FAQ About Domestic Mediation
What exactly is domestic mediation?
Domestic mediation is a process for helping families resolve disputes. It is voluntary, confidential, and non-adversarial. It is not a court proceeding and does not compromise your legal rights.
In Indiana, divorce mediation is a structured process in which an impartial, professionally-trained domestic mediator who is registered with the Indiana Supreme Court meets with the parties involved in a dispute and assists them in reaching a solution that is mutually agreeable. In domestic mediation, decision making authority rests entirely with the parties. The process of divorce mediation encourages the parties to discuss difficult situations and explore creative options to resolve the disagreement.
Most domestic mediations begin with a joint session of all the parties and, if any, their representatives. The mediator makes introductions, reviews the process, discusses ground rules and gives each side an opportunity to describe the dispute. Following this opening session, the mediator may choose to split the parties into separate groups and meet with each side privately. These private sessions are often referred to as caucuses. The parties may choose to have their attorneys or other persons present, but in many cases, counsel may not need to attend a mediation. If a party wishes to bring someone other than their attorney to a mediation, the consent of the other party will be required.
The objective of mediation is to help the disputing parties reach a solution agreeable to both parties. The mediator assists the parties in identifying issues and fostering joint problem-solving. The mediator, then, is the facilitator, the person who helps disputing parties come to an agreement.
Source: https://mediation-indiana.org/what-is-mediation/
Does mediation really work?
Yes, mediation works. In fact, it works quite well, assuming that all parties to the dispute are willing to act in good faith. In the state of Indiana, less than 5% of domestic disputes brought to mediation end up without an agreement. Another 5% of domestic disputes resolve nearly all of the issues in dispute while approximately 90% of domestic disputes brought to mediation end up with all issues being resolved to the satisfaction of all the parties. Of course, each dispute is unique and the mediation process may not be suitable for all disputes.
The GSW Mediation (GSWM) mediator is highly trained in alternative dispute resolution techniques and issues surrounding the most common types of domestic disputes such as divorce, child custody, child support, parenting time and paternity. In addition, the GSWM domestic mediator is registered with the Indiana Supreme Court and, therefore, authorized to act as a neutral mediator in domestic disputes and is required to perform those duties while meeting high ethical and professional standards set forth in Indiana State Statute. In other words, it is the law that a registered domestic mediator has to provide services in accordance with those statues or face penalties and be removed from the Indiana Supreme Court Registry of Mediators.
Families can seek out a registered domestic mediator on their own rather than hiring attorneys and going to court or they may be ordered to engage in the mediation process with a registered domestic mediator by the judge in an effort to reach an agreement without having to go through the costly and time-consuming process of resolving their dispute in court.
What is the goal of domestic mediation?
The goal of the domestic mediation as offered by GSWM is to enable the parties to cooperate and arrive at mutually acceptable agreements of their own making. In a court case or arbitration, a judge or arbitrator determines the outcome. Sometimes that decision is handed down without significant input from the parties involved. However, the role of the domestic mediator is to facilitate a dialogue that allows both parties to safely express their needs and values and help them come to a satisfactory resolution. The mediator does not determine the outcome of the mediation, the family members do.
What exactly does a domestic mediator do?
The domestic mediator acts as a facilitator and sometimes as a “go between” to assist family members address the specifics of the domestic dispute and arrive at solutions/agreements that are fair and equitable to the parties as well as any minor children. The domestic mediator does not decide the outcome of the dispute resolution, the family members do. Emotions can and do get in the way of solving disputes in a manner acceptable and equitable to all parties. The domestic mediator is a neutral, assisting the parties to develop an agreement that is based in logic, common sense and the legal guidelines rather than emotion and distrust.
The GSWM domestic mediator is not an attorney and, therefore, cannot give legal advice. However, he can provide family members with legal information and/or direct them to sources of legal information. In addition, the GSWM domestic mediator can and will advise clients to seek legal advice from a licensed attorney or to seek the services of other professionals such as therapists, financial advisors, realtors, business evaluators, etc., if the specific issues of their dispute warrant it.
Furthermore, the GSWM domestic mediator is not a family or marriage counselor. The goal of mediation is to resolve any and all domestic disputes and assist the family members in developing a plan for moving forward in their lives and effectively function in a co-parenting relationship (if applicable) that works for the best interest of their child(ren).
Is there anything I need to do in order to prepare for domestic mediation?
The specifics of what you need to do before you actually begin the domestic mediation process will be explained in detail during the free pre-mediation consultation that is offered by GSWM. However, in general, the more “homework” you can do before and during the mediation process the less time and money will be spent on the actual face-to-face mediation.
Nearly all domestic disputes has some sort of a financial facet to them. Therefore, if all parties to the dispute will provide the domestic mediator with documents that verify income, assets, liabilities, expenses, etc., the focus of the mediation sessions can be on resolving disputes rather than bickering over verifiable facts.
