What is Mediation?
Mediation is a non-adversarial alternative to litigation wherein the parties work together, with the help of a neutral third party “mediator,” to determine their own outcome, as opposed to having a result imposed upon them by a court. Mediation can occur either before or after the initiation of a lawsuit. Parties may agree to mediate their dispute, or may be ordered to do so by a court. Mediation typically occurs in an office rather than a courtroom, making the process less formal than a court proceeding. Depending on the type and complexity of the dispute, mediation may be scheduled for a single session ranging from a few hours to an entire day, or multiple sessions over the course of several days or even weeks.
At mediation, an impartial and professionally trained “mediator,” selected by agreement, guides parties through the mediation process. The mediator does not decide the outcome of the dispute, but rather assists the parties in reaching their own mutually acceptable resolution. Although mediators are often also attorneys, the role of a mediator is not to give parties legal advice. A mediator may inform parties of certain applicable laws, rules and guidelines so that parties may have the information necessary to make well-reasoned decisions.
Conduct or statements made while negotiating or attempting to resolve issues at mediation are confidential and not admissible in court. Mediators are not permitted to testify about matters discussed at mediation.
Types of Mediation
Although there are no limits to the types of disputes which may be mediated, the most common types of mediation are categorized as civil (e.g., personal injury claims, employment disputes, healthcare issues, business disputes) and family law (e.g., separation, divorce, custody, visitation, post-dissolution issues). JHDJ offers both civil and family law mediation services.
Benefits of Mediation
At mediation, the parties retain control of the decision-making process and are afforded the opportunity to determine the outcome of their dispute, rather than leaving important decisions affecting their lives to a judge or jury. Mediation can result in quicker dispute resolution since mediation occurs at the parties’ and mediator’s convenience, as opposed to judicial proceedings which are often scheduled months or even years in advance, depending on the court ’ s calendar. Because much of the necessary exchange of information between the parties can occur at mediation as opposed to gathering the same through time-consuming and costly formal “discovery,” mediation tends also to be less expensive than litigating a dispute through a court proceeding.
In family law matters involving children, mediation can set the stage for future peaceful and cooperative parenting, as opposed to the hostile and uncooperative parenting relationships which too often follow bitter and lengthy legal battles, and which typically have a profound negative effect on children.
Must Parties be Represented by Attorneys?
The goal of mediation is for parties to create agreements which are fair, workable, and which will not be subject to future challenges or frequent petitions for modification. To this end, it is important that the parties make informed decisions at mediation. Because mediators cannot advise parties of their legal rights nor of likely outcomes if their disputes were tried in court, of their dispute, parties may wish to retain legal counsel who can render legal advice before and during the process, and who can further assist in the preparation and filing of documents necessary to effectuate the parties agreement. Parties are encouraged, however, to select attorneys who understand and support the mediation process, as well as their client’s decision to mediate.
Who May Attend Mediation?
The parties and their attorneys, if represented by counsel, must attend all mediation sessions unless otherwise agreed. Mediation sessions are not open to the public. However, individuals with information or expertise useful in resolving issues (such as accountants, appraisers, mental health professionals, etc.) may attend as agreed by the parties and at the discretion of the mediator.
What Happens if a Dispute is Not Resolved at Mediation?
Although disputes are often successfully resolved through mediation, any issues not resolved at mediation may still be litigated in court. Parties do not forfeit any rights they may have to bring or maintain a legal action by electing to mediate.
Resources for Additional Information
The Indiana Rules for Alternative Dispute Resolution (including mediation) can be found at:
- The Indiana Rules for Alternative Dispute Resolution.
- The Association for Conflict Resolution: The Association for Conflict Resolution.
- Using Divorce Mediation: Save Your Money & Your Sanity, Katherine E. Stoner.
- The Divorce Mediation Handbook: Everything You Need to Know, Paula James.