Mediation in Nebraska

When mediation is mandatory

Neb. Rev. Stat. 43-2937(3) requires mediation or specialized alternative dispute resolution for parenting plan cases filed on or after July 1, 2010. This applies when the parents have not filed a parenting plan by the court's deadline. Before that filing rule applies, courts may still refer any case to mediation on their own motion or at either party's request under subsection (1).

When a court sends a case to mediation, it sets a return date and can order temporary relief, including support and payment of mediation costs. The referral goes to a mediator the parties agree on and the court approves, an approved mediation center, or a court conciliation program.

Waiving the mediation requirement

A party can ask the court to waive mediation under 43-2937(4). The court can grant a waiver for good cause in two situations. First, both parents genuinely agree to skip mediation, and the agreement is not an attempt to avoid the Parenting Act's purpose. Second, mediation is not possible without undue delay or hardship. The court holds an evidentiary hearing on any waiver request. The party seeking the waiver must prove the grounds by clear and convincing evidence, a high bar.

Domestic violence screening before mediation

Neb. Rev. Stat. 43-2939 requires a Parenting Act mediator to hold an individual initial screening session with each party before any joint mediation session. The mediator screens for child abuse or neglect, unresolved parental conflict, domestic intimate partner abuse, other intimidation or coercion, and whether a party can negotiate freely.

If screening turns up any of those conditions, the mediator cannot run a standard joint mediation. Instead the case goes to a specialized alternative dispute resolution process built around safety measures. That process is run by a mediator qualified for the specialized track, or the mediator refers the parties elsewhere. Existing protection orders and domestic violence or child abuse case records get considered during this screening. A mediator who suspects abuse or neglect has a legal duty to report it.

Mediator qualifications

Neb. Rev. Stat. 43-2938 sets the training standards for a Parenting Act mediator. To join the roster maintained by the Office of Dispute Resolution, a mediator needs basic mediation training and family mediation training approved by that office, plus apprenticeship experience. Required training covers the court system, family law and child support guidelines, community resources, child development, and domestic violence dynamics and safety protocols.

A higher bar applies to specialized mediators who handle high-conflict or abuse-involved cases. They need affiliation with a court conciliation program or approved mediation center. They also need at least 24 additional hours of specialized domestic violence mediation training approved by the State Court Administrator. A Nebraska-licensed attorney can also serve as a parenting plan mediator without this training if both parties agree to use that attorney.

Confidentiality and how agreements become orders

Neb. Rev. Stat. 25-2914 makes communications made in or connected to mediation confidential, whether directed to the mediator, mediation center staff, a party, or anyone else attending. Mediation is treated like settlement negotiations, so statements made there are not admissible as evidence and are not subject to discovery unless they were otherwise obtainable. A mediator cannot be forced to disclose what happened in a session unless every party consents to waive confidentiality.

Under 43-2939, the mediator's duty is to facilitate an agreement or parenting plan, not to decide the outcome. A mediator can interview a child if appropriate, but children generally do not attend sessions unless specific arrangements are made. Once the parties reach a parenting plan through mediation, it is submitted to the court, which reviews it before entering it as part of the custody order.