Mediation provides a way for parties to work out some or all of the issues involved in their litigation without going to court. During mediation, a neutral third party, called a mediator, works with each party individually and both together to help them reach an agreement on custody. Mediation can save parties time, money, and quite a bit of stress, however, it is not right for everyone. This blog discusses how child custody mediation works, so you can make an informed decision about whether it may work for you.
Mediation is a form of alternative dispute resolution. Family law mediators are attorneys or non-attorneys with a bachelor or advanced degree and have taken at least 40 hours of Indiana supreme court commission for continuing legal education approved domestic relations mediation training (Ind. Alternative Dispute Resolution Rule 2.5(B)). Mediators may choose to register with the commission, which will allow parties to select them as their mediator without prior court approval and the court to designate them along with two other registered mediators for parties to alternately strike a name from the list in order to select a mediator when they have not reached an agreement on who will mediate (Ind. Alternative Dispute Resolution 2.4). Parties with contested child custody issue may agree to attend mediation or the court may order them to. If an agreement on the payment of mediation fees cannot be reached, the court may determine the division of costs (Ind. Alternative Dispute Resolution Rule 2.6).
While there may be some variation between mediators, child custody mediation works nearly the same for all. The mediator will contact both parties to schedule the first mediation conference, which you may attend, either with or without counsel, whichever you prefer (Ind. Alternative Dispute Resolution Rule 2.7(B)(1)). Many participants bring their attorney with them so that they can obtain legal advice concerning any agreement that may be reached. Others attend without counsel in order to save on their legal expenses. Mediation conferences are confidential and are not open to the public, so you should not bring anyone other than your attorney with you unless you have cleared it with your mediator in advance (Ind. Alternative Dispute Resolution Rule 2.7(B)(4)). If you have been the victim of domestic violence, however, you will be allowed to have one person come with you to all mediation conferences in order to provide emotional support (Ind. Alternative Dispute Resolution Rule 2.7(B)(1)).
Before the first mediation conference, parties may submit a confidential statement to the mediator, explaining where you are in negotiations, what laws and facts you have relied on and what factors you have considered when determining the acceptable terms of a settlement agreement (Ind. Alternative Dispute Resolution Rule 2.7(C)). Keep in mind when deciding if you wish to submit a statement that a mediator’s role is quite different from a judge’s. While these confidential statements can help the mediator get up to speed on what the contested issues are and why there is disagreement on those issues, the mediator does not make any decisions for the parties (FindLaw). Mediators do not favor either party and do not give any legal advice. They simply help parents narrow down the issues and then negotiate to find the best solutions (Indiana Judicial Branch).
Although child custody mediation works very well for many parents, there are those who will almost certainly be disappointed with mediation. Negotiating an agreement, with or without a mediator, means that there must be some give and take on the part of both parents. That is what negotiation is. When one party has particular personality traits or suffers from one of a few specific mental illnesses they may be unable to negotiate or unwilling to give up anything to which they feel they are entitled or that you are not. For example, a parent with narcissistic personality disorder or some of the extreme characteristics of a narcissist is not a good candidate for mediation, as they are likely to believe that you have victimized them in some way and to see the mediator as your ally, attempting to victimize them as well. A narcissists entire focus during child custody litigation will be on winning, not on what is best for the child or how to resolve your differences (Psychology Today). They may also wish to prolong the proceedings as much as possible in order to keep you in their life so that they can better control you. A partner who has committed domestic violence against you might also attempt to delay a resolution for the same reason. There are also a few mental illnesses that can cause a person to be unable to understand what mediation is, how to negotiate, or even what is best for the child. If you believe your child’s other parent may fall into the category of those who will not act in good faith during mediation, it may be best not to attempt it unless the court orders you to do so.
For those who do participate in mediation, it is important to know that it is confidential and the mediator cannot disclose information about anything occurring during mediation conferences or contained in statements or evidence submitted to them for the purpose of mediation (Ind. Alternative Dispute Resolution Rule 2.11(A)). Also, because mediation is a settlement negotiation (Ind. Alternative Dispute Resolution Rule 2.11(B)(1)), nothing that occurs or is discussed during a mediation conference is admissible in court as evidence in the child custody proceedings (Ind. R. Evid. 408).
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
