Rule 88.06.Mediation--Duties of the Mediator.

Rule 88.06 spells out what a mediator must do once mediation is underway, and much of it must happen in writing. The mediator must inform the parties of mediation’s costs, make clear that the mediator does not represent either party, and describe how the mediation process will work. The mediator must also disclose any relationship or interest — personal, financial, or otherwise — that could create bias or a conflict of interest, and advise each party to get independent legal advice.

The rule also addresses disclosure of information uncovered during mediation. Factual documentation revealed in the process can be disclosed to the parties’ attorneys only if, at the end of mediation, both parties agree to that disclosure. And throughout, the mediator must make sure the parties fully consider their children’s best interests and understand the consequences of any decisions affecting the children.

Beyond these written duties, the mediator may meet with the parties’ children, and with the parties’ consent, may meet with other people relevant to the case. If the parties reach an understanding, the mediator must summarize it in writing and provide that summary to the parties and their attorneys. That understanding does not bind the parties until it is put in writing, signed by the parties and any attorneys, and approved by the court. If a party has no attorney, the mediator must send the written summary directly to the court.

The rule also limits the mediator’s subsequent roles. A mediator may mediate later disputes between the same parties, but must decline to act as their attorney, counselor, or psychotherapist during or after the mediation or divorce proceedings, unless any later representation, counseling, or treatment is clearly separate from the mediation issues. And a mediator can never later serve as an investigator on a court-ordered report or make recommendations to the court about the children.