Mediation is a way of resolving a lawsuit without going to court. In mediation, a trained, neutral person called a “mediator” helps the parties work together to reach an agreement on some or all of the issues between them. Mediation is an option in civil cases (like those involving car accidents, business disputes, medical negligence, employment, and many other types of lawsuits) and in cases involving families (like divorce, paternity, and grandparent visitation cases).
Here’s what you should know before going to mediation:
1. The mediator is a neutral party, not an advocate.
In most cases, the mediator is an attorney or former judge who has been specially trained to help parties reach an agreement. The mediator is neutral. He or she will not pick a side. It is the mediator’s job to help both parties maximize their chances of settling their dispute. In a traditional mediation session, the mediator does not issue rulings or decide any issue in the case. The mediator helps the parties negotiate. Mediation generally occurs at an attorney’s office, but it could also occur at a mediation center, a courthouse, or another neutral location. Some cases settle after a single, one-hour session. Other cases require several full-day sessions. The length of the mediation depends on many factors, including the reasonableness and effort of the parties, the complexity of the legal issues involved, and the number of issues on the table.
2. There are a few different ways to pick a mediator.
The mediator is generally selected by the parties’ agreement or appointed by the judge. The judge may also appoint a “striking panel” of three mediators and order each party to take a turn striking a potential mediator from the panel. The last potential mediator left on the panel is appointed to mediate the case.
3. You do not have to reach an agreement, but you must mediate in good faith.
Mediation (unless it has been court-ordered), is a voluntary process. The parties are not required to reach an agreement. They are required, however, to negotiate in good faith to work out their differences and reach an agreement. If the parties reach an agreement at mediation, then the agreement is put into writing and signed by the parties and (generally) the parties’ attorneys. In family law cases, the judge approves and signs off on the mediation agreement and it becomes a court order. Even if the parties cannot settle a case at mediation, mediation is still a valuable opportunity to gain insight into the other party’s perspective about the case. Sometimes, even though the parties were unable to agree at mediation, they will continue to talk about settlement after the mediation is over and may reach an agreement sometime before trial.
4. Judges may order parties to mediate a lawsuit before setting a final hearing or a trial date.
Judges work very hard and their dockets are crowded. Often, a judge will order the parties to try to work out a disagreement at mediation before spending valuable court time and resources hearing a case that could have been resolved without a trial.
5. Mediation generally costs money, but it is far less expensive than going to trial.
Although Indiana has many good low-cost and free mediation programs for families who cannot pay for a private mediator, in most cases, mediation is not free. The parties can agree to split the cost of a private mediation session, one party may agree to pay the entire cost, or the parties may agree to an alternate arrangement. Although mediation costs money, it is generally far less expensive than the cost of paying an attorney to take your case to trial.
6. Most cases settle at mediation.
The vast majority of civil and family law cases settle at mediation. In addition to the cost-saving benefit of mediation, resolving a case at mediation gives both parties more control over the outcome. Trial can be risky and juries can be unpredictable.
7. Mediation is not appropriate in all cases.
Mediation is not appropriate in all cases. For example, in a family law case where there is a history of domestic violence (also called intimate partner violence) between the parties, mediation is generally inappropriate. In such cases, the abuser may try to intimidate the survivor into settling under terms favorable to the abuser, and such intimidation can be very subtle and not readily apparent to the lawyers and mediator.
For more information about mediation and whether it may be appropriate for your case, contact Huettner Law today to schedule your initial consultation.