About a decade ago, mediation began to take hold in Indiana. It was so successful, the Indiana Supreme Court allowed trial courts to order parties to mediate their divorce case before setting a final contested divorce hearing on a congested court docket. Most trial courts were receptive to it.1 Attorneys also grew to like the process over the former model of a trial, because the parties could reach an agreement of their own accord versus having a court take control and decide.
If you face mediation in your case, there are several things you can do to make the most of this time and avoid a contested trial. You should embrace the idea, but also understand a successful mediation begins long before the mediation itself. Here is how you can help your attorney help you:
The place to begin is to help your attorney understand all of the assets and liabilities in your case, how you want them divided, and why. About every family law attorney has learned of some [car, bank account, debt] ______ (fill in the blank) late in representation, or in mediation. Mediation is not the place to spend time (and money) trying to determine account balances, if X loan is paid off, and what is the car is worth. Mediation is the place to try to work out differences with a neutral mediator who sees and hears both sides.
Understand too a domestic attorney (as can be the case in court) needs to play devil’s advocate with you about what you want versus reality under the law. If these two pieces of the divorce puzzle are not worked out before the mediation, it increases the chance the case will not settle or some other avoidable negative outcome will occur.
Where there are minor children, you should fully understand the legal concepts and presumptions regarding physical and legal custody, parenting time, and child support. If you do not, the mediation may pass with you educating yourself about these matters. This requires much advanced preparation by you, such as determining incomes, how parenting time could (or could not) work, and the like.
Ultimately, mediation is a valuable way to resolve your case. However, it is not the place where you should begin thinking about what you want in your best day in court or trying to educate your attorney about the details of your case. This should have already been done so the parties can spend their time with a mediator trying to reach an agreement within the parameters of the law. This blog post was written by attorneys at Dixon & Moseley, P.C., attorneys serving divorcing parents throughout the State of Indiana.