Finding common ground in divorce: Couples use mediation as less costly venue

When a couple decides their marriage is irretrievably broken and divorce is their only option, there are a lot of factors to consider as soon-to-be ex-spouses decide the best way to move forward.

Division of assets, child custody if children are involved and financial issues take center stage in most divorces, and emotions run high for both parties.

For Greg Spencer, founding attorney at Greg Spencer Law, mediation first started to gain traction as a way to settle cases and avoid protracted, costly divorce hearings around the late 1990s and early 2000s.

From the mid-2000s to now, mediation has become an accepted part of the process, he said.

“It’s not really a novel idea now. It’s something you plan for,” Spencer said.

In September 2022, there were almost 1,000 actively registered mediators in Indiana, according to the state’s mediator registry, with 633 registered solely as domestic relations mediators.

Mediation can be beneficial to attorneys like Spencer when he can find a good mediator who helps his client navigate through a painful divorce and find agreement with their spouse on tough financial and parenting issues.

It can also ultimately reduce legal costs for both parties in a divorce.

“I think it’s very helpful,” Spencer said. “I think it’s a tremendous benefit to both parties.”

How the process works for experienced mediators

Spencer said 30%-35% of his firm’s caseload now involves family law cases.Those cases generally involve either typical divorce cases with property division and child custody issues or modification of existing child custody orders.

Mediation gets both parties talking and can help narrow down issues, he said.

As far as individual counties, court-ordered divorce mediation is fairly common in central Indiana, Spencer said. He handles a lot of cases in Hendricks, Marion, Hamilton and Johnson counties.

Many mediators are practicing attorneys, Spencer noted.

For example, Rob Shive, an attorney with Emswiller Williams Noland & Clarke LLC, has been practicing law for just under 30 years.

Shive first took civil mediation training in the 1990s, then domestic relations mediation training about 15 years ago.

Shive serves as a mediator 60-70 times a year, mediating mostly family law cases.He said 75%-80% of the time, mediation is successful in his cases.

In the last 10 years, almost every court is receptive to a family law case going to mediation if one party requests it, Shive said.

The bulk of Shive’s mediation cases are in Marion County, but he said he also handles cases in surrounding counties and has served as a mediator in cases as far away as Howard County.

Five years ago, all mediation was basically in person, he said.

Now, post-pandemic, there’s a variety of ways to conduct a mediation meeting, whether in person or virtual.

For his mediation sessions, Shive schedules meetings for a full day.

Mediation is effective because it’s concentrated, he said, so for him, just the fact that a day has been committed to on both sides makes it more likely to work.

There are six mediators who are attorneys at Shive’s firm, he said.

“Almost every family law practitioner that I know with 10 years of experience is a mediator,” he said.

That includes Marsha Hackenberg with Hackenberg Law P.C. in Westfield, who has been a mediator since 2019.

Hackenberg estimates she mediates about 50 cases a year.

She said being a longtime family law attorney with a focus on mediation helped her see how the process works.

“It just lends itself really well to the family law area,” she said. “It really reduces conflict.”

Mediation is typically ordered in many counties, Hackenberg continued.

She said she also mediates for pro se clients when parties come to her without an attorney for prelitigation mediation.

Carol Romine is a retired family law attorney and the founder of Indiana Divorce Mediation Group LLC.

Romine graduated from law school in 1996 and took mediation training in 1998.

She has decided to take a different approach to divorce mediation and only accepts pro
se clients.

She started her own law firm in 2013. It took her five years to get her mediation business going, she said.

“I don’t know how you could do this without a lawyer background,” she said of being a mediator.

Now, Romine only handles mediation work with couples who do not have attorneys.

She said she had seen mediation become more and more adversarial, something she attributed to attorneys and their obligation to advocate for their clients.

So for her, Romine said mediation is a whole different ballgame.

“I kind of represent the whole family,” she said.

Romine has a statewide clientele because she does everything via Zoom.

Typically, for mediation, she has three sessions, which she tries to limit to two hours each.

Cost savings realized through mediation

Spencer said mediators do charge a fee, which can vary from mediator to mediator. There are also programs for people who can’t afford regular mediator fees.Mediator fees are usually split between both parties in a divorce case, he said.

Romine said she charges a flat fee for mediation.

She estimated that a family law attorney, even if they get a divorce case settled before going to court, may generally cost clients as much as $12,000-$15,000.

If both parties settle a case before it goes to court, there won’t be depositions or other legal procedures that may be needed in a divorce case, Romine said.

For example, a deposition could cost $2,000-$3,000, with formal discovery, custody evaluations, and the time and effort the attorney puts into research also driving up legal costs for people seeking a divorce.

“If you ask for 12 months of bank statements, you have to study them,” she said, citing one example.

Further, Romine said a litigated divorce case could cost as much as $50,000 to $100,000 in legal fees, depending on what kind of experts an attorney hires.

“So the savings is huge,” she said of mediation, adding, “More important than money, my clients learn how to talk to each other.”

If a divorce case does not get resolved through mediation and goes to trial, Shive said, the cost for experts, appraisers and business evaluators can add up quickly and rise into the tens of thousands of dollars.

He said an attorney’s preparation as counsel for mediation pales in comparison to the elements and formalities of court.

“The mediation is going to give you a relatively fixed cost,” he said.

Initially, when Hackenberg started out as a mediator, it involved primarily court-ordered cases.

“But in the last year of so, it’s amazing how many are pro se,” she said.

Hackenberg said she thinks part of that has to do with parties being on the same page and wanting to avoid the cost of hiring an attorney.

If they’re pro se parties, fees run from $2,000 to $2,500, Hackenberg said, with the only other expense being the filing fee.

But even if both parties have attorneys involved with mediation, it still costs a lot less than going to court for a divorce, she said.

Hackenberg’s office offers a sliding mediation fee scale for parties with income that’s less than 200% of the federal poverty level.

“We try to make sure mediation is available to anybody,” she said.•