Mont. Code Ann. » TITLE 40. FAMILY LAW · CHAPTER 4. TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT · Part 3. Family Law Mediation
Montana Code Annotated

Mont. Code Ann. § 40-4-301 (2026)

Family Law Mediation -- Exception

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  1. MCA Contents
  2. TITLE 40
  3. CHAPTER 4
  4. Part 3
  5. 40-4-301 Family law mediation -- exception

TITLE 40. FAMILY LAW

CHAPTER 4. TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT

Part 3. Family Law Mediation

Family Law Mediation -- Exception

40-4-301. Family law mediation -- exception. (1) 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. Any party may request the court to order mediation. If the parties agree to mediation, the court may require the attendance of the parties or the representatives of the parties with authority to settle the case at the mediation sessions.

(2) Unless each of the parties provides written, informed consent, the court may not authorize or permit continuation of mediated negotiations if the court has reason to suspect that one of the parties or a child of a party has been physically, sexually, or emotionally abused by the other party. A mediation conducted under this subsection may be conducted by a mediator who is trained in mediating domestic violence cases.

(3) The court shall appoint a mediator from the list maintained pursuant to 40-4-306. By agreement of all parties, mediators not on the list may be appointed.

(4) The court may adopt rules to implement this part.

(5) For purposes of this section, "informed consent" means an educated, competent, and voluntary choice to enter into mediation.

History: En. Sec. 1, Ch. 199, L. 1993; amd. Sec. 2, Ch. 350, L. 2013.

Notes of Decisions
Cited in 6 cases (2 in the last 5 years), 1995–2023 · leading case: Hendershott v. Westphal, 2011 MT 73, 253 P.3d 806.
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Hendershott v. Westphal, 2011 MT 73, 253 P.3d 806. · cites it 41× “DISCUSSION ¶20 This case requires the interpretation of §40-4-301, MCA, a matter of first impression for our Court.”
Parenting of P.H.R. & P.H.R., 2021 MT 231, 495 P.3d 38. · cites it 12× “” She argues that the District Court’s noted “concerns” about domestic violence were sufficient to trigger the “reasonable suspicion” standard under 9 § 40-4-301(2), MCA, and Hendershott. Sarah thus contends that the parties should not be required to mediate absent their consent.”
In re the Marriage of Brockington & Brown, 2017 MT 92, 400 P.3d 205. · cites it 2× “See § 40-4-205, MCA, and §§ 40-4-301 to -308, MCA. ¶26 Based on the foregoing principles, it is clear that the duty of a guardian ad litem to represent the interests of the child is inconsistent with the obligation of a mediator to be impartial and free from favoritism or bias,…”
Marriage of Okland, 2023 MT 127N, 531 P.3d 597. · cites it 2× “” The court also found there to be “no credible evidence, acquired since the mediation, that Christopher abused Andrea within the meaning of [§ 40-4-301(2), MCA.]” Andrea has not specifically appealed this April 22, 2021 Order.”
Marriage of Brockington, 2017 MT 92. “See § 40-4-205, MCA, and §§ 40-4-301 to -308, MCA. ¶26 Based on the foregoing principles, it is clear that the duty of a guardian ad litem to represent the interests of the child is inconsistent with the obligation of a mediator to be impartial and free from favoritism or bias,…”
Marriage of Roberts, No. 95-108 (Mont. Dec. 5, 1995). “Patricia held in contempt for violating the visitation order, to have the children interviewed in chambers regarding custody, to have the court seek advice from a professional person pursuant to § 40-4-214(2), MCA, for an investigation and report concerning the 4 custody of the…”
Mont. Code Ann. § 40-4-301(1): 1 case
Hendershott v. Westphal, 2011 MT 73, 253 P.3d 806. “DISCUSSION ¶20 This case requires the interpretation of §40-4-301, MCA, a matter of first impression for our Court.”
Mont. Code Ann. § 40-4-301(2): 3 cases
Hendershott v. Westphal, 2011 MT 73, 253 P.3d 806. “DISCUSSION ¶20 This case requires the interpretation of §40-4-301, MCA, a matter of first impression for our Court.”
Parenting of P.H.R. & P.H.R., 2021 MT 231, 495 P.3d 38. “” She argues that the District Court’s noted “concerns” about domestic violence were sufficient to trigger the “reasonable suspicion” standard under 9 § 40-4-301(2), MCA, and Hendershott. Sarah thus contends that the parties should not be required to mediate absent their consent.”
Marriage of Okland, 2023 MT 127N, 531 P.3d 597. “” The court also found there to be “no credible evidence, acquired since the mediation, that Christopher abused Andrea within the meaning of [§ 40-4-301(2), MCA.]” Andrea has not specifically appealed this April 22, 2021 Order.”
Mont. Code Ann. § 40-4-301(5): 1 case
Parenting of P.H.R. & P.H.R., 2021 MT 231, 495 P.3d 38. “” She argues that the District Court’s noted “concerns” about domestic violence were sufficient to trigger the “reasonable suspicion” standard under 9 § 40-4-301(2), MCA, and Hendershott. Sarah thus contends that the parties should not be required to mediate absent their consent.”
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