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Mediation Fact Sheet

What is Mediation?

Mediation is an out-of-court way for people to resolve disputes.  A mediator is a neutral and impartial third party trained to help people reach agreements about contested issues.  A mediator is not a judge.  Both parties meet with the mediator to talk about what they want and what they think is best.  If the parties reach agreement in mediation on any or all contested issues, then that agreement can be written out and signed by each party.  Then the signed agreement can be presented to the judge for approval of the agreement as a court order.  The agreement doesn’t become a court order unless the judge signs it too.

What does a mediator do? 

  • Mediators keep the mediation sessions private and confidential
  • Mediators help you and the other party communicate
  • Mediators listen to you and the other party and help you solve disagreements
  • Mediators help you explore all the possible options and solutions for your issues.

What doesn't a mediator do?

  • Mediators cannot testify in court about what happened in mediation
  • Mediators do not make decisions for you
  • Mediators do not offer legal advice
  • Mediators do not assign blame for what has already happened
  • Mediators focus on what needs to happen next to solve the problem.

Is mediation right for you?

Mediation may be right for you if:

  • You and the other party will both participate in mediation
  • You and the other party want to make decisions about your problem instead of asking the judge to make those decisions
  • You and the other party are capable of communicating with each other.

Is mediation appropriate when there is domestic violence?

No. Mediation is not appropriate when there may be domestic violence. Domestic violence can be threats of abuse or actual emotional, psychological, verbal, and/or physical harm. Mediation is not appropriate when there may be domestic violence because the parties have unequal bargaining power. When two parties do not have equal footing, mediation may not be fair. 

What if there is domestic violence and the court orders mediation?

You can ask the court to waive mediation. The court will not ask you to provide medical records or arrest records to prove there is domestic violence. The court only needs a "reason to suspect abuse." If you are a domestic violence survivor and you want to ask the court to waive mediation, you must file a written motion with the court. To get a Motion to Waive Mediation, contact Montana Legal Services Association.  Keep in mind that if you want to try mediation, you can.  Even if there is domestic violence in your relationship, if you think it might be productive to go through mediation, you can try it.  If you decide to try mediation, then you don't need to file a Motion to Waive Mediation.

What should you expect in mediation? 

  • You should expect to be treated with respect by the mediator and by the other party during mediation 
  • You should also treat the mediator and the other party with respect during mediation
  • If you want to tell the mediator something during mediation without the other party hearing, you can ask to meet with the mediator privately
  • If you have made a genuine effort in mediation and you feel that you are not being treated respectfully or that the mediation is not being productive, you can leave mediation
  • You should not feel forced to sign something at mediation
  • Do not sign anything at mediation undless you truly agree to it
  • Any issues that you still don't agree on after mediation can be decided by the judge later at a hearing.

Are you required to reach an agreement during mediation

No.You are not required to reach an agreement during mediation. If you can't reach an agreement, then the mediator will let the judge know that mediation was not successful. You or the other party can ask for a hearing before the judge after mediation so that the judge can decide the contested issues after the hearing. 

You must give mediation a fair chance. You should also listen respectfully to the other party's positions. You are not required to agree to something you don't think is right. 

Sometimes you and the other party may reach an agreement on some issues in mediation, but not all of them. It is a good idea to write out whatever agreements are made during the mediation, and you and the other party should sign them before leaving the mediation.  Then either party can ask the judge for a hearing on the issues that were not settled by your agreement. But remember, never sign anything that you don't agree with. You can ask the mediator questions if you don't understand something.

Are you giving up any rights agreeing to mediation?

No. You are not giving up any rights by agreeing to mediation.  By agreeing to participate in mediation, you are agreeing to try and reach an agreement with the other party about the contested issues.  If you end up reaching an agreement on some issues at the mediation and the judge adopts those agreements as the court’s decision, then you are giving up your right to hearing on those agreed issues.  But the issues that remain contested will be left for the judge to decide.

If you cannot reach an agreement on some issues at the mediation, then you still have the right to have the judge make a decision on those contested issues. 

Where can I get more help? 

Montana Legal Services Association (MLSA) provides free civil legal help to low-income people.  Contact us to see if you qualify:

  • Apply anytime online at mtlsa.org;
  • Call our Helpline at 1-800-666-6899 (Helpline hours are limited).

What help can I find at MLSA?

  • Legal advice and representation;
  • Referrals to volunteer attorneys and other providers;
  • Self-help clinics and materials.
Last Review and Update: May 19, 2017
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