Frequently Asked Questions

A. Mediation is an effort by the parties to reach a mutually acceptable solution through a communicative process structured and aided by an objective third party, the mediator.

Q. When is mediation involved?

A. You may be referred to Family Court Counseling Services by the Circuit Court or the Family Court Commissioner in these instances:

a) Whenever there is a contested court action, whether on initial determination, of an existing order affecting legal custody and/ or physical placement of a child, or

b) Whenever parents involved in an ongoing court action indicate to the court or the Family Court Commissioner's office that they wish to have joint legal custody, but need some assistance in coming to an agreeable arrangement, or

c) Whenever a parent objects to the court to the moving of their child within or outside of the State pursuant to Wis. Stat. Sec. 767.327, or

d) When parents indicate to the Family Court Commissioner that they both wish to make some changes in their legal custody or physical placement arrangement, but need some assistance in coming to an agreement, or

e) Whenever the Family Court Commissioner is notified by a parent of a child that there is a problem relative to periods of physical placement OR a person with visitation rights or physical custody notifies the commissioner of such problems.

Q. Must I be involved in mediation?

A. In the first three situations described above, one screening and evaluation session is required by law.

Q. Why mediation?

A. While the court system is very adept at making decisions, the courtroom may be a poor place for either party to fully express their concerns. Frequently matters are decided, but problems and needs remain. In the emotionally charged atmosphere around divorce and separation, it is often, if not impossible, for two sides to effectively communicate and respond to those issues where some interests are shared and often opposed. The fact that mediation is the preferable method to resolve most disputes stands on these facts: Most people are capable of problem solving, and most want to participate in making those major decisions which will affect their lives and the lives of the other members of their family. Mediation offers people a way to do this, to resolve their conflict by finding the solution most suited to their needs.

Mediation has other inherent advantages. While mediation requires a certain amount of honest effort, the emotional and financial demands of litigation can be far more costly to all concerned.

Looking to the court as the last resort promotes the misconception that this is a final activity. Unfortunately, the court's decision may be only one step along the way in what will be an ongoing escalation which could deplete financial resources and further alienate the parties.

Instead of becoming the "last step" the courtroom scene may become one of many steps along the way. Mediation, in concept, is designed to offer parties the opportunity to avoid the courtroom "steps".

Q. Are there any exceptions?

A. The court might determine that it is inappropriate to attempt mediation based upon presented evidence that there has been child or spousal abuse, that either party is impaired by alcohol or drug abuse, or that either party's health or safety would be endangered by attending the mediation session.

In those case where mediation is required by law, the Family Court Commissioner may not make a referral to Family Court Counseling Services if written proof is provided that an acceptable alternative provider of mediation has met or will meet with the parents.

Q. Who is involved in mediation?

A. Usually only the parties are involved in mediation.. The attorney's for the parties and the attorney for the child (guardian ad litem) are generally not involved.

Q. What issues are discussed in mediation?

A. The mediator is only permitted to discuss the issues of custody and physical placement of children during the mediation process. The issues of property division, maintenance, and child support will only be discussed if it directly relates to the issues of custody and legal placement and both parties agree in writing to consider one or more of those issues in mediation.

Q. What happens when a mediated agreement is reached?

A. The mediator reduces the agreement to writing, sending the agreement to the parties for review and to discuss with their attorneys. In pending divorce cases, the agreement is incorporated in the Judgment of Divorce. In post divorce judgment cases, usually one of the attorneys drafts a stipulation and order, submitting it to the court for approval and entry of a court order.

Q. What if mediation doesn't work?

A. If at any point it is found to be inappropriate to continue the mediation of those cases assigned as the result of the court action, the parties and the court are so informed by the mediator, and mediation ceases.

Q. Who decides if mediation is over?

A. The mediator has the authority to suspend or terminate mediation if he or she determines that a party will not cooperate or mediation is not appropriate.

