Alternative Dispute Resolution

Alternative Dispute Resolution - Kansas Family Law Code

Article 35.—ALTERNATIVE DISPUTE RESOLUTION

23-3501. Mediation; defined. 

Mediation under this section is the process by which a neutral mediator appointed by the court, or by a hearing officer, assists the parties in reaching a mutually acceptable agreement as to issues of child custody, residency, visitation, parenting time, division of property or other issues. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator.

23-3502. Same; when ordered; appointment and qualifications of mediator.

(a) The court or hearing officer may order mediation of any contested issue of child custody, residency, visitation, parenting time, division of property or other issues, at any time, upon motion of a party or on the court's own motion.

(b) If the court or hearing officer orders mediation under subsection (a), the court or hearing officer shall appoint a mediator, taking into consideration the following:

(1) An agreement by the parties to have a specific mediator appointed by the court or hearing officer;

(2) the nature and extent of any relationships the mediator may have with the parties and any personal, financial or other interests the mediator may have which could result in bias or a conflict of interest;

(3) the mediator's knowledge of (A) the Kansas judicial system and the procedure used in domestic relations cases, (B) other resources in the community to which parties can be referred for assistance, (C) child development, (D) clinical issues relating to children, (E) the effects of divorce on children and (F) the psychology of families; and

(4) the mediator's training and experience in the process and techniques of mediation.

23-3503. Duties of mediator.

(a) A mediator appointed under K.S.A. 2015 Supp. 23-3502, and amendments thereto, shall:

(1) Inform the parties of the costs of mediation;

(2) advise the parties that the mediator does not represent either or both of the parties;

(3) define and describe the process of mediation to the parties;

(4) disclose the nature and extent of any relationships with the parties and any personal, financial or other interests which could result in bias or a conflict of interest;

(5) advise each of the parties to obtain independent legal advice;

(6) allow only the parties to attend the mediation sessions;

(7) disclose to the parties' attorneys any factual documentation revealed during the mediation if at the end of the mediation process the disclosure is agreed to by the parties;

(8) ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children; and

(9) inform the parties of the extent to which information obtained from and about the participants through the mediation process is not privileged and may be subject to disclosure.

(b) The mediator may meet with the children of any party and, with the consent of the parties, may meet with other persons.

(c) The mediator shall make a written summary of any understanding reached by the parties. A copy of the summary shall be provided to the parties and their attorneys, if any. The mediator shall advise each party in writing to obtain legal assistance in drafting any agreement or for reviewing any agreement drafted by the other party. Any understanding reached by the parties as a result of mediation shall not be binding upon the parties nor admissible in court until it is reduced to writing, signed by the parties and their attorneys, if any, and approved by the court. If the parties are not represented by attorneys, the mediator shall provide to the court or hearing officer the written summary of any understanding signed by the parties, which, if approved by the court or hearing officer, shall be incorporated in the order of the court or hearing officer.

(d) The mediator may act as a mediator in subsequent disputes between the parties. However, the mediator shall decline to act as attorney, counselor or psychotherapist for either party during or after the mediation or divorce proceedings unless the subsequent representation, counseling or treatment is clearly distinct from the mediation issues.

23-3504. Termination of mediation. 

(a) At any time after the second mediation session, either party may terminate mediation ordered under K.S.A. 2015 Supp. 23-3502.

(b) The mediator shall terminate mediation whenever the mediator believes that: (1) Continuation of the process would harm or prejudice one or more of the parties or the children; or (2) the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely.

(c) The mediator shall report the termination of mediation to the court. The mediator shall not state the reason for termination except when the termination is due to a conflict of interest or bias on the part of the mediator.

23-3505. Confidentiality. 

(a) A mediator appointed under K.S.A. 2015 Supp. 23-3502, and amendments thereto, shall treat all verbal or written information transmitted between any party to a dispute and a mediator conducting the proceeding, or the staff of an approved program under K.S.A. 5-501 et seq., and amendments thereto, as confidential communications. No admission, representation or statement made in the proceeding shall be admissible as evidence or subject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during the proceedings unless all the parties consent to a waiver. Any party and the neutral person or staff of an approved program conducting the proceeding, participating in the proceeding has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the proceeding. The privilege may be claimed by the party or the neutral person or anyone the party or the neutral person authorizes to claim the privilege. A neutral person conducting the proceeding shall not be subject to process requiring the disclosure of any matter discussed within the proceedings unless all parties consent to a waiver.

