What Is Divorce Mediation, Missouri Rules Aside?
A structured negotiation led by a neutral who cannot decide anything, run under Missouri Supreme Court Rule 88 rather than the general civil rule, and required in some form in all four circuits around St. Louis.
Six things carry this subject, and the first one catches most articles out.
- Family mediation runs on Rules 88.02 to 88.08, not on Rule 17
- The issues that can be mediated go well beyond custody
- Whether it is required, and over what, changes at every county line
- Either party may end court ordered mediation after two hours
- Nothing binds until it is written, signed and approved by the court
- Confidentiality is real but it has limits, and one St. Louis County option is not confidential at all
Which Missouri Rules Govern Divorce Mediation?
Rules 88.02 to 88.08, and Rule 17 says so itself. Divorce mediation Missouri courts order in a family case does not run on the general civil rule.
A great deal of general writing about mediation in Missouri cites Rule 17, the civil alternative dispute resolution rule. That is the wrong starting point for a family case, and the rule text is explicit about it.
Rule 17.01 states its own purpose as providing “an alternative mechanism for the resolution of civil disputes, except those subject to Supreme Court Rules 88.02 to 88.08.” Rule 17.03 makes the same point more briefly, providing that “a civil action shall be ordered to alternative dispute resolution upon stipulation of the parties except in cases governed by Rule 88.”
Note that the two rules do not say it the same way. Rule 17.01 names the range 88.02 to 88.08. Rule 17.03 refers only to Rule 88 generally. Anyone attributing the enumerated range to 17.03 is quoting a sentence that is not there.
So custody, parenting time, child support, maintenance and property division in a divorce mediation Missouri case are governed by Rule 88 and by your circuit’s local rule. If an article you are reading rests on Rule 17, it is describing a process that does not apply to your family.
What Issues Can Actually Be Mediated?
Far more than custody, and the rule leaves the list open. This is where divorce mediation Missouri practice diverges most from the national articles.
Rule 88.02 authorizes circuits to establish mediation programs for contested issues in domestic relations and paternity cases, naming child custody, parenting time, parenting plans, child support, maintenance and property division. Rule 88.04 then lets a court order mediation of “any contested issue” in such a case, “including, but not limited to” that same list.
Read the four words including but not limited to. The list is a floor rather than a ceiling. A dispute about a closely held company, a professional practice, deferred compensation or a complicated balance sheet can be mediated, because it is a contested issue in the case even though the rule does not name it.
For an owner or a professional that changes the preparation entirely. Financial records, a valuation position, tax information and a clear statement of what is actually in dispute have to exist before a session can be useful. Our page on divorce for business owners covers what those cases require.
Rule 88.04 also encourages circuits to adopt their own local mediation rules, which is why the next question has four different answers.
Is There a Conflict About Child Support?
Two published texts point in different directions, and the tension is narrower than it first looks.
Rule 88.02 lists child support among the issues a circuit may mediate. Section 452.372.3 RSMo provides that an alternative dispute resolution program “ordered by the court pursuant to this section” shall “not be ordered or utilized for child support issues.”
Note the four words pursuant to this section. The statutory prohibition attaches to a program ordered under Section 452.372, whose subsection 2 is aimed at cases involving custody or visitation issues. Rule 88.04 is a separate source of authority. That does not dissolve the tension, and we have not identified a published Missouri decision reconciling the two. That being said, in practice, it is common for child support to be addressed in family court mediation.
So this is a question to raise in your own circuit rather than one to answer from a website. Anyone giving you a confident answer without reading the local rule and the current statute is going further than the published law does. Our page on child support in Missouri covers how the figure itself is built.
Is Mediation Required Where My Case Is Filed?
In some form, yes, in all four circuits around St. Louis. What differs is the scope, the mediator and the mechanics.
- St. Louis County, the 21st Circuit. The broadest of the four. Local Rule 68.14 reaches contested domestic relations and paternity cases and expressly includes maintenance and property division, not only the children’s issues. It also names domestic violence, abuse and a significant imbalance of negotiating power as possible good cause
- St. Louis City, the 22nd Circuit. Required where custody or visitation is a genuine and substantial issue, and the mediator is a Deputy Juvenile Officer assigned to the Family Court rather than a private neutral you choose
- St. Charles County, the 11th Circuit. A minimum session length with the mediator drawn from a court maintained list. Confirm the current local rule directly, since the 11th Circuit rulebook has not been publicly retrievable
- Jefferson County, the 23rd Circuit. A minimum session plus a second stage called judicial mediation, conducted by a judge after the mandatory hours are done
That St. Louis County difference is the one that surprises people. If your case is in the County and the fight is about a business, a valuation or maintenance, divorce mediation Missouri style may reach the money whether or not anybody chose it. Local rules also change without announcement, so confirm the current version before relying on a deadline.
Can I Be Made to Stay in Mediation?
