FCRPP 39.Mediation
Last amended January 19, 2023 · Current through July 1, 2026 · Last verified September 8, 2026
Full Text of FCRPP 39
Amendment History
Kentucky publishes each rule’s amendment record as a “HISTORY” note beneath the rule, citing the Supreme Court order that adopted or amended it and that order’s effective date. It is reproduced verbatim below.
HISTORY: Amended by Order 2023-02, eff. 1-19-23. Adopted by Order 2022-58, eff. 1-1-23
Plain-English Summary
The first sentence is a prohibition, not a preference: mediation shall not be ordered in any case where one party may pose a risk of harm to other participants, and never in conflict with the statute governing mediation where domestic violence is present.
The second is nearly as strong. The court may refer a case or part of one to mediation at any time, but shall not follow any blanket policy of referring all cases, or any particular type of case — nor any blanket policy requiring mediation before a trial date will be assigned. Mediation cannot be used as a toll gate to the courtroom. Instead the court weighs seven factors in each case: the stage of the litigation and the state of discovery; the nature of the issues; the value to the parties of confidentiality, rapid resolution, or maintaining an ongoing relationship; the parties' willingness to resolve the dispute; other attempts at dispute resolution; the parties' ability to participate, including in virtual mediation; and the cost.
The parties may choose their own mediator or service. If they cannot agree within fifteen days of referral, the court may choose a private mediator, a private service or a Court of Justice employee — who must be qualified and must agree to serve. A mediator can never be ordered to mediate, and must promptly tell the court if they decline.
Absent the parties' agreement, a mediator must satisfy three requirements: a 40-hour mediation training, with either 20 hours of that or 20 hours of additional training focused on family law mediation including the dynamics of domestic and interpersonal violence; at least 15 hours of hands-on experience mediating similar matters; and qualification by education, training and experience. Mediators keep information confidential subject to the civil rules' reporting obligations; attorneys may attend; a party without a lawyer must be advised of the benefits of representation and of the right to have any agreement reviewed independently. The mediator acts only as a mediator — no therapy, no legal advice, and no directing the outcome on the mediator's own view of the law. Any agreement reached is reduced to writing and signed by the parties and their counsel.
Frequently Asked Questions
Can a Kentucky court order mediation where there is domestic violence?
No. Mediation shall not be ordered in any case where one party may pose a risk of harm to other participants, and in no event in conflict with KRS 403.036.
Can a court require mediation before setting a trial date?
No. Courts shall not follow any blanket policy or practice of referring all cases, or any particular type of case, to mediation, nor any blanket policy requiring completion of mediation as a pre-condition to assigning a trial date.
What qualifications must a mediator have?
Absent the parties' agreement: a 40-hour mediation training, with either 20 hours of that training or 20 hours of additional training focused on family law mediation including the dynamics of domestic and interpersonal violence; at least 15 hours of hands-on experience mediating similar matters; and qualification by education, training and experience.
What happens if we cannot agree on a mediator?
If the parties cannot agree within fifteen days of being referred to mediation, the court may choose a private mediator, a private mediation service, or a Kentucky Court of Justice employee — who must be qualified and must agree to conduct the mediation.
Can the mediator give us legal advice?
No. The mediator acts solely as a mediator and shall not provide therapy, legal advice or other professional advice. The mediator may identify the legal issues but shall not direct the participants' decision based on their own interpretation of the law.