(b) The confidentiality and privilege requirements of this section shall not apply to:

(1) Information that is reasonably necessary to allow investigation of or action for ethical violations against the neutral person conducting the proceeding or for the defense of the neutral person or staff of an approved program conducting the proceeding in an action against the neutral person or staff of an approved program if the action is filed by a party to the proceeding;

(2) any information that the mediator is required to report under K.S.A. 2015 Supp. 38-2223, and amendments thereto;

(3) any information that is reasonably necessary to stop the commission of an ongoing crime or fraud or to prevent the commission of a crime or fraud in the future for which there was an expressed intent to commit such crime or fraud;

(4) any information that the mediator is required to report or communicate under the specific provisions of any statute or in order to comply with orders of the court; or

(5) any report to the court that a party has issued a threat of physical violence against a party, a party's dependent or family member, the mediator or an officer or employee of the court with the apparent intention of carrying out such threat.

23-3506. Costs. 

The costs of any mediation ordered under K.S.A. 2015 Supp. 23-3502 shall be taxed to either or both parties as equity and justice require, unless the parties have reached a reasonable agreement as to payment of the costs.

23-3508. Same; when ordered; appointment of case manager; qualifications. 

(a) The court may order case management, when appropriate, of any contested issue of child custody or parenting time at any time, upon the motion of a party or on the court's own motion. A hearing officer in a proceeding pursuant to K.S.A. 2015 Supp. 23-3401, and amendments thereto, may order case management, if appropriate, of a contested issue of child visitation or parenting time in such a proceeding.

(b) Cases in which case management is appropriate shall include one or more of the following circumstances:

(1) Private or public neutral dispute resolution services have been tried and failed to resolve the disputes;

(2) other neutral services have been determined to be inappropriate for the family;

(3) repetitive conflict occurs within the family, as evidenced by the filing of at least two motions in a six-month period for enforcement, modification or change of residency, visitation, parenting time or custody which are denied by the court; or

(4) a parent exhibits diminished capacity to parent.

(c) If the court or hearing officer orders case management under subsection (a), the court or hearing officer shall appoint a case manager, taking into consideration the following:

(1) An agreement by the parties to have a specific case manager appointed by the court or hearing officer;

(2) the financial circumstances of the parties and the costs assessed by the case manager;

(3) the case manager's knowledge of (A) the Kansas judicial system and the procedure used in domestic relations cases, (B) other resources in the community to which parties can be referred for assistance, (C) child development, (D) clinical issues relating to children, (E) the effects of divorce on children and (F) the psychology of families; and

(4) the case manager's training and experience in the process and techniques of alternative dispute resolution and case management.

(d) To qualify as an appointed case manager, an individual shall:

(1)

(A) Be currently licensed in Kansas as a licensed psychologist, licensed masters level psychologist, licensed clinical psychotherapist, licensed professional counselor, licensed clinical professional counselor, licensed marriage and family therapist, licensed clinical marriage and family therapist, licensed master social worker or licensed specialist social worker;

(B) be currently licensed to practice law in Kansas and have at least five years of experience in the field of domestic relations law or family law; or

(C) be a court services officer and have training in domestic relations cases as prescribed by the district court in which the case is filed;

(2) be qualified to conduct mediation;

(3) have experience as a mediator;

(4) attend one or more workshops, approved and as ordered by the district court in which the case is filed, on case management; and

(5) complete a minimum number of continuing education hours regarding case management issues or abuse and control dynamics issues as established and approved by the supreme court.

(e) On and after September 1, 2012, any case manager appointed by the court prior to, on or after July 1, 2012, shall meet the requirements of subsection (d).

23-3509. Case manager; duties; withdrawal; reassignment; recommendations. 

