– from Kathy E. in Farmington, WI

Question Details:

My husband and I are pursuing a divorce. We have been married for nearly a decade, and have two children. We both want custody, and therefore, cannot agree on visitation. When we go to court, can a judge order us to seek mediation and arbitration?

Family Law Attorney Response:

“Yes and no.

Aside from court ordered mediation, seeking mediation on your own is always a good idea when you cannot agree on critical issues like child custody.

If you haven't already, you should seek legal representation from an experienced family law attorney right away. He/she will assist you during mediation, and represent your interests during the divorce proceedings. As for your question, it is possible that a court would order you both to seek mediation services. However, arbitration by a person or persons outside of the legal system would be delegating an un-delegable duty.

In the case of Biel v. Biel, 114 Wis. 2d 191, 336 N.W.2d 404 (Ct. App. 1983), the court had ordered mediation and arbitration by a social worker. Upon review of the order, the court of appeals found that even though the order of mediation was proper, arbitration was a duty of the court and not to rest on an outside source.”

Dan Exner, J.D.

Family Law Attorney

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