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Mediation in Domestic Cases



What is mediation?

Mediation is statutorily defined as "the intervention into a dispute by a third party who has no decision making authority and is impartial to the issues being discussed."(K.S.A. 5-503(f)). In other words, mediation is a way for people in disagreement to discuss the problem with the help of a third party who will not take sides.

Those new to mediation may ask how the mediator is useful if he or she does not make the decision. To those who use traditional court methods, it may be hard to see how a mediator might be helpful. In court, the goal is to convince the judge that your position is right. In court, one person generally wins and the other loses. In mediation, the goal is not to determine who is right and who is wrong, but rather to explore solutions in which both can gain. The parties, not the mediator, make the final decision. If they cannot come to an agreement, they may go back to court.

 

What can be mediated?

Almost anything can be mediated: custody, visitation, personal injury, small claims, limited actions, probate, contracts, or any civil claim that might be helped by defining issues and reducing hostility. Even some criminal cases may use mediation for certain aspects if the victim is willing.

 

Benefits of mediation

  • The parties decide the outcome.

  • Can be quicker and cost less than court.

  • Can preserve and improve relationships.

  • Can be more creative than court.

  • Can include other parties.

  • Helps define the issues.

 

Who makes the decision?

The greatest benefit of mediation is the parties make the decision. This way, the parties are not left with a decision imposed on them by someone unfamiliar with the situation. The mediator is there to guide the parties in reaching their decision by encouraging good communication, defining issues, and helping with possible solutions.

 

Who pays for mediation?

If your court has mediation by court services officers, the mediation is free. If you must go to mediation outside the court, the parties usually divide the cost.

 

The process

Although methods may vary from mediator to mediator, most mediations can be divided into three parts:

  • Defining the issues;

  • Exploring the possible solutions; and

  • Determining which solution is the best for both parties.

If the parties cannot agree, they may ask the court to make the decision.

 

Confidentiality

The mediation process allows the parties to speak openly about the issues in a confidential manner. Kansas law provides (with some limitations) that mediations are confidential and privileged. Neither party can subpoena the mediator and nothing specific to the mediation can be admissible in any later administrative or judicial proceeding.

Exceptions are made for threatening and fraudulent behavior, suspected abuse, and commission of a crime.

 

Where do I find a mediator?

Judges usually have a list, or you may use our list of approved mediators.

 

What if I've been abused and mediation scares me?

If you have been abused, have a restraining order or a protection from abuse order issued, or if there has been a conviction against the other person, you should let the mediator or your attorney know. If you do not have an attorney and want help, you may call your local domestic violence shelter for information. Sometimes a judge will not make you go to mediation if there is enough evidence to show it could be dangerous.

Tips for making mediation work even if there is a history of abuse, power, or control:

  • Tell the mediator you would like to be in a separate room or have a separate session when the other party is not there.

  • Be prepared: Know what your rights are and what you want.

  • Come with ideas which will make a plan work (for example: if you feel your children should not go with the other parent alone, come with ideas of friends who could help with visitation, or ideas of places where visitation would be safe).

  • Ask to take breaks if you are feeling frightened or stressed.

  • Ask to leave the mediation first, so you can leave safely.

  • Ask if you may bring someone with you (attorney, counselor, friend).



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