A recent blog addressed tips for mediation. But, how does mediation work1? Prior to trial, the parties in a matter may be ordered or agree to mediate the issues (this can be some or all issues) pending. A mediator can be agreed upon by the parties or may be appointed by the Court. Often, the timing for mediation is after discovery (information gathering) has been significantly begun or completed.
Different mediators have different styles and tactics. Some have the parties in a single room together. Others keep the parties in separate rooms and go back and forth. During mediation, the parties essentially use a neutral third party to negotiate. The parties generally start with an initial offer and work from there to see if a resolution can be made.
But, how does the mediator get up to speed on the pending issues? The parties can submit a confidential mediation statement prior to mediation. In this statement, the party can include information on the background on the parties and case, what filings or issues are pending, and the position of the party. This statement is not shared with the opposing party, but helps lay a foundation for the mediation. The opposing party may also submit a mediation statement providing their views and requests, as well.
In mediation, one or all issues may be resolved. For example, in a divorce matter, the property division may be mediated and resolved, leaving child custody and support for hearing if same cannot be resolved. Once mediation has been completed, the mediator files a report with the Court which states whether or not mediation was successful.
If mediation is successful, a written agreement signed by the parties and the attorneys is submitted to the Court. Upon review, if the Court agrees, they can sign the mediated agreement and make it an Order. Once a mediation agreement is entered into a signed, it is a binding agreement, just like any Court Order.
If a mediation is unsuccessful, the mediation will file a report that same was unsuccessful. The parties may continue to work out the pending issues, or can go to Court on pending issues. The mediator does not give legal advice to either party, but instead, acts as a go between to try to resolve pending matters prior to trial or reach a middle ground agreeable to both parties.
Mediation can be a helpful tool and may potentially avoid some matters being litigated if an agreement is reached. Knowing the options of mediation and how it may work in a case can be helpful in case planning. We hope that this blog post has been informative on how mediation works generally. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
- See generally, Rules for Alternative Dispute Resolution