No. Either party may end court ordered mediation after two hours. Divorce mediation Missouri courts compel is a requirement to attend and participate, not a requirement to stay until somebody agrees.
Rule 88.07(a) is one sentence. “At any time after two hours of mediation either party may terminate mediation ordered under Rule 88.04.”
Two limits sit inside that. The clock runs on mediation actually conducted, so it is a right that attaches after you participate rather than a way to skip the appointment. And it is expressed as to mediation ordered under Rule 88.04. It is not a two hour maximum either. Plenty of sessions run longer because they are working.
The mediator carries a separate and mandatory duty. Rule 88.07(b) provides that the mediator “shall terminate mediation” whenever the mediator believes that continuing “would harm or prejudice one or more of the parties or the children,” or that the ability or willingness of any party to participate meaningfully is so lacking that a reasonable agreement is unlikely.
That second duty belongs to the mediator, not to you. It is not something a party has to move for. Our page on when divorce mediation may not be recommended covers the circumstances that make a case a poor fit in the first place.
Does Anything Said in Mediation Bind Me?
Not by itself, and three separate provisions say so. Nothing said in divorce mediation Missouri courts ordered becomes an obligation on its own.
Rule 88.06(c) provides that any understanding reached “shall not be binding upon the parties until it is reduced to writing, signed by the parties and their attorneys, if any, and approved by the court.” Rule 88.08(c) provides that “all mediations shall be non-binding unless the parties enter into a written agreement as provided in Rule 88.08(d).” And Section 452.372.3 RSMo provides that a program ordered under that section shall “not be binding on the parties.”
Then the court applies a standard that favours what you negotiated. Section 452.325.2 RSMo makes the terms of a separation agreement, “except terms providing for the custody, support, and visitation of children,” binding upon the court unless it finds them unconscionable. Unconscionable is a far lower bar than the just standard applied when a judge divides property under Section 452.330.1 RSMo, and that gap is the strongest practical argument for mediating rather than trying.
Is Divorce Mediation Confidential in Missouri?
Generally yes under Rule 88.08, with three exceptions on the face of the rule and one local option that is not mediation at all. Confidentiality is the reason many owners choose divorce mediation Missouri circuits offer, so the limits are worth reading closely.
Rule 88.08(a) provides that mediation proceedings “shall be regarded as settlement proceedings” and that a communication relating to the subject matter made during the mediation “shall be a confidential communication,” not admissible and not subject to discovery. Rule 88.08(b) provides that a mediator “shall not be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation.”
The three exceptions are information released under Rule 88.06(a)(6), facts that were independently discoverable, and limited testimony to enforce a written settlement under Rule 88.08(e).
The independently discoverable exception is the one that matters to an owner. Rule 88.08(a) provides that “no fact independently discoverable shall be immune from discovery by virtue of having been disclosed” in a confidential communication. Mediation protects the conversation. It does not shelter a document, and it does not make a fact disappear.
There is also a St. Louis County option worth knowing about. The court offers a Domestic Relations Services route for developing a parenting plan, and the court’s own materials describe that work as not confidential mediation. Confirm that with the court before choosing it or making sensitive disclosures inside it.
Do I Still Need My Own Attorney?
The rule requires the mediator to tell you so in writing, which is unusual and worth noticing.
Rule 88.06 requires the mediator to advise the parties in writing that the mediator does not represent either of them, and to advise each party to obtain independent legal advice. Rule 88.06(c) requires the mediator, again in writing, to “advise each party in writing to obtain legal assistance in drafting any agreement or for reviewing any agreement drafted by the other party.”
A rule does not usually tell a professional to send everybody to somebody else. This one does, twice, and the reason is structural rather than defensive.
A neutral helps two people communicate. A neutral does not tell you what your marital estate is worth, whether a valuation method holds up, or what a just division under Section 452.330 RSMo might look like on your facts. That is a different job, and in a case with a business or a large estate it is the job that decides the outcome. Our high net worth divorce practice and our FAQ on dividing marital property cover that side.
Who Can Help With Divorce Mediation in Missouri?
The most valuable hour in a mediated case is usually the one spent before the session, deciding what you actually need and what you can trade, and the second most valuable is the one spent reading the draft afterward.
Bardol Law Firm practices only family law and works on both sides of divorce mediation Missouri families face, in St. Louis County, St. Louis City, St. Charles County and Jefferson County. You can read more about our mediation practice, about property and asset division, and the rest of our family law questions and answers.
You should not have to chase your attorney for a straight answer with a mediation date on the calendar. Every client here has a named paralegal on the file, and we generally return calls within one business day.
Family Law, Simplified.
If a session is scheduled and nobody has walked you through what your circuit requires, that is the conversation to have first. Contact Bardol Law Firm or call 314.918.0100.
This page is general information about Missouri law and is not legal advice. Local court rules change without notice, so confirm the current rules for your own circuit. Every case turns on its own facts. The choice of a lawyer is an important decision and should not be based solely upon advertisements.