WHAT IS FAMILY LAW MEDIATION?

Mediation is a method of resolving disputes without a contested hearing. In mediation, the parties meet to discuss and solve their problems under the guidance of a qualified and impartial third party, the mediator. The role of the mediator is to assist the parties in reaching an agreement.

Mediation may be entered into voluntarily, with both parties desiring resolution of their dispute outside the courtroom. In Indiana, the court has the power to order parties to mediate their dispute.

The mediator will not advocate for either party, and has no authority to decide the matter. Only the parties may decide how to resolve their dispute. Mediation is not therapy nor is it counseling.

WHO FUNCTIONS AS A MEDIATOR?

Generally, a lawyer or mental health professional with special training and background in both mediation and dissolution of marriage will function as the mediator of disputes arising from a dissolution of marriage or other related family law issues. The mediator’s function is to serve as an impartial facilitator in the parties’ dispute and to guide them toward a resolution.

HOW DOES THE PROCESS WORK?

The nature of the sessions vary somewhat with the personalities of the mediator and the parties, but the structure remains fairly constant. After the parties arrive at a place and time pre-arranged with the mediator, each party may have time to explain his/her view of the events of the mediator in the presence of the other party. Each party should listen courteously and carefully to the other party’s view of the issues.

The mediator may then ask for clarification of specific points, or for a statement of desires and goals of the speaking party. This may be done in the presence of all parties, but may occur in caucus, that is, privately between the speaking party and the mediator. The mediation process is confidential. The reason for clarifying points and stating goals in caucus is to encourage frankness that may be inhibited by the presence of an estranged spouse.

After both parties have spoken, the mediator will assist them in generating multiple alternatives for the resolution of the problem. The mediator assists the parties in refining those alternatives, and then in selecting from among them to provide the parties with a “win/win” resolution of their own design.

The result of successful mediation is an agreement structured by the parties, to which they believe they can adhere. The terms of the agreement are then drawn up in writing, and each receives a copy.

Complete disclosure of all relevant financial information prior to the scheduled mediation is imperative to reaching a successful resolution. Parties who choose to mediate should be prepared to openly and fully discuss all financial issues and to provide supporting documentation. Each party may have a private attorney to advise them during the mediation process and to review any proposed agreements that may result.

WHAT IS THE EFFECT OF AN AGREEMENT?

If all or some of the issues are settled at mediation, and the parties sign off on the agreement, such agreement is binding. Even a mediator’s handwritten agreement (if signed by the parties) is legally binding and can be submitted to the Court.

WHAT IF WE DON’T REACH AGREEMENT?

If an agreement cannot be reached on all issues the parties will go to trial unless a settlement can be negotiated. While confidences disclosed in mediation are not admissible in court, the mediation process (even if not ultimately successful) allows the parties to have a clearer understanding of the strengths and weaknesses of each side of the case.

WHO CAN BENEFIT FROM MEDIATION?

Parties who benefit from mediation include those who want to avoid the cost or delay of a contested hearing, those who want the matter settled privately rather than in open court, and those parties who have a relationship that must continue long after the dissolution.

Successful parties sincerely intend to resolve the dispute in everyone’s best interests, rather than in their own best interests. The parties need not be friendly with each other, but they must be willing to cooperatively find fair resolutions that meet the needs of all family members.

WHEN IS MEDIATION INNAPPROPRIATE?

Mediation is inappropriate where one or both parties come to mediation resolved to inflexibly maintain a position or to solve the problem to suit only individual interests. It is generally not appropriate where there is an obvious power imbalance between the parties, or where one party will not agree to mediation, is likely to file bankruptcy or stands to gain by delay tactics.

Mediation is generally not appropriate where there are allegations of domestic violence, child abuse or neglect, or chemical dependency, unless both parties admit the problem exists and agree to get the necessary professional help outside mediation.

HOW MUCH DOES IT COST?

Mediators generally charge an hourly rate similar to that of other professionals. Many issues can be mediated in a few hours, other issues may require several hours.