Litigation is not the best or only approach for all cases. As an attorney, you may be capable of developing a solid case in most circumstances, but being an effective advocate for your clients often means resolving a matter by hiring a mediator.
What is mediation?
Mediation is a form of alternative dispute resolution. Alternative dispute resolution is a way to resolve a legal disagreement without taking a case to trial. There are two forms of alternative dispute resolution: arbitration and mediation.
Arbitration is usually an informal trial process before an arbitrator, who often issues a binding decision in favor of one party.
In contrast, mediation is a process by which a neutral third party assists in resolving a dispute, usually through settlement discussions. Although a court sometimes requires mediation, the parties must agree to any resolution in mediation.
When is mediation beneficial?
Mediation can occur before or during litigation. Many people choose to wait until discovery is complete before entering into serious settlement discussions. However, the discovery process is expensive, so sometimes a more cost-effective resolution can occur earlier in the litigation process.
Sometimes a court orders mediation, and other times courts offer mediation services but do not require them. And in other situations, parties seek out mediation on their own.
What can you expect during mediation?
Mediation can take different forms, from how the mediator physically arranges the mediation to the approach the mediator takes in running the mediation. But there’s one thing all mediations must have in common: confidentiality.
Before the Mediation
Many mediators request that parties submit confidential mediation statements. These statements often include a basic outline of the case facts and the parties’ arguments so that the mediator has a better understanding of the parties’ positions before beginning the process. The mediation statements may also include a list of the people attending the mediation. Many mediators will require the parties to sign confidentiality agreements in advance.
Before Covid, most mediators required in-person attendance by the parties, preferably someone with settlement authority. If a person with settlement authority were unable to attend in person, they would need to be readily available by phone. Since Covid, some mediators have become more flexible with in-person attendance requirements. But even if not required, mediations are often more successful if all required parties attend in person.
Mediation Physical Arrangements
Most commonly, the mediator has each party stay in private spaces while the mediator travels between them. Some mediators prefer to have the parties begin in the same room before splitting them into their own spaces. Note that since the widespread use of video conferencing software apps, not all mediations occur in person.
Some mediators actively discuss a case’s merits with the parties. These mediators may try to convince the parties to either lower or raise settlement offers based on the case’s merits or the mediator’s beliefs about the likelihood of settlement.
Other mediators prefer to take a listening approach, reflecting each party’s positions back to them. These mediators may present the other side’s offers neutrally and allow time to process the offer without giving their opinion.
Mediation Time Frame
Some mediations last less than a few hours, whereas some may take days. The duration of a mediation depends on whether the mediator can keep the parties working toward a resolution even when they have not yet reached a settlement they will all accept.
No matter the mediator’s style, the discussions are always confidential. Just like attorney-client confidentiality, statements made during a mediation are subject to confidentiality rules, with few exceptions.
The mediator cannot repeat anything either party said about a case’s strength, and neither party can use a settlement offer against the other in court. As previously mentioned, to maximize confidentiality, many mediators have parties sign confidentiality agreements before beginning the process.
When would you choose mediation over litigation?
There are many reasons to choose mediation. In most situations, mediation benefits your client by saving them time and money.
Statistically, mediation is highly effective. One study found that out of 449 cases that went to mediation, 78 percent settled.
Why choose Amy Wheatley at Stein Law as your mediator?
If you need Indiana mediation services, you can’t go wrong with choosing Stein Law’s Amy Wheatley to be your mediator. If you are going to invest your client’s time and money and your own time into mediation, be careful to select a mediator with the experience and skill necessary to reach a desirable outcome.
Amy Wheatley is an attorney with more than 15 years of experience who has worked for both plaintiffs and defendants. She understands both sides’ perspectives. Contact Amy Wheatley today at 812-948-6000.