Q. What happens then?

A. If the court is involved, either prior to or after the mediation attempt, the court will order the investigative process to begin. A different social worker from Family Court Counseling Services will be assigned to do the investigation because a mediator by law cannot disclose or reveal information which was disclosed in mediation. The only exception to this requirement occurs when both parties agree in writing to the same worker from Family Court Counseling Services doing the investigation. Otherwise, all activities occurring during mediation are confidential. One other exception is that child abuse or neglect must be reported to the proper authorities.

Q. Can mediation be re-entered?

A. All statement made to the mediator are confidential by law. The mediator will not be permitted to testify in court any time in any proceeding involving the parties. The parties may waive this confidentiality, both parties consent is necessary before the waiver can be accepted by the court.

Q. What does mediation cost?

A. If mediation is not court ordered, there is a $50.00 non-refundable "walk -in" mediation fee. That fee must be paid by cash or a check or money order made payable to Family Court Counseling Services at the time of the application. Upon receipt of the application, a mediator will be assigned to assist the parties in resolving the issues of placement or custody. The fee is not refunded if the other party does not participate in the mediation process or if no agreement is reached.

In court ordered mediation, the initial session is a screening and evaluation session to see if: 1) mediation is deemed appropriate and, 2) both parties wish to go through the mediation process. If mediation is deemed appropriate and both parties consent to mediate the dispute, or an agreement is reached at the initial session there will be a flat fee of $125.00 each. It is the responsibility of each party to pay this amount.

Once the fee has been paid, both parties may return to mediation in the future to attempt to resolve any dispute. In most cases, once these determinations are made and time permits, the mediation process will commence at the first meeting.

In those cases where mediation is provided by a resource outside of Family Court Counseling Services, the costs involved may vary and are the responsibility of the party or parties.

In those situations where mediation has been voluntarily sought and mediation fails, the parties will be informed that mediation will not continue. Then if either party wishes to pursue the matter, it becomes his or her responsibility to take the matter to court by a motion filed with the family court.

Q. What is involved in a custody and physical placement study?

A. If mediation is not successful and no agreement is reached, the court will refer the matter for a study. A social worker from Family Court Counseling Services will be appointed to conduct the study. The social worker will be someone other than the mediator. The study consists of the social worker interviewing both parents, the children and other relevant people. As a result of the study, the social worker will recommend as may be appropriate, which parent(s) should have legal custody and physical placement. The court will consider the recommendations of the social worker in making its determination on custody and physical placement.

Q. What is a guardian ad litem?

A. The guardian ad litem is an attorney appointed by the Family Court to represent the best interest of the children. During legal conflicts involving families, in pending divorces, post-divorce actions and paternity actions, the interest of children are separated from those of the parents. For example, if custody is contested, the court relies on the guardian ad litem to investigate, evaluate and put in evidence at a custody trial from the perspective of the child. Similarly, a guardian ad litem represents the child's interest if child support, visitation or paternity are in dispute. If the parent with custody and primary physical placement wish to move outside Wisconsin or establish a new residence more than 150 miles from the other parent within Wisconsin, and this move is opposed by the other parent, a guardian ad litem will again be appointed to represent the child's best interests.

Q. Must I attend the Parent Education Program?

A. In any divorce action where children are involved, the court or Family Court Commissioner will order both parents to attend a Parent Education Program, pursuant to Wisconsin Statutes. In Racine, the program is presented under sponsorship of Project F.A.C.E. The program is called Children Cope with Divorce. This program is for divorcing parents, people contemplating divorce, parents seeking a change of custody or visitation agreements, and for other adults who want to help children cope with divorce.

Q. What is the purpose of the Parenting Plan?

A. Wisconsin Law requires that a Parenting Plan be completed whenever there is a dispute regarding custody and placement of children. The purpose of the Parenting Plan is to provide reasonable specific information to the court, the other parent, and the respective attorneys, and the professionals involved in your case about what your ideas are for raising your children and how you intend to make them work. A copy of the Parenting Plan form may be downloaded from this web site or obtained from the Family Court Commissioner's Office.