By Christopher J. Barrows

The resolution of family law issues is not accomplished only through judicial decree. Many, indeed most, cases are handled through negotiated settlement. One method of non-judicial resolution is mediation. In Indiana many Courts and Judges encourage mediation in order to prevent the court calendars from becoming too congested. Further, in some cases mediation is required or may be court ordered.

Parties involved in litigation are more likely to be satisfied with the results of a settlement, mediated or otherwise, than a Court order. Settlement of a case allows each party to maintain some control over his/her future. Mediation allows the people who know the most about their lives to resolve with compromise the issues between them.

What is Mediation?

Simply put mediation is the settlement of a dispute with the aid of a neutral party. The neutral party can be an attorney, counselor, trusted family member or friend. However, more formal or court ordered mediation usually involves a trained mediator, the parties, and each party's attorney. Mediation may be sought before an attorney is retained, after the attorney is selected, or at any point during the representation.

The mediator does not make decisions for either party, and can only help with reaching settlement. The ultimate decision to settle or not settle still rests with the parties. Mediation may result in only a partial settlement of the case (i.e. division of assets but no determination of custody). In such an instance it is possible to re-schedule another mediation session, or proceed to a contested evidentiary hearing on the unresolved issues.

The mediator is paid by the parties, usually equally. A contract for the mediator's services is usually signed before any mediation session. The sessions vary depending on the mediator's style. Some involve an open session with all parties meeting in the same room. Others involve the mediator meeting with both sides in separate rooms. Sometimes a combination of this procedure is used. The time set aside may also vary from long sessions ending only with an agreement or an impasse to limited, numerous, short sessions of one to four hours.

If a settlement is reached, then it is put in writing, with both sides signing the agreement. That agreement is then presented to the Court as either a partial settlement, or full settlement. This document can be made a court order if the attorneys are unable to convert the mediated agreement into a decree.

Why should I Settle or Mediate?

Settlement may not sound like a satisfying resolution when there are emotional issues involved. However, mediation is often more flexible than a Court judgment, which can sometimes be rigid and difficult to implement in situations where the parties need to continue communicating and making decisions past the date of the decree. This may be important when addressing custody, child support, and visitation issues.

Mediation might also allow for options that neither party even knows exists. And, if children are involved, mediation may help alleviate some of the friction between parents who will continue to have a relationship even after they are divorced.

Finally, if you have already contacted an attorney, you are aware that any lawsuit, including divorce, is expensive. Often, mediation can achieve a settlement, more quickly and with less expense than a drawn out legal battle. It is often easier to schedule mediation than it is to obtain a quick trial date. And even if mediation results in a partial settlement, resolution of some of the case will limit the time necessary to present evidence to a Judge. In the long run, it will probably be less expensive to resolve some of the case by mediation, than to pay an attorney to present evidence on issues which could be agreed upon with communication, understanding and compromise which are the elements of mediation.

What Mediation Cannot Do

Mediation is not to punish the other party. Mediation should not be used when one party is attempting to stall the divorce process, or raise the expense of the divorce process. Mediation may not be appropriate in cases where there is domestic violence or spousal abuse. Also mediation agreements may not be enforceable against your spouse until approved by a Court, and therefore agreements reached in mediation need to be filed with the Court, and only then do they become a court order.

Ultimately, the decision to settle or mediate is yours. While mediation may be court ordered, resolution can only be accomplished by parties willing to compromise and agree. But as discussed above, a partial agreement may be better than leaving every aspect of your future in the hands of a Judge.