Judges don't want to make important decisions regarding your life any more than you want them to. The legislatures in most states are set up to give divorcing couples every opportunity to reach a settlement agreement on their own through mediation before going to trial. In Michigan, some mediation is mandatory. Other types of mediation are elective.
Custody mediation is mandatory in Michigan when parents divorce. The Friend of the Court -- an office of the Circuit Court -- handles this type of mediation. Because the FOC is part of the court system, the service is usually free. In some counties, an FOC representative conducts the mediation, but in others, the FOC office appoints a private mediator. Anything parents divulge to an FOC mediator is confidential. The FOC mediator can't share it with the court and can't testify at trial.
Reaching an Agreement
If parents aren’t contesting custody, the FOC mediator will report this to the court and recommend that a judge accept their proposed parenting plan. In some counties, the mediator will write up the custody agreement and the parents can sign it. If spouses are using attorneys, one of their lawyers will usually convert the agreement into an order and submit it to the court. If the judge believes that the agreement serves the children's best interests -- which is usually the case -- the judge will sign the order, and this aspect of the divorce is officially removed from the litigation.
Objecting to the FOC Recommendation
If parents don't reach a custody agreement in mediation, the FOC representative will submit a report to the judge. The report doesn't include confidential information. It makes a recommendation regarding how the mediator believes custody issues should be resolved. Parents or their attorneys receive a copy of the recommendation when it's submitted to the judge. If they don't agree with it, they can object. They must then return to mediation, and a different FOC representative will conduct a custody investigation. After the investigation, the FOC will submit a second report and recommendation to the judge. Only a judge can make a final custody decision at trial. The judge does not have to follow the investigator's recommendation, though he may consider it, along with testimony and other evidence.
Mediating Other Divorce Issues
Although FOC custody mediation is mandatory, Michigan law allows parents to also use a mediator of their own choice, in addition to the FOC mediator. This process is sometimes called "alternative dispute resolution." Unlike mediation with an FOC representative, the details are not confidential. The FOC office can also mediate other divorce issues if spouses request it, or they're free to choose a different mediator. If spouses reach an agreement in mediation, they or their attorneys can submit it to the court and a judge will incorporate the details into a decree.
Mediation Vs. Arbitration
Mediation isn't the same as arbitration. Although the process is similar, an arbitrator will ultimately make a decision regarding contested issues if spouses can't reach a settlement, just as a judge would. The arbitrator's ruling is incorporated into an order and becomes final and binding.