Parties who decide to engage in the domestic mediation process with GSWM will be asked to fill out a confidential questionnaire about disputed issues, areas of agreement, family history, information about children, short term/long term plans, expectations and concerns. The more information that the domestic mediator has prior to the beginning of mediation, the better he is able to identify the issues that need to be prioritized during the mediation process. After all, if the parties to the mediation are in agreement on some issues, those issues need to be quickly added to the written dispute resolution agreement and then the majority of the time spent on resolving the issues where there is not an immediate agreement. Less time spent means less money spent and the sooner the parties can move on with their lives.
Is domestic mediation confidential?
Except for child abuse/neglect, spousal abuse or the commission of a crime in the presence of the mediator, everything discussed or disclosed during domestic mediation is covered by an enforceable confidentiality agreement signed by all parties to the mediation as well as the mediator prior to the beginning of the mediation process.
Furthermore, the domestic mediator cannot be called to testify in any other legal matter involving the parties to the mediation. In the state of Indiana, registered domestic mediators are indemnified against legal action in the same manner and to the same extent as judges.
Why do I have to fill out a financial disclosure form in domestic mediation?
In nearly all Indiana counties, the courts require both the plaintiff and respondent in a divorce case to fill out separate financial disclosure forms and, if applicable, a child support worksheet. The individual financial disclosure forms are required to be completed and exchanged with the other party to the case in both domestic mediation and litigation. This exchange is normally done at the beginning of the litigation or mediation processes shortly after the Petition for Dissolution of Marriage is filed with the Court Clerk’s Office. The respective financial disclosure forms are then submitted to the courts and the information provided on those forms is assumed to be accurate and complete under the penalty of perjury.
The reasoning behind this exchange of information is to insure that both parties are aware of the financial realities surrounding their marriage and their divorce/separation. Quite often, one spouse handles the finances with the other one having little or no knowledge or understanding of the complete financial picture. In other cases, each spouse may have separate checking, savings and retirement accounts as well as separate debts in addition to joint financial assets and liabilities. Regardless in whose name the assets and liabilities are, all assets and liabilities of both spouses are usually considered to be owned by both. Some exceptions to this rule exist in the case of inheritance as well as verifiable prenuptual or post-nuptual agreements.
In litigation, the courts usually see the divorce asset/liability equation as a 50%-50% situation. However, domestic mediation allows for the parties to customize their financial agreement to meet their family’s specific needs even if that agreement does not divide the assets and liabilities equally.
What does domestic mediation cost?
The simple answer is, “Much less than litigation.”
Families who choose to use domestic mediation rather than litigation to resolve domestic disputes only have to pay for one mediator rather than two attorneys in litigation. The fact that litigation is, by its nature adversarial, the time the attorneys spend in preparation for court plus their actual time in court arguing for their clients drives the cost of litigation to a level much greater than that of domestic mediation.
On average, the cost of a litigated/contested divorce in Indiana is a little more than $9000 and much higher for families with complex finances. In contrast, it is not unusual to achieve a mediated agreement within 5-7 one-hour mediation sessions, assuming all parties are acting in good faith. Once a signed agreement is finalized through mediation, it is forwarded to the court to be approved. The process is completed and the agreement is binding once the judge signs off on the agreement.
The hourly rate for the services of the GSWM mediator are structured on a sliding scale based on the verified, combined income of both parties to the dispute. A retainer fee will be collected from the parties prior to the beginning of the domestic mediation process. This retainer fee can be paid with either cash or check. The specifics of the sliding scale hourly rate will be explained in full during the free pre-mediation consultation session in addition to addressing any other questions about costs of domestic mediation.
The domestic mediator charges only for time spent in the actual mediation process with the family members and any time necessary to prepare documents for submission to the court.
Court filing fees in domestic mediation, as is the case with litigation, are the responsibilities of the parties to the dispute. A full schedule of Indiana court filing fees is available from the domestic mediator at the beginning of the process when the mediation contract is signed by all parties. In some cases, these filing fees can be reduces or waived at the discretion of the court.
GSWM does not charge the parties for travel time but does charge the current government mileage rate for any necessary travel outside the home county in which the agreement will be filed with the court.
How long does the domestic mediation process last?
Once again, that depends on the particulars of the domestic dispute. If there are no minor children involved or complex asset/liability issues and both parties are acting in good faith, the mediation process can usually bring about an agreement that is satisfactory to all parties and will be approved by the courts within 4-6 one-hour sessions. Of course, not all domestic disputes can be quickly resolved for any number of reasons. Each case is different and depending on how willing the parties are to work toward reaching an equitable and fair agreement, the mediation process may take longer. Still, even an extended mediation process will likely end up costing significantly less than a drawn out litigation.
