rather than attorneys or judges who do not know the family. 

Mediation also can be helpful with divorces or other types of family separation issues when there are no children, but mediation services may not be available through the court for these issues.  Private mediators can offer services in these situations.

How does it work?
In some counties the parents are required to attend a mediation orientation if their case involves minor children.  The parents also may be required to attend a parenting class for separating or divorcing parents and meet with a mediator to try to resolve any disputes.

In some counties, the court requires the parties to attend mediation before the court will hold a hearing on custody or parenting time.  Some counties do not require mediation, but the court keeps a list of private mediators who will, upon request, help parents in custody and parenting time disputes.  If one of the parents/participants feels that mediation is not appropriate because of violence or intimidation from the other party, the mediation process can be changed to take into account safety issues or mediation may even be waived.

A mediator is bound by professional and legal rules to be impartial (not take one person’s side over the other and not have a stake in the outcome) and to keep the mediation discussions confidential (not tell others what was said in mediation).  There are some exceptions to confidentiality.  For example, what is said in mediation may not be kept confidential if there is an immediate danger to a participant or if the mediator is required to make a child or elder abuse report.

Who is involved?
Mediation usually involves only the parents/participants and the mediator.  The parents’/participants’ lawyers usually are not involved in sessions unless both parties agree to include them.  Sometimes parties are encouraged to give information to the mediator prior to the mediation session to help the mediator resolve the dispute. 

A mediator may first meet with the parties together, then meet with each party separately, going back and forth between the parties until an agreement is reached.   Mediators may meet at any time with both parents/participants together as they work towards an agreement.

If the parties reach an agreement in mediation, the mediator or one of the attorneys will usually write down the agreement for the parties to sign. The agreement may be presented to the court for its approval.

If the dispute is not settled in mediation, the case could go to hearing or trial or to another settlement process. Anything that was said in the mediation is confidential.  If the case goes to trial or hearing, the judge will not hear what the parties said in mediation or what their positions were during mediation.

The Cost
The cost of mediation in family law cases differs in each county and sometimes in each case. Some counties provide mediation services at no cost through their county’s department of family services, so long as a case has been filed in that county. In other counties mediation services may be provided, but the parties must pay a fee in addition to their filing fee to meet with a mediator who has a contract with the county to provide mediation services.  Some services may offer reduced fees or even waive the fees for low-income parents/participants. The cost of private mediation varies from mediator to mediator.