When facing a legal dispute in Ohio, whether it’s a divorce, child custody issue, or another civil matter, litigation isn’t your only option. Mediation offers a more collaborative, cost-effective approach to resolving differences. A family law matter doesn’t have to be an adversarial game in which you and the other party face off and fight about everything from child custody to spousal and child support to who gets the linens and the lawnmower. Mediation offers an alternative to traditional litigation that allows you to work out differences in an atmosphere where consensus, not contentiousness, is the way to reach mutually acceptable resolution.
As legal professionals who regularly guide clients through mediation, we want to explain what you can expect during this process in Ohio.
What is Mediation?
Mediation is any process in which a mediator facilitates communication and negotiation between parties to help them reach a voluntary agreement regarding a dispute. It is a negotiation process that is solutions-oriented, respectful, peaceful, collaborative, and cost-effective. As a form of alternative dispute resolution (ADR), mediation offers a way to get through a divorce or child custody dispute without the cost and turmoil of litigation.
The mediator acts as a neutral party who doesn’t “take sides,” but rather facilitates communication between you and the other party, helping you find ways to reach an agreement. A great advantage of mediation is that you and the other party decide all or most of the terms of the settlement of your issues, rather than having a judge make the decision for you.
All aspects of your matter can be covered under an agreement reached through mediation including but not limited to child custody, parenting time, child support, spousal support (alimony) and division of property.
The Role of the Mediator
The mediator, a neutral third party, provides a forum that allows parties (and their attorneys or support individuals, if present) to discuss their dispute and any other issues that may concern them. These discussions may include everyone in the same room, or the mediator may speak with each party separately, including the attorneys, without their clients being present.
The mediator does not act as a judge and does not make any decisions in the case. While the mediator facilitates discussions in a “facilitative” mediation, and may even evaluate the case in an “evaluative” mediation, it is the attorney’s job to give advice and opinions to their clients. The goal of mediation is to allow the parties (rather than a judge or a jury) to decide the outcome of the case.
Ohio’s Mediation Process
Once you and the other party agree to try an Ohio mediation process as a positive way to resolve disputes, you will meet with the mediator to discuss your views and issues. You and your spouse must agree on the choice of a mediator. Typically, the mediator will meet with you and the other party together so that time isn’t wasted and there are no communication mishaps. In some cases (such as if there is a history of substance abuse, anger issues, etc.), the mediator may meet with the parties separately.
Once the initial meeting occurs, here’s what you can expect:
Your mediator will ask each of you to talk about how you see your situation and what your goals are.
As problems are identified, the mediator may ask additional questions for clarification and reiterate what each party has stated to ensure that everybody understands each other’s points. Information is needed in order to move forward effectively, so you should expect to supply pertinent data such as work schedules, tax returns, bank statements, insurance policies, and mortgage documents.
Your mediator will give you information about the process, expectations, and next steps.
Most importantly, your mediator will facilitate discussions between you to help you reach agreement. This may include alternative ideas for solving problems and finding solutions that lead to an agreement.
Once you both are satisfied with the arrangement you have reached, the mediator writes a memo outlining the agreements you have made. It is then submitted to you, your spouse and your attorneys for review. Once approved, the attorneys carefully draft the agreements, orders, and other necessary documents; all parties sign the document; and it is submitted to the court as a dissolution or uncontested divorce.
How to Prepare for Mediation
Proper preparation can significantly improve your mediation outcomes. Before the scheduled mediation, contact the court’s mediation services to ask how much time the mediation is likely to take and plan accordingly. Also, ask what documents, forms, etc., you need and whether you should provide them in advance. A lack of appropriate information may require you to reschedule your mediation.
If you are represented, talk with your attorney before the mediation date. Determine (with your support person(s) and/or your attorney, if you have one) your goals, what has kept you from settling the dispute, how you will evaluate offers presented at the mediation, what the other side likely will need to resolve the case, and who you would like to attend the mediation. You should also evaluate the strengths and weaknesses of your case, the costs of going to trial and the potential risks of going to trial.
Generally, parties will share information before the mediation session. This may include information contained in financial documents, such as pay stubs and utility bills, child-related documents and other relevant information. Sharing such information beforehand allows you time to review it, and may eliminate the need for another session to consider additional documentation necessary for settlement.
