Mediation in Minnesota

When a case gets set for mediation

Under Minn. Stat. 518.619, subdivision 1, the matter may be set for mediation in specific circumstances. That happens if it appears from the petition, or another application for a custody order or modification, that custody or parenting time is contested. It also applies when any issue relevant to a custody or parenting time determination is unresolved. This can happen before, at the same time as, or after the case is set for a hearing. The statute frames the mediator's role clearly. The mediator must use best efforts to reach a settlement, but has no coercive authority to force an outcome.

The physical or sexual abuse exception

Subdivision 2 sets a firm limit. The court may determine there is probable cause that one of the parties, or a child of a party, has been physically or sexually abused. The abuse must be by the other party. If so, the court shall not require or refer the parties to mediation. This also bars any other process that requires the parties to meet and confer without counsel, if any, present. This is a mandatory bar once the probable-cause finding is made, not something left to the court's discretion.

Mediator appointment and qualifications

Under subdivision 3, a mediator in a Minnesota custody case must be appointed by the family court. The mediator must be a member of the professional staff of a family court, a probation department, a mental health services agency, or a private mediation service. The mediator must generally come from a list the court has approved, unless the parties agree in writing to someone else.

Subdivision 4 sets minimum qualifications for anyone mediating a contested child custody matter. This includes knowledge of the court system and procedures used in contested custody cases, and knowledge of community resources parties can be referred to. It also requires knowledge of child development, clinical issues affecting children, and the effects of marriage dissolution on children, plus at least 40 hours of certified mediation training.

Confidentiality

Subdivision 5 requires mediation proceedings to be conducted in private. It makes all records of a mediation proceeding private and unavailable as evidence in a marriage dissolution action or related proceedings. This applies to any issue in controversy in the dissolution. This gives Minnesota a clear statutory basis for keeping what happens in custody mediation out of the court record if the case proceeds to a contested hearing.

After mediation ends without agreement

Under subdivision 6, if the parties don't reach agreement through mediation, the mediator can recommend to the court that an investigation be conducted. The mediator can also recommend other action to help the parties resolve the dispute before a hearing. The mediator generally cannot conduct that investigation or evaluation. Two exceptions apply: the parties agree in writing after mediation ends that the mediator may do so, or no one else is reasonably available.

If the parties do reach a mediated agreement, it is typically reviewed with each party's attorney, if they have one. This gives counsel a chance to weigh in on its terms. It is then submitted to the court to become part of the final decree. At that point, it becomes a binding part of the custody order in a Minnesota custody case.