By Erica V. Speraw, Attorney
Mediation is a process that allows a couple to craft their own divorce agreement. It involves an impartial third party, the mediator, who facilitates communication between the two sides. The mediator’s role is to assist the parties in understanding each other’s respective positions in order to reach a mutually acceptable solution without going to trial.
The intent of mediation is to promote a more amicable settlement to a pending divorce. The process is especially beneficial for parents who will continue making decisions together about their children.
Typically, during mediation, the parties are placed in separate rooms with their respective lawyers. The mediator then takes time talking privately with each side. However, some mediators do like to have both parties meet in one room briefly at the onset of the mediation to discuss the procedure and expectations.
It is not the mediator’s duty to determine who is right and who is wrong. The mediator is there solely to guide the process and facilitate discussion. The mediator has no authority to impose settlement on the parties.
There is little to lose in agreeing to mediate family law issues. In fact, in many Indiana counties, local rules require mediation prior to setting the matter for trial.
There are four main benefits of mediation.
- Mediation provides certainty. That is, you and your spouse control the process; the Court does not. If you and your spouse are unable to reach a final agreement as to property division and issues regarding children, the other option is to proceed to trial. At trial, a Judge, who is not familiar with you and your family, can make significant decisions impacting your lives based on the limited amount of evidence that can be placed in front of them. This is because of evidence rules. On the other hand, mediation allows you to attain a resolution centered on your own opinion of what is fair in your specific situation, rather than having a situation compelled on you.
- Mediation is confidential. There is no risk in sitting down and attempting to hammer out a solution that works for you and your family. Everything discussed during a mediation session is confidential unless the mediator is given direct permission to disclose certain information to the other party. Additionally, the rules of evidence preclude the content of settlement negotiations from being addressed in front of the Judge. So, if despite your best efforts, you and your spouse are unable to reach an agreement at mediation, there is no worry that your spouse will introduce evidence of previous offers during trial.
- Mediation is more cost efficient than proceeding to trial. The formalities required to adequately prepare for trial can be quite time consuming and expensive. Mediation also requires preparation but given the fact that it is less formal by nature than a trial, the preparation cost is considerably less. Additionally, couples who are able to be reasonable with one another and reach an agreement in mediation typically also end up in Court less often after the divorce is finalized. In most cases, it is much more palatable for people to abide by agreements they crafted themselves and in turn, fewer problems typically arise post-divorce. Therefore, mediation usually saves the couple money both during the dissolution process and after the divorce is final.
- The decision-making process demonstrated in mediation can serve as a model for future communications. This is especially helpful when children are involved. We know life is never static and situations change. The agreements you make when your children are young will likely have to be modified to suit their lives as they grow. Additionally, some level of interaction between the couple will likely continue even after the child is an adult. For example, there will be special occasions that both parties are likely to attend such as graduations, weddings, grand-children’s birthdays and funerals. Starting off on the right foot with accomplishing a reasonable settlement agreement in mediation goes a long way in promoting healthy interactions in the future.
Mediation may not always work. That is why we believe that a key to obtaining a reasonable settlement at mediation for our client is to make clear that we are ready, willing and able to try the case in Court.
No one wants to end a marriage with a trial that can be costly, time consuming and hurtful to all involved. We also understand and appreciate the fact that settling the matter in front of a judge may not be in the best interest of our client and their family. While a trial may be necessary in some cases, a more cordial and collaborative process may reduce stress, lower expenses and lead to better results.
At Halpin Slagh, we believe in the potential benefits of mediation. Contact us to discuss how mediation can work for you.