Lawsuits between businesses are complicated, costly, and stressful. But when the issue is divorce, custody, or parenting time, the stress is magnified exponentially. Mediation can alleviate some of the strain—if it’s done right. The attorneys of McKinney & Malapit Law are here to walk you through the tumultuous family law experience.
What Is Mediation?
Mediation is one of the many types of Alternative Dispute Resolution (ADR) options available to courts and litigants. Each form of ADR stresses its own points of emphases, and the form of ADR appropriate for business are rarely suitable in a family law setting.
ADR options utilized most often in family law cases include collaborative law, cooperative law, parenting coordination, and mediation. Collaborative and cooperative law involve each party hiring their own attorney but agreeing to work together in order to minimize the conflict (and so the cost and stress) of the issue, usually divorce. The goal of parenting coordination is to immediately resolve issues as they arise in ongoing, high-conflict cases without waiting weeks or months for a court hearing. Mediation places the power of resolution back in the hands of the parties and may be used to seek to decide any family law issue. But the approach to mediation must be well intentioned.
Mediation is only as useful as the parties and their attorneys allow it to be. Effective mediation occurs when the litigants approach the meetings not only with an open mind, but more importantly with a genuine commitment to reducing the conflict between the parties. And that is a difficult task for anyone involved in a family law dispute.
Approaching mediation with an attitude of cooperation is challenging, especially within a family law setting, because the judicial system is purposefully set up to be adversarial. Each party’s attorney is schooled and trained to fight for the rights of their clients, to win on every issue possible. And that word—“win”—is itself problematic. Once it’s adopted as an attitude, it can derail family law cases. Litigants find themselves focused more on “winning” the suit than figuring out what is best for them or their children. The best attorneys will tell you that while litigation is often necessary, rarely does someone truly win at the end of the day. A skilled mediator can help both parties navigate the emotional minefield that is family law and work toward a solution that is in everyone’s interests. But how do you know if mediation is right for you?
Ex-spouses or parents do not find themselves facing litigation because things are going well; there is a disagreement that must be resolved. Many people view mediation in the family law world with disdain. Often, fighting parties will think, “If we could work this out on our own, we wouldn’t need to be in court. So what good is mediation?” And while that may be true, parties at mediation are not left to their own devices to work it out on their own.
Family law mediation is led by a person skilled in family law and dispute resolution. That may be an attorney, but it isn’t always. The mediator will work with the parties and, if they are represented, their attorneys. Traditionally, many family law mediators follow the procedure used by mediators in other types of litigation: Party A is in one room, Party B is in another; the mediator goes back and forth facilitating a dialog and working toward a solution agreeable by everyone. In this type of mediation, the parties are never in the same room and do not talk directly to one another. This procedure is used by many family law mediators, but it still sets a tone of discord and distrust. So some mediators, including the ones at McKinney & Malapit Law, are using a different approach.
We subscribe to a newer school of thought for family law mediation that places the parties in the same room, and sometimes even on the same couch, as the mediator assists them in discussing their issues in respectful discourse. Skilled mediators use this approach to separate the mediation setting from the conflict-promoting court setting. Not only does this help the parties work through the issue at hand, it teaches them how to resolve future issues on their own. But this type of structure is not appropriate in all cases.
While skilled mediators can overcome disagreements and conflict among parties, it would be inappropriate to use the shared space format when there is a history of domestic violence, abuse, or related criminal behavior.
Once the parties reach an agreement, the mediator will write all the terms of the arrangement into a proposed order. Then either the mediator or the parties will submit that settlement to the court for the judge’s consideration. Once the judge signs the agreement, the terms become an enforceable order of the court.
Benefits of Mediation
The costs of mediation are usually shared by the parties, but this can be negotiated. All parties have the right to hire their own private attorney who will work for only their client’s interest. But employing private counsel is not necessary. Because the family law mediator is hired by both parties, the mediator works to find a resolution for the benefit of all and will not favor one party over the other.
Hiring a skilled family law mediator places the power to control the outcome of your case back in your hands. It can allow you to resolve your case on your timeline, can reduce your legal fees, and, probably most importantly, lessen your stress.
The attorneys of McKinney & Malapit Law are here to help you navigate the strains of family law issues. If you think family law mediation is right for you, request a consultation.
Ryan L. Groves is a partner at McKinney and Malapit Law who focuses his practice in the areas of Family, Estate, and Trust Law, providing clients transactional, litigation, and mediation services. Ryan is a Certified Family Law Mediator. He graduated from Indiana University with a BS in Microbiology and from the Dedman School of Law at Southern Methodist University. He is admitted to practice in the State of Indiana; the Northern and Southern Districts of the Federal Courts; and before the United States Patent and Trademark Office.
McKinney & Malapit Law is a general practice firm serving all of Indiana out of its Fishers and Muncie offices.
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