Rensselaer lawyer Samantha Joslyn has handled family law cases filed at the Jasper County courthouse and in several surrounding counties in northwest Indiana. She said whether those cases will be mediated depends in large part on the court where the case is filed.
For instance, in more populous Lake and Porter counties next door, Josyln said courts typically require divorcing couples to mediate their cases, yet mediation is infrequent in some of the smaller counties where she practices. “Unless the county has some sort of a program, like Starke County, I would say historically it’s been less utilized just because of the expense for the counties,” she said.
“From that extreme (of mandatory mediation) to the extreme of being rarely ordered, I think there needs to be a happy medium,” she said.
Local rules — and sometimes in smaller counties the court’s inclination — determine whether divorces, custody disputes and other family law matters are subject to mediation. In smaller counties, “to a great extent, it’s the personal preference of the judges,” said an Indiana senior judge who spoke on condition of anonymity.
Joslyn was certified as a mediator before she passed the bar in 2005, and the Valparaiso University Law School graduate said she would relish the opportunity to do more mediation work in domestic relations cases. “It would be great if programs were available in rural counties to help,” she said.
Resources available for lower-income litigants also factor into whether family law cases get steered toward ADR. The Starke County program Joslyn mentioned is among those in 40 Indiana counties that collect a $20 filing fee on domestic relations and certain other civil cases. The money goes into a local court-administered fund to pay for mediators in domestic cases where litigants are indigent or have limited means.
Jeremy Brown, an attorney in the Adams County seat of Decatur, has mediated cases in his home county, in neighboring rural Jay and Wells counties and the more metropolitan Allen County. Allen is one of 12 counties that has an ADR Fund Plan and receives Family Court Project grant money from the Indiana Supreme Court. Adams, Jay and Wells receive neither.
Despite this, Brown said most judges in northeast Indiana prefer parties to try to resolve domestic relations litigants’ cases through ADR. Even in the counties where he works that lack programs to fund mediation for those who can’t afford it, he said the challenge is being met. He does agree, though, that mediation isn’t always the chosen path depending on the judge and jurisdiction.
“Wells and Adams County are most certainly inclined to push a case to mediation, and that’s also because of the bar. We have developed both in Adams and Wells County a custom that a lot of the family law bar prefers to go to mediation,” he said. Judges also often refer cases to lawyers in those counties who will take mediation cases on a pro bono or reduced-fee basis.
Brown believes younger judges are more apt to require parties mediate disputes — a big change from when he began practicing 20 years ago. “It was brand new in many ways,” he said, “particularly in a culture of, just go fight it out and let the judge decide.” The mind-set has changed, he said, “in no small part due to the fact (mediation) has been effective.
“In a custody dispute or a fight in court to determine what’s in the best interests of the children, the fact the parties are fighting in court already is running contrary to the best interests of the children,” he said.
Across the state, Evansville attorney Edward Johnson of Johnson Carroll Norton Kent & Goedde P.C. believes there should be a statewide standard requiring mediation in domestic relations cases, though he says there should be exceptions for cases involving domestic violence or relocation. He said mediation is “really helpful to the parties as well as the court.”
Vanderburgh County benefits from an ADR fund for litigants of modest means. Johnson said while there are plenty of lawyers in Vanderburgh and the surrounding counties for mediation, many litigants can’t afford to pay. That doesn’t get in the way of providing the service, though. “To my knowledge, it’s never been a problem,” Johnson said. “Mediators are busy.”
Vanderburgh Superior Judge Richard G. D’Amour requires mediation for all domestic relations cases that require more than a half-day of his court’s time. He said he wouldn’t object to a statewide standard for mediation in domestic relations cases.
“I think mediation is probably the greatest thing that’s happened, not just to family law, but to the legal business in the last 50 years,” he said. “It’s been a godsend to courts and lawyers and litigants,” who he said are “much happier with the result than with a judge force-feeding them something.”
Next door in farthest southwestern Indiana, Posey Circuit Judge James Redwine has been hearing cases for about 35 years and domestic relations cases for 25. He insists on mediation if parties can’t resolve their differences after a “pre-pretrial” conference he orders for litigants in family law cases. He’s found parties often resolve their differences at the pre-pretrial stage and tender a proposed agreement. If they don’t, he orders mediation within 30 days.
Posey County lacks court program funding for mediation but doesn’t lack the will to find a way.
“It has been my position for 25 years that the Constitution of the state of Indiana requires public provision of funds to indigent parties in civil cases just as it would in criminal cases,” Redwine said. “It’s not a new concept, but for some reason it doesn’t seem to be generally recognized.”
However, he said lawyers and elected officials in Posey County recognize the need and benefits of providing mediation. He said he’s never been turned down when he asks a lawyer to take a domestic relations mediation for a reduced fee where ability to pay has been an issue, nor has the county ever balked at paying the bill.
“I think an awful lot of credit in Posey County has to go to the 25 to 30 years of work the bar has done” promoting pro bono and reduced-fee service, Redwine said. During his years on the bench, he said, “We’ve gone through several permutations of the (county) council and commissioners, and every one of them has supported this approach.
“In my court, I think the constitution requires that poor people get the same access as rich people,” he said.•