Mediation as an Alternative to Litigation
Appearing in front of a judge to discuss personal matters such as the deterioration of a marriage, assets, debts or children can cause a lot of emotional stress for most people. There are several different types of Alternative Dispute Resolution methods in Indiana. These alternative ways to resolve matters can allow parties to resolve matters outside of the traditional courtroom.
Mediation is the most commonly used method of Alternative Dispute Resolution in family law matters. “Mediation is a process in which a neutral third person, called a mediator, acts to encourage and to assist in the resolution of a dispute between two (2) or more parties. This is an informal and nonadversarial process. The objective is to help the disputing parties reach a mutually acceptable agreement between or among themselves on all or any part of the issues in dispute. Decision-making authority rests with the parties, not the mediator. The mediator assists the parties in identifying issues, fostering joint problem-solving, exploring settlement alternatives, and in other ways consistent with these activities.” (Indiana Rules of Court, Rule 1.3(A)).
The actual mediation process can vary depending on the subject matter of the case, the demeanor of the parties, whether there are attorneys involved and the preference of the mediator. It is possible to attend mediation without legal representation. It is important to understand that even if the mediator has legal training, he or she does would not provide legal representation to either party. In some situations, the parties will be together in one room with the mediator moderating the conversation. In other cases, the mediator will go between the different rooms and have discussions with the parties individually. The understanding is the mediator can share information freely between rooms in an effort to help the parties come together on their positions and reach an agreement.
An agreement that is reached during mediation is signed by all parties and their attorneys if they are represented. The agreement is filed with the court. Once the judge approves the agreement, it is as enforceable as an order that came straight from the judge after a hearing. All of the same remedies are available if one party fails to comply with their obligations in the agreement.
An advantage of mediation is the parties have more of a voice on the final resolution. If the issue at dispute is parenting time, the final order of the court may not be practical for the parents and children. While the courts do their best to consider all factors, they are only provided with a small portion of the information needed to determine what is in the best interests of the children. In mediation, the parties can take their time to create calendars and a schedule that would best accommodate everyone. The same is true for special holidays or family traditions. The Indiana Parenting Time Guidelines divide the holidays equally between the parents on a rotating basis. Perhaps one parent has a family tradition for the same day every year while the other parent does not celebrate that holiday at all. In mediation, the parties could work out a trade with each parent always receiving a day that is important to their traditions.
Rather than spending time and money negotiating with the other side in advance of a hearing, all of the information is brought to the table at a set time and place for resolution. While there are still tasks that need to be completed to ensure everyone is prepared for mediation, the costs of resolving a matter can be reduced when the costs of a hearing are eliminated. In the event the parties are unable to reach an agreement on all matters at mediation, the traditional progression for a case is still available and the matter can proceed to court. If an agreement is reached on most, but not all issues, it is possible to ask the court to hear only the contested issues.
If you think that you may have a case where mediation would be beneficial, Banks & Brower, LLC can help. Joni Sedberry is a Registered Domestic Relations Mediator. She can assist you if you would like to schedule a mediation with or without attorneys or if you need legal representation during a mediation. Give us a call 24/7/365 at (317) 870-0019, or email us at info@banksbrower.com.