Who Attends Mediation?
The court may order all parties in the case to attend the mediation session. Assuming the parties are represented, their attorneys almost always attend, but need not be present if excused by the court. Insurance company representatives, if any, also may attend, along with any other party necessary to settle the case.
You and the other party also may invite individuals who are not necessary to settle the case, but may provide support. You do not need an attorney to attend the mediation, but you can always ask the mediator to stop the mediation so you can call an attorney before you proceed.
In fact, Ohio law protects your right to be accompanied. The Uniform Mediation Act allows parties to be accompanied by an attorney or other support persons, even if the party had previously waived his or her right to do so. In other words, a party can change his or her mind in the middle of mediation.
Confidentiality in Mediation
Many people worry about what they say in mediation being used against them later. Ohio has strong protections for mediation communications:
Unlike a trial, mediation is conducted in a non-public setting (usually a private room in the courthouse). Ohio law protects mediation communications from being disclosed in court proceedings except in certain cases (such as when there are threats of harm, admissions of crimes or admissions of abuse).
Generally, no one who participates in mediation may reveal mediation communications in any proceeding, including court. Communications may, however, be revealed as long as all of the parties agree.
The Uniform Mediation Act (UMA) uses “confidential” and “privileged” to describe when mediation can be discussed outside of mediation. “Privileged” refers to when mediation communications can not be discussed in a subsequent formal proceeding. What happens in mediation is considered privileged unless one of two things happens. First, the person who has the power to keep someone from testifying decides to allow them to testify, or second, what a person wants to testify about falls under an exception, such as child abuse, malpractice, or violent crimes.
For those concerned about additional privacy outside legal proceedings, remember that mediation is only confidential to the extent that all of the parties agree. Therefore, if you do not want your mediation communications to be revealed anywhere outside of any legal proceeding (for example, published in the local newspaper), you should tell your mediator you want to enter into a confidentiality agreement with the other party before the mediation begins.
When Mediation Might Not Be Appropriate
While mediation offers numerous benefits, it’s not suitable for every situation. There are some situations in which mediation can be damaging, could trap you in a legal nightmare, and should not be attempted:
If the other party has engaged in physical violence; sexual coercion; physical or electronic stalking; financial abuse; coercive control; repeated intimidation; threats of violence, or other domestic abuse;
If in the presence of the other party, you find yourself “walking on eggshells,” flinching when they’re angry, or “fawning” (reactively trying to do whatever it takes to sooth them);
If the other party has an unresolved substance abuse problem;
If the other party has an inadequately treated mental health issue that can prevent rational thinking (bipolar, psychosis, schizophrenia, some personality disorders, etc.)
Your safety and well-being should always come first. In these situations, traditional litigation with proper legal protection may be more appropriate.
Benefits of Mediation
Mediation allows you to have more control of the outcome of your dispute. Mediating a dispute also can help you and the other party to identify solutions and other issues that are not included in the formal case. An agreement created by you and the other party is more likely to meet your needs.
If you can settle your case without going to trial, then you eliminate the risk of losing your case or getting a judgment that is less acceptable than a negotiated agreement. Also, you save money and time that a trial would require.
Often, courts provide mediation services at no charge to you. Any fee that may be charged is typically much lower than the cost of a trial. Also, mediation discussions are less formal and generally more relaxed than a trial. Finally, if you go to trial, then you must accept the judge or jury’s decision, unless an attorney advises you to appeal.
Next Steps: Is Mediation Right for You?
Is mediation right for you? Parties often find that a mediated settlement helps them reach agreement in a way that is more affordable and less stressful for everybody than litigation, especially when children are involved.
If you’re considering mediation in Ohio, we encourage you to learn more about the process and how it might benefit your specific situation. The Ohio State Bar Association provides additional information about mediation through their website at www.ohiobar.org, and the Supreme Court of Ohio offers resources.
For personalized guidance on whether mediation is appropriate for your case, we invite you to contact our firm for a confidential consultation. Our experienced attorneys can help you understand your options, prepare effectively for mediation, and maximize your chances of reaching a favorable resolution without the stress and expense of traditional litigation.
Don’t navigate this important process alone. Reach out today to learn how mediation might help you resolve your legal dispute in a constructive, cost-effective manner.
