Mediation for divorce and divorcing parties was something unheard of – or at least not the “norm”- fifteen or twenty years ago. However, with the general acceptance of no-fault divorce in the 1970s, divorce rates steadily climbed and now are about 1:1 with one’s first marriage. This created thousands upon thousands of cases pending for Indiana trial courts to hear and decide.
Somewhere along the way, as much out of common sense as necessity, lawyers, attorneys and judges began to consider and try mediation in divorce to alleviate the backlog of cases and avoid the hostile divorce trials, whereby the ills inflicted through the litigation clearly impacted children for the long term. At first there really were no mediators offering full-time divorce mediation services, and many, if not most, attorneys did not think two entrenched parties could or would settle in mediation.
However, there is something magical about divorce mediation–and the ability of the parties to give-and-take, and to express non-relevant facts or circumstances to the other side, that corresponds with successful settlement. Something as simple as a mediator relaying that one spouse is genuinely sorry he or she had an affair and hurt the other would never come out in court because it is not relevant to no-fault divorce. Nevertheless, to have relayed this apology to the other spouse, or addressing other non-relevant sticking points, removes a barrier that no court process could ever remove, perhaps settling the case for non-legal reasons.
Soon after mediation in divorce began, lawyers and Indiana courts observed that even the most seemingly uncompromising parties began to resolve issues surrounding the divorce mediation, and the parties avoided court. This made the attorneys at large more open to the divorce mediation concept and spend more time and attention on mediation because the client, not the court, can be in control of the outcome. It was thus a matter of time before the courts began to require mediation between the parties prior to their court date. This does not violate the Constitutional right to access courts. (Fuchs v. Martin, 2006).
The market for a divorce mediation attorney grew on the traditional attorneys who only tried cases. The idea of a divorce mediation lawyer was such a hit that some lawyers became Indiana certified mediators who now only mediate domestic cases. They do not represent either party, but mediate between the parties and their attorneys, generally shortly before a final hearing, or trial date.
Mediation has become firmly embedded into family law. Realistic expectations of the parties, prepared attorneys and skilled mediators all contribute to the success rate of domestic mediation. In a successful mediation, the attorneys attempt to find commonalities among the parties with respect to the division of property and child custody and support related issues, while an informed divorce mediator attorney plays devil’s advocate as it relates to the Indiana court and trial process and domestic dynamics.
In the final analysis, mediation for divorce is an effective way to resolve cases, with parties “winning” because they reach an agreement, ultimately minimizing the legal costs and emotional tolls of a trial, increasing the amount of the net marital estate to divide between the parties, and keeping the children out of some of the ill-will between the parents. It is – to answer the initial question – a great tool for resolving most Indiana divorce cases and post-divorce issues.
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