Mediation and Parenting Seminars in Georgia Custody Cases

What mediation is

The Supreme Court of Georgia’s Alternative Dispute Resolution (ADR) Rules define mediation as a process in which a neutral facilitates settlement discussions between the parties. The mediator has no authority to make a decision or impose a settlement. The rules note that in court programs the parties may be ordered to attend a session, but any settlement is entirely voluntary.

Under the Uniform Rules for Dispute Resolution Programs (Appendix A to the ADR Rules):

• Except as the rules provide, any contested matter filed in superior court may be referred to ADR, and cases are screened by the judge or court program to decide whether ADR is appropriate, whether the parties can pay the neutral if payment is required, and whether a need for emergency relief makes referral inappropriate until that request is heard (Rule 2(B)).
• Any party may petition the court to refer the case to mediation or another ADR process (Rule 2(D)).
• Parties may be ordered to attend a mediation session, but the order must clearly state that compliance does not require settlement (Rule 2(F)).
• A party may apply to the court for interim or emergency relief at any time (Rule 2(H)).

Confidentiality

Statements made during a court program mediation session, or during intake by program staff or the neutral in preparation for it, are confidential, not subject to disclosure, may not be disclosed by the neutral or staff, and may not be used as evidence in a later proceeding. A written and executed agreement or memorandum of agreement is not covered by that confidentiality (Appendix A, Rule 8(A)). Unless local court program rules provide otherwise, documents generated for the mediation are not subject to discovery, but otherwise discoverable material is not shielded just because it was used in mediation (Rule 8(B)).

Confidentiality has limits (Appendix A, Rule 9). It does not cover:

• Whether a party appeared;
• Threats of imminent violence to self or others;
• A mediator’s belief that a child is being abused;
• Situations where the safety of any party or third person is in danger; or
• A party’s assertion that their capacity to negotiate in good faith and make informed decisions was impaired during the mediation.

Parties should be told about these limits at the beginning of each conference (Rule 9(E)).

Domestic violence screening

Appendix D, the Rules for Mediation in Cases Involving Issues of Domestic Violence, sets these rules:

• Criminal cases involving domestic violence are never referred to mediation from any court, and cases arising solely under the Family Violence Act are not referred to mediation from any court (Rule 1(a), (b)).
• A divorce or other domestic relations case that contains a count under the Family Violence Act is not precluded from mediation and should be screened. Mediators may not mediate away protective orders or criminal charges (Rule 1(b), note 12).
• All court programs screen domestic relations cases, including cases referred directly from the bench (Rule 1(c)). The final decision on whether mediation is appropriate is made by ADR program staff (Rule 2(a)).
• A party identified as at risk is given the choice whether to proceed with mediation, after being told, among other things, that the mediation can be ended at any time, that they may bring an attorney or, without one, a domestic violence advocate, and that shuttle (caucus only) mediation is an option (Rule 2(b)).

What to send before mediation

Where financial issues are involved, the parties must serve on each other the Domestic Relations Financial Affidavit and, where applicable, the child support worksheets and schedules at least 5 days before any mediation or other ADR proceeding (Uniform Superior Court Rule 24.2).

Cost

There is no uniform statewide compensation system for mediators. Every court program in which neutrals are paid by the parties must provide ADR services free of charge to indigent parties (ADR Rules, Section VI). Ask your court’s ADR program how fees work locally.

Parenting seminars

Uniform Superior Court Rule 24.8 allows a superior court circuit to establish a program educating parties about the effects of divorce on children. Where one exists:

• The judges may require any or all parties in a domestic relations action to attend an educational seminar of no more than four hours (Rule 24.8(B)).
• The program may charge a fee, but there must be a fee waiver procedure for indigent parties (Rule 24.8(D)).
• Attendance is ordered by the court, and the assigned judge may waive it for good cause, such as living outside Georgia or the county, or the availability of a similar program (Rule 24.8(E)).
• Unless waived, failing to complete the seminar can lead to action by the judge, including withholding a final divorce decree, contempt, and fees (Rule 24.8(E)).

Binding arbitration

Parents may agree to binding arbitration on custody, visitation, parenting time, and the parenting plan, and may choose their arbiter and which issues the arbiter decides. The arbiter’s decision is incorporated into the final custody decree unless the judge makes specific written factual findings that it would not be in the child’s best interests (O.C.G.A. § 19-9-1.1). When a military parent’s impending deployment prevents expedited court adjudication, the court may allow arbitration under § 19-9-1.1 or order mediation (§ 19-9-3(i)(15)).

When you reach an agreement

Parents may present the judge with an agreement on any or all custody issues. The judge must ratify it and make it part of the final judgment unless the judge makes specific written factual findings that it would not be in the child’s best interests (O.C.G.A. § 19-9-5). A child support agreement is reviewed separately: if it does not comply with the guidelines and lacks the findings needed to support a deviation, the court must reject it (§ 19-6-15(c)(6)).

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• Supreme Court of Georgia ADR Rules, with Appendix A (Uniform Rules for Dispute Resolution Programs) and Appendix D (domestic violence)
• Uniform Superior Court Rules 24.2 (financial data) and 24.8 (court mandated programs)
• O.C.G.A. § 19-9-1.1, binding arbitration
• O.C.G.A. § 19-9-5, custody agreements
• O.C.G.A. § 19-9-3(i)(15), deployment and ADR
• O.C.G.A. § 19-6-15(c)(6), support agreements