Published in Family Law on July 30, 2019.
Mediation is a form of alternative dispute resolution that allows people involved in a legal dispute to reach consensus on how to settle their disagreement.
Mediation is can be voluntary, meaning that you can always walk away from the mediation table and go to court to have a judge resolve your family law matter.
Though, most counties in Indiana are now requiring mediation in family law disputes which means that it is NOT voluntary and you must attend and negotiate in good faith.
Some people claim you can mediate without an attorney while this is true and a mediator in the room is a neutral third party, he or she does not replace a lawyer. In reality, a lawyer helps enormously with mediation, and you could be harming your case if you don’t have one by your side. Let’s run through the ways a lawyer can help.
An Attorney Can Help You Strategize
You won’t benefit from mediation if you walk in without a clue about what you want. If you do, you can easily agree to something you regret later and end up less satisfied with the entire mediation process.
Mediation, like all negotiation, usually involves give and take. You have to give something up to get something. If you are mediating a divorce, then you might want your children with you on Christmas and their birthdays.
You might not be able to get both, so you need to know ahead of time which is more important to you. You also need to know what the law presumes in each of those cases.
You also need some sense of what a judge would give you if you went to court. This is the alternative to resolving your dispute using mediation. If you think a judge award you Christmas and your children’s birthdays every year you might not reach an otherwise beneficial agreement in order to go to court. The Court is not likely to order to such a parenting time schedule, so meet with a lawyer who can provide this type of analysis.
A Lawyer Can Advise You during Mediation
Mediation is negotiation, with each side making proposals to the other. The only difference is that mediation includes the presence of a mediator to facilitate and filter the negotiations
Your attorney’s role in mediation is not to make an impassioned speech in front of the mediator. Remember, a mediator is not a judge and he or she does not pick a winner.
So your attorney is not going to be focused on convincing the mediator of anything. Instead, your attorney will help advise you of whether the offer on the table is a good deal and what your counteroffer should be. The attorney can also help provide the information to “sell” your offer to the other side and work with their lawyer to analyze their case.
An attorney can also speak for you in mediation if you feel uncomfortable expressing yourself or if you are intimidated by the other side. This can be a big help. In most cases, the parties are not in the same room so that the parties are more comfortable speaking openly.
A Lawyer Can Help You Choose a Mediator
There are hundreds of mediators to choose from in Indiana. A mediator is usually a lawyer who has taken specialized training in mediation and offers their services to the public, though not always are mediators also lawyers. Not all mediators are the same, and your lawyer can help you identify which mediator to choose.
For example, some mediators are more experienced in divorce with children while others may be well versed in the division of closely held companies. You will want a mediator who understands the ins and outs of the area of law you are dealing with. Without a lawyer’s help, you might just go ahead with the mediator chosen by the other side, who could be inexperienced in the area you need.
A lawyer can also help you negotiate who will pay for the mediator. It is common for each side to pay 50/50, but if you are not earning much money relative to the other side or have given in other areas, the lawyer can assist in negotiating this as well.
Only a Lawyer is Looking Out for Your Best Interests
One misconception is that the mediator will look out for your interests and make sure you are not being taken advantage of. The problem is that the mediator is strictly neutral, meaning he or she doesn’t take sides. The mediator might also not really know the details of your case, so the mediator doesn’t know whether the deal being offered is a good one for you.
In the end, the mediator’s client is an agreement. If they get an agreement then the mediator has done their job regardless of whether or not the agreement actually serves your interests.
A Lawyer Signals You Mean Business
If the other side has an attorneyrepresenting them, then you might be intimidated to give voice to what you really want. The lawyers for the other side might also suspect that they can get you to agree to something less than what you’d like because you don’t know what is actually available to you. .
However, having a lawyer by your side sends a signal that you won’t be taken advantage of. Instead, you intend to balance the playing field. Attorneys on the other side will listen more closely to what you have to say, and more likely to negotiate in good faith.
Contact an Indiana Mediation Attorney Today
If you want to resolve a family law dispute without going into court, contact Eskew Law. We have participated in countless domestic relations mediation sessions and can help prepare you for what to expect. We will also carefully analyze your case so you understand your best options, including getting up from the negotiating table and marching into court to pursue your interests.
Contact us today. We will happily meet for a confidential consultation where you can discuss mediation and anything else relevant to your case.