Mediation of legal custody or physical placement issues may be ordered by a judge or a commissioner based on a motion, petition, letter, or an oral request at a hearing. Mediation is a confidential, cooperative process conducted between the parties in disagreement with the assistance of an FCS counselor. Attorneys do not participate in the mediation session. Financial issues are not discussed during mediation at FCS. A waiver of mediation pursuant to statutory criteria may be requested from the referring judge or commissioner. The judge or commissioner may waive mediation upon finding that attending mediation will cause undue hardship or endanger a party’s health or safety.
There is no cost for the initial mediation session, but the parties will be required to pay a fee (set by Dane County ordinance) for repeat or extended mediation sessions. Parties may also arrange for private mediation from a third party provider, as permitted by statute. Mediation must be completed within 45 days (60 days in families with domestic violence that has been identified by the court) from the date assigned to a counselor.
Commissioners will evaluate post-judgment verified petitions or motions with supporting affidavits and make the determination as to whether a substantial change in circumstances is set forth in the submission. If they determine it does not, they will dismiss the petition or motion. Parties may file for a de novo hearing with the assigned judge. If the verified petition or motion is not dismissed, the matter will be referred for mediation with FCS or set for a status conference in an attempt to resolve the issue(s) or define the contested issue(s). At a status conference, a determination may be made as to whether a Guardian ad Litem (GAL) is required or whether mediation is appropriate. The matter may be scheduled for a contested hearing or for some other appropriate action. Mediation referrals are docketed by the commissioner center staff.
Judges who are directly contacted by the parties and choose not to route the motion through the commissioner center may evaluate post-judgment verified petitions or motions with supporting affidavits and make the determination as to whether a substantial change in circumstances is set forth in the submission. When they determine it does not, they will dismiss the petition or motion. If the verified petition or motion is not dismissed, the matter will be referred for mediation with FCS or set for a status conference. The referral to FCS is docketed by the branch staff.
When mediation is assigned to a counselor, FCS staff will email notice to the branch clerk. The clerk may schedule a file review. A mediation-to-study referral will not be made automatically. A study will only be ordered if mediation has failed or has been waived.
If the parties reach an agreement or a partial agreement in mediation, the counselor shall circulate the agreement to the parties, their attorneys, and the GAL, if any, for review. Any reviewing attorney shall certify on the mediation agreement that he or she reviewed it. The GAL, if any, shall comment on the agreement based on the best interest of the child. If no objections or modifications are received within 30 days, the counselor shall certify the written agreement accurately reflects the agreement of the parties and will forward the agreement to the assigned judge. The court may enter an order incorporating the terms of the agreement as a final order of the matters set forth in the mediation agreement. In pending, pre-judgment divorce cases and initial paternity cases, the judge shall schedule a hearing regarding the agreement prior to adopting it as a final order.
If a partial agreement is reached, a memo will be sent to the referring commissioner indicating a partial agreement was forwarded to the Court but some issues still need resolution.
If mediation is unsuccessful, the counselor will notify the referring court official and all parties, indicating no further action will be taken unless directed by the court. FCS will also advise if a failed mediation was the result of one or both parties’ lack of participation. The judge or commissioner will schedule a status conference to attempt to resolve the matter or narrow the disputed issues and enter other appropriate orders. If the failed mediation is returned to the commissioner and is not resolved at the status conference, a memorandum articulating resolved issues and those still outstanding will be sent to the judge.
