Couples who are unable to agree on custody and parenting time may choose to attend mediation, or the court may order them to mediation. During mediation, a third party mediator attempts to help the couple reach an agreement on all custody and parenting time issues possible. This can make things less stressful than going to court, as it is an informal setting where amicable conversations are held and no decision made to which both parties do not agree. This blog discusses how mediation can influence child custody decisions in Indiana and what a parent can expect from mediation.
Once the court orders mediation, the parties have seven days to agree on a mediator registered with the Commission for Continuing Legal Education, or agree on a non-registered mediator and ask for court approval of the selected mediator. If the parties do not agree on a mediator within seven days, the court will create a list of three registered mediators who are willing to mediate the case. Each party, beginning with the one who initiated the lawsuit will alternatively strike one name from the list. The remaining mediator will be deemed the selected mediator (Ind. R. Alter. Disp. Res. 2.4). Payment of mediation costs can be agreed upon by the parties or left to the court to divide between them. Normally, if one of the parties requested that mediation to be ordered, that party will be ordered to pay the full amount. However, the costs can be divided equally between the parties, based on the percentage of the total income they earn. Some counties have Alternative Dispute Resolution Programs that can help pay for mediation for families who cannot afford the cost (Office of Court Services).
The mediator will assist the parties in defining the issues and attempting to reach an agreement on any unresolved matters concerning custody and parenting time. A mediator only facilitates the parties’ negotiations, and does not have any authority to make rulings or issue orders (Indiana Association of Mediators). Parties may have their attorneys present or choose to attend without counsel. Mediation conferences may differ according to how the chosen mediator normally conducts a session. The entire mediation session may be run as a group, with all parties present, or the mediator may meet with each party privately at some point during the session. If an agreement is reached, the mediator will prepare the necessary documents, collect the signatures of the parties, and file the agreement and other required documents with the court (Ind. R. Alter. Disp. Res. 2.7(F)). Mediation is confidential, and nothing said or done during a mediation conference can be used against a party in court (Ind. R. Alter. Disp. Res. 2.11).
For parties still concerned that attending mediation can harm their case, it is important to note that mediation is a negotiation, and negotiations in a civil suit are not admissible under Indiana Evidence Rule 408(A)(2), which provides: “Evidence of the following is not admissible on behalf of any party either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction… (2) conduct or a statement made during compromise negotiations about the claim. Compromise negotiations include alternative dispute resolution.” Because mediation is a type of alternative dispute resolution, this rule applies to all mediation sessions (Indiana Judicial Branch).
Mediation is a non-adversarial way of resolving issues without court intervention. Mediators are trained to listen to both parties and ensure that each is hearing and understanding the other. They may start by narrowing down the issues and restating them in a way that allows the parties to understand the problem so that they can work together to find a solution. A mediator is a neutral third party there to facilitate a productive conversation between you and your child’s other parent (Self-Service Legal Center). Having someone who is not on anyone’s “side” helps many parents stop trying to “win” and instead, look for solutions so that an agreement that is in the best interests of the child can be reached. Ugo Uche, a Licensed Professional Counselor, has three rules for parents attending mediation: 1. No one cares. Unless your spouse has abused the child in some way, describing their flaws to the mediator is simply a waste of everyone’s time and can discredit you in the end. 2. The child’s needs come first. Having little or no contact with a parent can emotionally harm a child. Think about how that would have felt to you when you were a child. 3. Be careful of the rules you propose. They could come back to bite you (Psychology Today).
Mediation does not work for everyone, but for most parents, it may be worth trying. The informal, non-adversarial atmosphere and trained mediator can help turn a custody battle into a parenting plan both parents are happy with and is focused on the best interests of the child. It can influence child custody decisions made by both parents while working with the mediator to come to an agreement. If no agreement can be reached, it will not influence any custody determination made by the court, as mediation is confidential and neither parties behavior or anything they say can be used against them in court.
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.