By Julie Black-Henry, CPM
Idaho Mediation, LLC
As a certified professional mediator and paralegal with nearly 21 years of experience in the Idaho Family Law Sector, I know working with the Court can be intimidating. Court-ordered mediation processes and procedures differ from non-court-ordered mediation, and understanding the unique steps of each is vital to productive mediation.
The following guide offers recommended processes and procedures of court-ordered and non-court-ordered mediation, as well as best-practice dos and don’ts. They are taken from my IMA 2025 Annual Conference last September titled, “Dos and Don’ts of Mediation.” I hope you find them helpful.
Process and procedures of court-ordered mediation
1. Receive the order for mediation from the Court and/or Attorney and review it for instructions and deadlines.
2. Check for conflict with the parties.
3. Provide each party with Intake form(s), if applicable to complete and return to you.
4. Schedule the initial mediation session.
5. File an initial case status report with the Court (Scheduled, Withdrawing, etc).
6. At the onset of your Mediation session, have each party sign an Agreement to Mediate (also known as an Informed Consent to Mediate) and/or review the Agreement to Mediate with the parties. This must be signed and consented to in order to continue your mediation session.
7. File a post-mediation case status report with the Court (Ongoing, Agreement, Impasse).
8. Mediate a second session, if applicable and so on.
9. File a post-mediation case status report with the Court (Ongoing, Agreement, Impasse).
10. Draft a Memorandum of Understanding (MOU) and either email it to the parties to review with their individual legal counsel or review it with them.
11. Once approved, provide the final MOU to the parties for signature and/or email it to their attorneys for execution with the Court.
Process and procedures of non-court-ordered mediation
1. Check for any conflicts of interest with the parties. 2. Provide each party with an Intake form(s), if applicable, to complete and return to you.
3. Schedule the initial mediation session(s).
4. At the onset of your Mediation session, have each party sign an Agreement to Mediate (also known as an Informed Consent to Mediate) and/or review the Agreement to Mediate with the parties. This must be signed and consented to, to continue with your mediation session.
5. If an agreement is reached, draft an MOU and review it with the parties. Then email it to the parties to review with their individual legal counsel.
6. Once approved, provide the final MOU to the parties for signature or email it to their attorneys for execution with the Court, if applicable.
Best practices dos of mediation
1. Set up mediation with positive expectations from the beginning.
2. Explain your Agreement to Mediate, your process during mediation, and the expectations you have during your mediation session.
3. Acknowledge emotions, values, and positions.
4. During the mediation session, identify:
- Short narrative of the dispute/topics/issues by both parties
- Essential terms and agreements
- Risks and contingencies
- Options of enforcement and mechanics
5. Confidentiality and privilege
6. Draft durable agreements.
7. Follow Idaho Rules of Evidence 408 and 507, Idaho Rules of Family Law Procedures 602–603, Idaho statutes, Idaho’s Uniform Mediation Act (Title 9, Ch. 8), The Model Standards of Conduct of Mediators, IMA’s Policies and Procedures, if applicable, as standard practice, and Disciplinary Actions-Court level and IMA level. These are typically covered during mediation training, education, and certification.
Costly don’ts of mediation
1. Giving legal advice (Idaho Statute § 3-420 and § 3-104).
2. Not following local and state law rules, or
3. Confidentiality missteps. Remind parties that communication outside mediation – emails, texts, and phone calls – is not confidential.
4. Adversarial posturing.
Key components: MOU and final documents
- Should contain clear and concise details of the agreement and secondary options that reflect what-if scenarios.
- A final MOU is provided to mediation clients for their own court-filing process, and/or can be filed by an attorney representing them.
Following the processes, procedures, and best practices detailed above will enable you to provide your court-ordered and non-court-ordered mediations with the best possible outcomes.
