Mediation is a private meeting, or a series of them, in which a neutral person helps divorcing spouses work out their own agreement. The mediator does not decide anything. Montana has a set of family law mediation statutes, MCA §§ 40-4-301 to 40-4-308, plus a general confidentiality statute, and together they answer the questions people ask most: can a court make us go, what if there has been abuse, is it confidential, and who pays. This page is part of our Montana Divorce Guide.
What Mediation Is Under Montana Law
Montana defines mediation as "a private, confidential, informal dispute resolution process in which an impartial and neutral third person, the mediator, assists disputing parties to resolve their differences." Decision-making authority "remains with the parties," and the mediator "does not have authority to compel a resolution or to render a judgment on any issue" (MCA § 26-1-813(1)).
In a family case, the mediator's task is to try to settle "the parenting, child support, parental contact with the child, maintenance, or property settlement dispute," and the mediator "may not use coercive measures" to do it (MCA § 40-4-302(2)). The stated purpose is to reduce acrimony and to develop an agreement that supports the best interests of any child involved (MCA § 40-4-302(1)).
That makes mediation different from a trial and from arbitration, where someone else decides. It also differs from hiring a lawyer. A mediator works with both of you and represents neither.
When a Court Can Order Mediation
The district court "may at any time consider the advisability of requiring the parties to a proceeding under this chapter to participate in the mediation of the case," and "any party may request the court to order mediation" (MCA § 40-4-301(1)).
Mediation also appears elsewhere in the parenting statutes. A court deciding a contested parenting case may include mediation as part of an investigation and report (MCA § 40-4-215(2)(b)), and it may order parents into a dispute resolution process, which may include counseling or mediation, to resolve conflicts over adopting a parenting plan (MCA § 40-4-234(4)).
Local rules matter as well. The Fourth Judicial District's Rules of Practice require a master-supervised settlement conference before a civil case is set for trial, "except as provided in" MCA § 40-4-301 (Local Rule 9(A)). Our guide to settlement conferences and standing masters covers that rule.
The Exception Where Abuse Is Suspected
Mediation assumes two people who can each speak for themselves. Where one has abused the other, that assumption can fail. The statute addresses it directly:
- Unless each party provides written, informed consent, the court may not authorize or permit continuation of mediated negotiations if it has reason to suspect that a party or a child of a party has been physically, sexually, or emotionally abused by the other party (MCA § 40-4-301(2)).
- Informed consent means "an educated, competent, and voluntary choice to enter into mediation" (MCA § 40-4-301(5)).
- If mediation does go forward, it may be conducted by a mediator trained in mediating domestic violence cases (MCA § 40-4-301(2)).
- In cases involving domestic violence, the provision that lets a mediator exclude attorneys from sessions does not apply, and a victim may elect to have advocates and support persons who are not attorneys present (MCA § 40-4-302(3)).
Note the standard. The court needs only a "reason to suspect" abuse. The statute does not require a conviction or an order of protection. If you are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233, and our Montana Domestic Violence Guide explains orders of protection. See also when agreement is not safe or possible.
What Stays Confidential
Family mediation proceedings "must be conducted in private unless otherwise agreed to in writing by the parties and the mediator," and all records of a mediation proceeding "are confidential and may not be used in evidence" in the family case (MCA § 40-4-303). The general statute adds detail (MCA § 26-1-813):
- Sessions are confidential, private, and held without a verbatim record, unless the parties and mediator agree otherwise in writing.
- Mediation-related communications, and information and evidence presented to the mediator, are confidential.
- The mediator's files are closed, and a mediator's report is not admissible and not subject to discovery or subpoena, with the exception of a signed, written agreement.
- The parties and the mediator are not subject to subpoena and may not be examined about mediation communications without the consent of the parties and the mediator.
There are three exceptions: disclosure required by statute, disclosure agreed to in writing by the parties and the mediator, and disclosure a mediator needs to establish a claim or defense in a dispute with a party (MCA § 26-1-813(5)). Confidentiality protects what is said in the room. It does not excuse either spouse from the financial disclosures the dissolution statutes require.
Who the Mediator Is and Who Pays
Each district court keeps a list of mediators, maintained by the clerk of court, and appoints from that list. By agreement of all parties, a mediator who is not on the list may be appointed (MCA §§ 40-4-301(3), 40-4-306). A listed mediator must have knowledge of the court system and family law procedures, of community resources, of domestic violence, of the mediation process, and, where applicable, of child development and the effects of dissolution on children (MCA § 40-4-307). The statute does not require a mediator to be a lawyer.
On cost, the statute is brief. A court may establish a fee schedule for the costs of administering the mediation statutes, and "the fees must be paid by the parties to the mediation proceeding" (MCA § 40-4-308). It does not say how a private mediator's fee is divided. For master-supervised settlement conferences in the Fourth Judicial District, the local rule says the parties shall agree on responsibility for the settlement master's fees and, unless they agree otherwise, each party pays 50 percent at the time of the conference (Local Rule 9(B) and (D)).
If You Reach an Agreement
An agreement reached in mediation "must be discussed by the parties with their attorneys, if any, before the agreement is finalized." It is not admissible as evidence "unless the agreement has been affirmed by the parties in a signed, written agreement," and the signed agreement is governed by MCA § 40-4-201 (MCA § 40-4-305).
In other words, a mediated deal becomes a separation agreement. The court reviews its property and maintenance terms for unconscionability and is not bound by its parenting or child support terms. Before the final decree, a mediator may recommend temporary orders to the court, but only if the parties stipulate to that (MCA § 40-4-304).
The Mediation Statutes at a Glance
| MCA | What it covers |
|---|---|
| § 40-4-301 | When a court may require mediation, the abuse exception, and how the mediator is appointed |
| § 40-4-302 | The purpose of mediation, the ban on coercive measures, and the role of attorneys |
| § 40-4-303 | Private sessions and confidential records |
| § 40-4-304 | Mediator recommendations for temporary orders, only if the parties stipulate |
| § 40-4-305 | Reviewing an agreement with your attorney and putting it in signed writing |
| §§ 40-4-306, 40-4-307 | The court's mediator list and minimum qualifications |
| § 40-4-308 | Court fee schedules, paid by the parties |
| § 26-1-813 | The general mediation confidentiality and privilege statute |
Misty Gaubatz of A&M Law holds a Certificate in Mediation. The firm also offers Cooperative Family Law, a different process in which the firm serves as a neutral for both spouses. Our page comparing the cooperative process and mediation explains the difference.
This page explains Montana law in general as of the 2025 Montana Code Annotated and the Fourth Judicial District Rules of Practice as revised October 31, 2025. It is not legal advice about your specific case.