If the dispute involves a divorce, it is important to understand that in the state of Indiana there is a sixty-day waiting (cooling off) period from the date that the Petition for Dissolution of Marriage is filed with the court before the divorce can be final. Assuming the parties to the divorce are acting in good faith, there is no reason that an agreement cannot be crafted and approved by the court well before the divorce is finalized.
What are some of the major differences between domestic mediation and litigation?
Domestic mediation differs significantly from litigation in family dispute situations. Not only is mediation almost always less costly than litigation but it generally takes much less time to reach an agreement than it does for a case to work its way through the court system. Unlike litigation, the outcome of the mediation process is a voluntary agreement created by the family members as opposed to an outcome that is determined by attorneys and a judge. Once that agreement is signed by the parties and is approved by the judge, the agreement is binding and the process is complete. In litigation, the family members may not have significant input into what the final decision will be. The judge and the attorneys will be making most of the important decisions based on Indiana state guidelines. However, in the mediation process, the family members have nearly complete control over what the final agreement will look like since they are the ones who craft it. Of course, no agreement will be approved by the courts if it contains provisions that are specifically forbidden by Indiana state statute.
Litigation is absolutely the right process for resolving some domestic disputes. However, litigation is adversarial by nature and quite often can leave the litigants with emotional scars because of unfulfilled needs and/or unaddressed fears whereas mediation is cooperative and seeks to address those fears and needs in order to reach an equitable agreement. That distinction is important, especially when children are involved.
Unfortunately, due to the emotional stress associated with family disputes, many adults loose sight that even if they end their marriage/partnership/living arrangement in an effort to move on with their respective lives, they still have to create a working relationship in order to successfully co-parent their minor children. When minor children are involved, the primary focus of the domestic mediator is to facilitate an agreement that is child-centered so that the children do not end up being used as pawns in an emotionally-driven chess game between the parents and/or extended family members. Parents will need to find a way to function effectively and without open animosity towards one another as they raise their children. The domestic mediation process also provides family members with the tools to resolve future disputes in a manner that is not disruptive to their lives or the lives of their children and extended family members. In addition, the reality for most families is that the need for amiable interaction with extended family members, former in-laws and grandchildren yet to be born is a fact that many people do not consider when deciding to change their family dynamics.
What are the advantages of domestic mediation over litigation?
It is important to understand that mediation is not appropriate for some domestic disputes. That can be determined during the free pre-mediation consultation provided by FMS. During that consultation, the domestic mediator and the parties will discuss the general details of the dispute and whether domestic mediation is the best option for resolving disputes such as divorce, asset/liability division, child custody, child support, parenting time, paternity. Assuming that the parties to the dispute and the mediator believe that the dispute can be resolved without going to court, then the mediation can begin at a mutually agreeable time and location or by use of virtual means.
In an ideal world, there would be no reason for people to use litigation in resolving civil or domestic disputes. In that ideal world, people would simply sit down with one another and hammer out an agreement that would address the needs and concerns of all parties involved. Unfortunately, not all parties to a dispute are either able or willing to do that because of selfish motives and/or emotions derailing the negotiations, causing the parties to seek remedies in the courts.
In litigation, both parties hire attorneys and those attorneys begin to prepare their arguments—and charge hourly rates—for court. The attorneys focus on how to win as they advocate for their clients. In this adversarial scenario, there will be winners and losers. The winners will likely be satisfied with the decision of the judge and the losers will not.
Unlike domestic mediation, litigation usually does not take into account that parents of minor children will have to effectively and quickly resolve issues of co-parenting not addressed by state guidelines such as how will the parents provide supervision and care for young school-aged children on snow days or for periods of time when the children are ill and cannot go to school or daycare. With the domestic mediation process, these and other nuanced situations can be addressed and strategies developed to deal with them if they arise in the future.
Unlike litigation, the domestic mediation process is structured to arrive at an agreement both parties are satisfied with because they are the ones who develop the specifics of the agreement with the assistance of the mediator. And, because the final agreement is a mutually-developed product, the parties have far more latitude in crafting that final agreement than may be allowed by state statutes or guidelines if the dispute goes to litigation and is decided by a judge. Additionally, there is a much greater chance that all family members will abide by the agreement in the future since they are the ones who crafted it in the first place.
The state of Indiana does have certain guidelines for child support and parenting time that must be part of any mediated agreement or litigated court decision. However, if all parties to a mediated agreement determine that their particular case has some unique characteristics that fall outside of the norm, then they can include specifics in their agreement to deal with their unique situation that may not be possible if litigated and adjudicated in the court.
Last but not least, litigation is adversarial and the parties never have the opportunity to learn the skills necessary for dealing in a cooperative manner with future disputes that will surely arise if they co-parent and/or conditions change significant as they move on with their lives. The domestic mediation process allows parties to learn the skills necessary to resolve future disputes on their own. Of course, parties can always bring their future domestic disputes back to mediation using the same mediator or a different one, if they wish.
