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Wisconsin Divorce Mediation

In recent years there has been a growing interest in divorce mediation, which is a process for helping divorcing parties reach a settlement agreement in a cooperative manner rather than having them battle it out in court for the judge to decide the issues. Mediation lets the parties keep control of the process and of the terms of the divorce. Mediation, if successful, is likely to be much less expensive and much less stressful on the parties than fighting it out in court. It even tends to be less stressful and expensive than adversarial negotiations with each party having a separate lawyer with months of discovery, communications, and a series of proposals and counter proposals.

In Wisconsin, as in many states, there is both court-ordered mediation of custody and placement issues, and private mediation which tends to be comprehensive in nature and often occurs prior to commencing the divorce action (and hence is often called "pre-suit" mediation).

Court-ordered Mediation

Wisconsin law requires that parties who cannot reach an agreement on custody and placement issues first try mediation before proceeding with a full-blown custody dispute. Although mediation may be bypassed if the court finds that requiring mediation will cause undue hardship or would endanger the health or safety of one of the parties, in most cases mediation is mandatory before the court will allow the parties to go ahead with a custody battle.

This court-ordered mediation is usually done with a county mediator associated with the court system either by employment or by contract. The mediation is limited to issues related to custody and placement. No issue relating to property division, maintenance or child support may be considered unless the issue is directly related to custody and placement and the parties agree in writing to consider the related issue. Unrelated financial issues are absolutely prohibited, and related financial issues may be discussed only if both parties agree in writing to discuss the issues.

The custody/placement mediator shall be guided by the best interest of the child and may, in addition to regular mediation with the parties, do any of the following:

  • Include the counsel of any party or any appointed guardian ad litem in the mediation.
  • Interview any child of the parties, with or without a party present.
  • Require a party to provide written disclosure of any relevant facts.
  • Suspend mediation to allow a party to obtain an appropriate court order or appropriate therapy.
  • Terminate mediation if a party does not cooperate or if there are circumstances which make mediation inappropriate.

If mediation of the custody/placement issues is successful, a written agreement is prepared for review by the parties and their attorneys, and if approved is submitted to the court to be included in the court order or stipulation. If the parties are unable to reach an agreement in mediation, the court shall be so notified and a guardian ad litem shall be promptly appointed if this has not already been done.

If the parties wish to use a private mediator instead of the county mediator, they may do so. Although private mediation will generally cost more than county mediation, a private mediator may help the parties reach a comprehensive settlement on all issues, and this comprehensive scope sometimes helps the parties actually reach an agreement.

Private Mediation

Parties who are familiar with the concept of mediation may choose to begin mediation prior to starting a divorce. This creates the possibility of reaching a comprehensive agreement before the pressures of an inherently adversarial process damage the parties' already troubled relationship. Even if parties are already involved in a divorce proceeding, they may turn to a private mediator to help them reach a settlement agreement through a collaborative process of private mediation.

Most mediators report that comprehensive mediation, if successful, usually is completed in three to six mediation sessions. The cost of three to six mediation sessions is almost certain to be substantially less than the cost to each party of legal fees in a litigated divorce.

Mediators are neutral facilitators of communication and negotiation. They help the parties understand each other's interests and concerns, and promote the efforts of the parties to fashion their own settlement agreement in a respectful, collaborative spirit. Mediators who are also attorneys may inform the parties of the legal parameters of the issues they are facing: what would likely be acceptable to the court and what would not. Mediators can also help the parties move beyond negative tactics such as manipulation and intimidation, and to be properly respectful and responsible to each other as they work out their agreement.

When mediation is successfully completed, a comprehensive marital settlement agreement is prepared which is then presented to the court at the final hearing for its approval and the inclusion of the agreement in the divorce judgment.

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