Mediation in Wisconsin

The mandatory initial session

Wis. Stat. 767.405(8)(a) requires parties in any contested legal custody or physical placement case to attend at least one mediation session. This includes revision actions under Sections 767.451 or 767.59. No court can hold a trial or final hearing on legal custody or physical placement until mediation is completed or terminated. Under subsection (8)(c), that initial session is a screening and evaluation session. It determines whether mediation is appropriate and whether both parties want to continue. The mediator discusses each party's proposed parenting plan at that session. Each party must submit that plan, containing the information required under Section 767.41(1m), at least 10 days before the initial session.

When a court can excuse attendance

Wis. Stat. 767.405(8)(b) lets a court skip the mandatory session if attending would cause undue hardship or endanger a party's health or safety. The court weighs several kinds of evidence in making that safety determination. This includes whether a party engaged in abuse of the child, as defined in Section 813.122(1)(a)-(b). It also includes evidence of interspousal battery or domestic abuse, as defined in Section 813.12(1)(am). The court also considers whether either party has a significant alcohol or drug abuse problem, or any other evidence that attending would endanger a party's health or safety.

How mediation is provided and paid for

Under Wis. Stat. 767.405(3), mediation must be provided in every Wisconsin county. Counties can offer it through a county-run family court services office, a cooperative agreement between two or more contiguous counties to share one office, or a contract with a person or entity in the county or a contiguous county. Under subsection (7), parties can instead use a private mediator at their own expense. They must sign and file written notice with the director of family court services and the court, stating the mediator's name and the date of their first meeting.

What the mediator can do, and when mediation ends

Under Wis. Stat. 767.405(10), a mediator is guided by the child's best interest. The mediator may include a party's attorney or guardian ad litem in the process. The mediator can also interview a child with or without a parent present, require written disclosure of relevant facts, or suspend mediation so a party can get a court order or therapy. Under subsection (9), financial issues like property division, maintenance, or child support generally cannot be addressed in mediation. The exception: both parties agree in writing to include them, and they are directly related to the custody or placement dispute.

Subsection (10)(e) requires the mediator to terminate mediation if a party does not cooperate. The mediator must also terminate it if evidence shows child abuse, interspousal battery or domestic abuse, a significant alcohol or drug problem, or any other health or safety risk that continuing would create.

How a mediated agreement becomes a court order

Under Wis. Stat. 767.405(12)(a), any agreement resolving custody or placement issues must meet several requirements. It must be written, reviewed by each party's attorney and any guardian ad litem, and certified by the mediator as accurately reflecting the parties' agreement. It is then submitted to the court as a stipulation. The court can approve or reject it based on the child's best interest. It must state in writing its reasons for any rejection. If the parties do not reach agreement, subsection (12)(b) requires the court to promptly appoint a guardian ad litem. If appropriate, the court also refers the matter for a legal custody or physical placement study under subsection (14). That study investigates the child's home conditions, each party's parenting performance, any interspousal battery or domestic abuse, and other relevant factors.