What is mediation?
Mediation is a negotiation between two or more people to resolve differences, which is led by a neutral third party (called a mediator). In a custody case, a judge may refer you and the other parent to mediation to try to reach an agreement on custody and/or visitation in the hope that you can avoid going to trial.
Mediation is not available in all counties. In counties with 100,000 people or more, mediation is required for custody and visitation cases (subject to the exceptions explained in the next question). In counties with under 100,000 people, the court has the option of setting up a mediation program or not.1
1 N.R.S. §§ 3.475(1), 3.500(1)
Who gets sent to mediation? If I am a domestic violence victim, do I have to do mediation?
Even in counties where mediation is mandatory for custody and visitation cases, a judge may decide not to send you to mediation if you can show:
- a history of child abuse or domestic violence;
- that you are currently participating in private mediation; or
- that one of the parties lives outside of the jurisdiction of the court1 (usually when one party lives in another state or county).
In certain counties, there are additional reasons that mediation would not be appropriate. For example, if the case involves multiple social service agencies, or the parent or child has serious psychological or psychiatric problems, the case may not be sent for mediation.2
If mediation is ordered in a case where there is domestic violence, your county may likely have a separate way to handle these cases.3 For example, each of you may be seated in different rooms and the mediator would go back and forth between the rooms and negotiate with each of you separately. Be sure to speak up for yourself if you are not comfortable being in the same room as the abuser or participating in mediation at all. If you think that mediation is not appropriate in your case, you may have to file legal papers (called a “motion”) in which you ask the judge to excuse you from the mediation requirement. Usually these papers are filed at the time you file for custody and can only be filed during the custody case if new information comes up to support your request.4
As with all custody issues, we suggest that you talk to a lawyer. To find a lawyer or legal aid program in your area, please visit the NV Finding a Lawyer page.
1 N.R.S. §§ 3.475(1) & (2)(b), 3.500(b)
2 See WDFCR 53(14)(b)
3 F.J.D.C.R. 25(14)(a); WDFCR 53(14)(a); EDCR 5.70(f)
4 F.J.D.C.R. 25(13)(A),(B); WDFCR 53(13); EDCR 5.70(g)
Who will the mediator talk to besides me and the other parent?
Usually, the mediator has the power to decide who else besides you and the other parent gets involved in the mediation. In many counties, if you have a lawyer, the lawyer has the right to talk to the mediator before the mediation but the mediator has the option to exclude (remove) the attorney from the mediation if s/he believes that it is appropriate or necessary.1 In other counties, the mediation is always done without the lawyers present but any agreement that you and the other parent come to cannot be given to the judge until your lawyer has approved it.2
The mediator usually also has the right to interview the child(ren) if s/he believes it is appropriate.1
In most counties, the mediator must keep confidential what was said during the mediation (except if s/he has to report child abuse allegations). However, the mediator will tell the judge if you do not show up, which could have an effect on your case and could cause you to be punished by the judge.3 Therefore, it is important that you appear for the mediation date just as you would appear for your court date.
1 F.J.D.C.R. 25(7)(B) & (C); WDFCR 53(7)(b) & (c)
2 4JDCR 5(5)(a)(3)
3 F.J.D.C.R. 25(9)(A) & (10); WDFCR 53(9)(a) & (10); EDCR 5.70(e) & (j)(3)
Who pays for mediation?
Generally, the parents are expected to split the costs of child custody mediation. In counties where mediation is required by law (where the population is more than 100,0001), fees are based on a sliding scale, depending on each parent’s ability to pay.2
1 N.R.S. §§ 3.500(1); 3.475(1)
2 N.R.S. §§ 3.500(2)(e); 3.475(2)(e)