Mediation

Mediation

If you have a family law matter, you will hear about a number of different legal processes involved in resolving your issue. One process that may arise in any Nevada family law case is mediation.

Alternative Dispute Resolution

Mediation is a form of alternative dispute resolution. Alternative dispute resolution is a procedure for settling disputes without litigation. Settling disputes without litigation may save time and money. Alternative dispute resolution includes arbitration, neutral evaluation, and mediation.

Arbitration

In Arbitration, disputing parties agree that a neutral third party (the arbitrator) will make a decision about the dispute. The arbitrator makes their decision after receiving evidence and hearing arguments.

There are two types of arbitration.

  • Binding arbitration – the parties agree to accept the arbitrator’s decision as final.
  • Nonbinding arbitration – the parties may request a trial if they do not accept the arbitrator’s decision.

Neutral Evaluation

In neutral evaluation, a neutral third party provides an evaluation of both parties’ cases including the following.

  • Strengths and weaknesses
  • Likely outcome should the case proceed to trial

The third party is typically a subject matter expert and, upon request, can provide settlement assistance.

Mediation

In mediation, a neutral third party (the mediator) helps facilitate a resolution between the two parties. Mediation differs from arbitration and litigation because the mediator does not make a decision.

What is a Mediator?

A mediator is a neutral third party that facilitates a discussion between two parties to help them reach an amicable resolution. He/she may have specialized training, knowledge, or experience. During mediation, the mediator does not act as a judge or an attorney.

Mediators do not:

  • Take sides
  • Make decisions regarding the dispute
  • Represent the parties
  • Give legal advice

What is the Goal of Mediation?

The goal of mediation is to resolve some or all of the issues in dispute. Mediation can help parties resolve child custody issues and/or property disposition.

Mediation is not like litigating in front of a judge. In litigation, parties present evidence and the judge makes a decision regarding the resolution of the dispute. In mediation, parties do not present evidence and the mediator does not make a decision. The mediator helps both parties work towards a resolution of their issues. Parties cannot win or lose a mediation.

Mediation Style

Mediators have different styles and methods. In Nevada, a private party may provide mediation or the Family Mediation Center may provide mediation. The mediation method will vary depending on the provider.

Facilitative Mediation

One method of mediation is facilitative. In facilitative mediation, the mediator helps parties reach a mutually agreed upon resolution. The mediator facilitates the process while the parties work towards a resolution. Typically both parties are present during the session(s) and must actively participate.

The mediator:

  • Asks questions
  • Validates the position of each side
  • Tries to understand the interests of each party
  • Assists in exploring options for resolution

The facilitative mediator does not:

  • Make recommendations
  • Give advice
  • Provide opinions
  • Speculate as to what the court may do in the case

What Happens in Mediation?

The mediator will go over their process and method with the parties at the start of the session. Both parties are present unless there is a health/safety issue involved.

During mediation, the parties will not argue their sides but instead will go over the disputed issues and identify factors of importance. The mediator will not force the parties to agree to anything.

Mediation puts control into the hands of the parties, instead of the courts. Parties attending mediation must actively work towards a resolution. In mediation, most parties do not get everything they want. However, they may come to an agreement that serves their interests.

During mediation, parties may need additional time or information to reach an agreement. If parties need additional time, the mediator can continue the session. Parties may or may not have their attorneys present for mediation.

At the conclusion of the mediation session, individuals may come to a complete or partial agreement. If parties reach a complete (or partial) agreement, parties may formalize their agreement in writing. If attorneys are not present, parties may request that they review the agreement with their attorneys.

If parties cannot come to an agreement (or reach an impasse), then parties proceed to litigation.

Is Mediation Confidential?

Yes, in most cases what parties discuss in mediation is confidential. Parties cannot use their mediation conversations in litigation. The mediator should go over confidentiality at the session.

During mediation, the parties may speak privately with the mediator. Parties should agree at the beginning of the mediation whether the mediator can share information from private conversations with the other party.

Does Mediation Cost Money?

Yes, Nevada family law mediation costs money. The cost will vary depending on the mediator and the amount of time for your sessions. Mediation is typically less expensive than litigation because it takes less time and requires less preparation.

Before attending mediation, parties should know the cost of the session(s) and their individual responsibility for the costs. Individuals may agree to split the costs.

What Happens if Parties Can’t Agree in Mediation?

If parties cannot come to an agreement in mediation, their case may proceed to an evidentiary hearing or a trial.

Nevada Family Law Mediation Statutes and Rules

Below are some of the rules and statutes that apply to family law mediation in Clark County. The statutes and rules are not reproduced in their entirety and portions may be omitted. Use the hyperlinks to access the complete statutes and rules.

Mandatory Mediation Statute for Child Custody or Visitation

Nevada Revised Statute 3.475 states that in a county whose population is 700,000 or more, the court shall establish the following.

  • A program of mandatory mediation in cases that involve the custody or visitation of a child.

Per Nevada Revised Statute 3.475, the mandatory mediation program must:

  • Require the impartial mediation of the issues of custody and visitation.
  • Authorize the impartial mediation of any other nonfinancial issue deemed appropriate by the court.
  • Authorize the court to exclude a case from the program for good cause shown, including, but not limited to, a showing that:
    1. There is a history of child abuse or domestic violence by one of the parties;
    2. The parties are currently participating in private mediation; or
    3. One of the parties resides outside of the jurisdiction of the court.

Family Court Alternative Dispute Resolution

Per Nevada Revised Statute 3.225, the family court shall, wherever practicable and appropriate, do the following.

  • Encourage the resolution of disputes before the court through nonadversarial methods or other alternatives to traditional methods of resolution of disputes.
  • Cooperate with agencies providing support services.

Mandatory Mediation Rule for Contested Child Custody

In Clark County, Rule 5.303 mandatory mediation program applies to mediation. Unless ordered otherwise, all parties to a contested child custody proceeding must attend mediation through one of the following.

The court may refer the parties to mediation at any time, at the request of one or both parties, or on its own motion.

The court may waive mediation in individual cases if any of the following occur.

  • There are issues of child abuse or domestic violence involved.
  • A party lives out of state.
  • Other good cause shown.

Mediation shall be

  • Held in private
  • Confidential

Every mediator shall report in writing the following.

  • That the parties successfully mediated a full or partial parenting agreement (providing that agreement to the court).
  • If the parties reached an impasse.
  • Identify any party who failed to appear or refused to participate.

Counsel of record may attend mediation sessions with their clients unless otherwise ordered.

No mediator shall conduct an evaluation of the parties after mediation or as part of the mediation process.

No mediator shall provide recommendations as part of the mediation process.

Mediations at the Family Mediation Center

The Family Mediation Center shall establish procedures to assure the screening of cases prior to any contact between the parties in the mediation process. Screening shall identify whether cases are inappropriate for mediation or may require special protocols for the protection of parties.

Mediation at the Family Mediation Center shall not address or include in any agreement terms for the following.

  • Child support
  • Spousal support
  • Fees and allowances
  • Exclusive possession of a residence
  • Any matter involving money to be paid by a party