Published in Family Law on July 20, 2019.
Not every divorce needs to be a TV soap opera. Instead, a couple can jointly decide the terms of their divorce, including such issues as child support, child custody, alimony, and the division of marital property.
Unfortunately, many couples cannot stand to even be in the same room with each other. Other couples are still fighting battles from long ago.
Coming together to negotiate a settlement can be difficult in these circumstances, which means the couple will probably end up before a judge, who will decide the terms of their divorce.
This is where mediation comes in. Mediation has helped many Indiana couples find common ground and speed up the divorce process. If this is something you are interested in, you should talk about it with an Indiana divorce lawyer at Eskew Law. We are only a phone call away.
What Is Mediation?
Mediation is a form of alternative dispute resolution that allows couples to resolve their disputes outside the courtroom. With mediation, a couple and their attorneys meet with a mediator, who is a neutral third party.
At the outset, we should clear up what a mediator does not do. The mediator is not a judge, and he or she does not decide which side “wins” the dispute. Instead, the mediator helps the couple work through their differences in the hopes that they can reach an amicable agreement.
A mediator is skilled at really listening to people describe the issues they disagree on. Some men and women express surprise during a mediation session when they realize that they only disagree on a few issues. A mediator can pare away inessential issues and help all parties focus on the real roadblocks.
A mediator also can offer creative solutions to problems. For example, both spouses might want the house. However, the mediator might propose that the couple sell the house and split the proceeds, which will allow them to live where they want after the divorce. Of course, a couple can always reject a mediator’s suggestions and walk away if they cannot find common ground.
Is Mediation Required?
Some counties will require a couple to attend mediation. Again, attendance is required but a mediator cannot force a particular resolution onto either side. You will always be able to get up from the mediation table and head to court, if you want.
How Do You Find a Mediator?
If the court requires mediation, then the courthouse might have a list of mediators you can choose from. You can also search online for an Indiana divorce mediator. Most mediators are lawyers who have taken special mediation training.
You will also need to discuss how to pay for the mediator, who likely charges by the hour. You and your spouse can agree to split the cost, or one of you can pay most or all of the mediation expenses.
How Can You Make Mediation Successful?
The couples who get the most out of mediation are those who go into it prepared to negotiate in good faith. In other words, mediation typically involves giving up something to get something. If you have hard boundaries and refuse to compromise, then you will be unhappy because mediation is not designed for one person to get everything they want.
Realize, however, that you might not get everything you want if you go before a judge. A judge can decide the dispute any way he or she wants, and it is very hard to get their decision overturned on appeal. So by participating in mediation, you can often gain more control over the details of your divorce than you can in divorce court though you are likely giving up the ability to appeal the agreement.
Mediation will also not be successful if you have no idea what you want when going into the negotiation room. Before mediation, you should meet with your lawyer to strategize. You might come up with a list of non-negotiables, such as minimum parenting time with your children or a certain piece of marital property. Then you can identify things that are less important to you.
Should Anyone Refuse to Participate in Indiana Divorce Mediation?
If the judge orders you to mediation, you need to go. However, if it is your decision whether to participate, you might decline in some situations:
● You only want to use mediation as a form of therapy. Nobody benefits if all you do is “vent” during a mediation session. Now is not the time to revisit why your marriage failed, and the mediator’s job is not to decide who is to blame for the divorce. And, there are better individuals to whom you should vent than lawyers. We’re not particularly good at psychoanalysis and coping.
● Some individuals might be concerned for their safety at mediation because of the other party. That said, there are things that can be done for safety to alleviate (not elliminate) that concern.
In our experience, most couples would benefit from at least attempting mediation. You might not reach an agreement on all issues, but if you can agree to a few, then your divorce can go much faster.
Can Mediation Negatively Affect My Divorce?
It shouldn’t. Anything you say in a mediation conference will remain confidential. This means your statements can’t be used against you if you end up having a contested hearing. This confidentiality should promote clear and honest communication between the spouses.
You should also have a lawyer there with you. The mediator’s job is not to be an advocate for you, your lawyer is. However, your lawyer can also help you express what you want and can advise you about whether to accept or reject an offer made by your spouse or help you weigh an offer against the possible outcomes were the matter to go to court. In other words, a divorce lawyer is more of a legal counselor in the mediation room than the type of advocate they would be before a judge.
Contact Eskew Law Today
As both mediators and attorneys many of our clients report high satisfaction with the outcome of their divorce mediation. Successful mediation sets the stage for ex-spouses to communicate and work effectively together in the years after their divorce is finalized.
If you have a question about divorce or about Indiana divorce mediation, please contact us today. The divorce lawyers at Eskew Law have handled many types of divorces and understand how to navigate the process.
Contact us today to set up an initial consultation.