Rule 602.Mediation of Child Custody and Visitation Disputes

Rule 602 is the custody mediation rule.

What mediation is

A process in which a neutral mediator, appointed by the court or agreed by the parties, assists the parties toward a mutually acceptable agreement. Any agreement rests on the parties' decisions, not the mediator's. The mediator's role is to identify issues, reduce misunderstandings, clarify priorities, explore compromise, and find points of agreement.

What comes here

All family law actions involving a controversy over custody or parenting time of a minor child are subject to mediation by a mediator qualified under I.C.A.R. 76. Every other issue goes to Rule 603. So a case with both custody and property disputes may run two mediation tracks with different qualification standards.

Getting there

Referral does not divest the court of management and control of the case. It may come on a party's motion, at a Rule 701 conference, on consideration of a request for trial setting where all parties say mediation would help, or on the court's own determination upon 7 days' notice.

The parties then have 28 days from the mediation order to select any person and report the choice. If they do not, the court must appoint from the Supreme Court's roster. The first session must be scheduled within 14 days of selection or appointment.

Cost

Fees and expenses must be clearly set forth and explained at the initial conference. Each party is responsible for one-half unless otherwise agreed or ordered — and an unpaid mediator may move the court for payment.

The mediator's duties

Impartiality, with a duty to advise the parties of any circumstance bearing on bias, prejudice or impartiality. And a substantial disclosure at the initial conference: how mediation differs from therapy and counseling; when the mediator will meet alone with a party; the confidentiality and any privilege; the duties of mediator and parties; that any agreement requires mutual consent; advice to seek independent legal counsel before resolving issues; that an agreement must be reduced to a final agreement and submitted to the court for review and approval; and what is needed to define the issues. Any agreement reached must be documented in writing with a copy to the parties or their attorneys.

What the court hears

The mediator and the court may not communicate without notice to all parties. The mediator must report — without comment or observation — only that the parties are at impasse, have reached a full or partial agreement, that one or both failed to attend, that meaningful mediation is ongoing, or that the mediator is withdrawing. Nothing about who was reasonable.

Contacts between attorneys and the mediator must be in writing or by conference call, and attorneys and others are excluded from mediation conferences unless the mediator requests or the court orders their presence. The confidentiality protections of Idaho Rules of Evidence 408 and 507 extend to mediation.

Status reports run every 28 days until mediation is complete, and a final report is due within 7 days of the last session. Either the court or the mediator may terminate mediation if further progress toward a reasonable agreement is unlikely.