(a) A case manager appointed under K.S.A. 2015 Supp. 23-3508, and amendments thereto, shall:

(1) Meet with the parties, and other individuals deemed appropriate;

(2) gather information necessary to assist the parties in reaching an agreement or making recommendations, including medical, psychological, education and court records, including child custody investigations and child custody psychological evaluations, of the parties and children;

(3) report to the court as directed by court order;

(4) keep a record by date and topic of all contacts with the parties in the case. When requested, this record shall be made available to the court in total or summary form without the express consent of the parties and shall not be considered a medical or psychological record for purposes of confidentiality;

(5) notify the court when a party fails to meet the financial obligations of the case management process;

(6) file for collection of costs as necessary. The court shall assist in such filing or collection efforts, or both;

(7) be authorized by the court to report threats, imminent danger, suspected child abuse, fear of abduction and suspected or actual harm to any party or child involved in case management either directly to the court and to other authorities, or both. Such action shall be followed by a written summary within five business days of the initial filing of such report which shall be sent to the judge or the judge's designee and included in the court file; and

(8) directly contact the court with any other information the case manager determines that the court should know.

(b) A case manager appointed under K.S.A. 2015 Supp. 23-3508, and amendments thereto, may withdraw at any time following the initial order. Sufficient reasons for withdrawal may include, but not be limited to, the following:

(1) Loss of neutrality which prevents objectivity;

(2) nonpayment by a party;

(3) lack of cooperation by a party;

(4) threat to a party;

(5) retirement or case load reduction by a case manager; or

(6) any other reason which shall be stated to the court in writing and considered adequate and sufficient reason by the court.

(c) A disputant party may request reassignment of a case manager by filing a motion with the court. The court shall consider such requests upon review. Repeated requests may raise a presumption of lack of parental cooperation and the court may consider sanctions against the uncooperative parent or parents.

(d)

(1) If parties have been ordered by the court to attempt to settle the party's disputes with the assistance of a case manager, and are unable to settle such disputes, the parties are to follow the recommendation or recommendations of the case manager as ordered by the court.

(2) When a case manager is forced to make recommendations for the parties, such recommendations shall be noted in writing as soon as possible and may be accompanied by supporting information. Such recommendation shall be reported to the court with copies to the attorneys of record for each party within 10 working days.

(3) Agreements of the parties and recommendations of the case manager which may concern temporary arrangements need not be entered into the court record by the attorneys of record.

(4) Case managers shall be furnished a form for orders to recommend such agreements to the court for the court's final order.

(5) Permanent issues such as designation of custody, primary residence or child support which are recommended by the case manager shall be entered into the court record within 10 working days of receipt of the recommendation. Should there be differing opinions as to the language of the journal entry, the case manager shall review the proposed journal entry and may recommend appropriate language to the court.

(6) If a disputant party disagrees with a recommendation such party may file a motion before the court for a review at which time an order shall be made by the court. The case manager shall explain to the court either by report or testimony the reasons for such recommendation or recommendations.

(7) Costs of the procedure and professional time may be assessed to the party who objected to the recommendations in the journal entry or may be otherwise assessed by the court.

23-3510. Counseling. 

(a) Family counseling. At any time prior or subsequent to the alteration of the parties' marital status the court may order that any party or parties and any of their children be interviewed by a psychiatrist, licensed psychologist or other trained professional in family counseling, approved by the court, for the purpose of determining whether it is in the best interests of any of the parties' children that the parties and any of their children have counseling regarding matters of legal custody, residency, visitation or parenting time. The court shall receive the written opinion of the professional, and the court shall make the opinion available as provided by K.S.A. 2015 Supp. 23-3210, and amendments thereto. Any professional consulted by the court under this section may be examined as a witness. If the opinion of the professional is that counseling is in the best interests of any of the children, the court may order the parties and any of the children to obtain counseling. Neither party shall be required to obtain counseling pursuant to this section if the party objects thereto because the counseling conflicts with sincerely held religious tenets and practices to which any party is an adherent.

(b) Costs. The costs of the counseling shall be taxed to either party as equity and justice require.

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