Mediation in Indiana: What It Is and What You Need to Know
Mediation is defined by Black’s Law Dictionary as “a method of nonbinding dispute resolution involved a neutral third party who tries to help the disputing parties reach a mutually agreeable solution.” In practice, mediation occurs when both sides ask a mediator to assist them in attempting to negotiate a settlement acceptable to all the parties. In Indiana, many – if not most –courts require the parties to attend mediation to attempt to work out a settlement before they are allowed to proceed to trial.
What is a mediator?
The parties typically agree upon whom to use as a mediator. In certain instances, the mediator is appointed by the Court. This happens in cases where the parties cannot agree on whom to select as a mediator. So, what is a mediator? He or she is a neutral third party, who is a licensed Indiana attorney, with knowledge and experience in handling particular types of disputes or areas of law. Just like attorneys, their past experience can vary, so it’s important to pick a mediator who is well-respected and whose past experience lends itself well to the type of dispute being mediated. In other words, you wouldn’t want to hire a mediator who only has personal injury experience to mediate a complex business or real estate matter. For this reason, attorneys try to select the “right” mediator for each of their client’s cases.
What Does a mediator do?
The mediator’s job is to work to facilitate communication between the parties and to bridge the gap between them in an effort to help them find common ground, recognize each other’s position and viewpoint, and hopefully reach acceptable terms of settlement. This typically involves a payment being made from one party to another, but not always. There are certain instances where a dismissal of the matter, remedial action, or some other relief is a more appropriate outcome for reaching a settlement.
We often tell our clients that the mediator “gets to play God for a day” not because he or she gets to decide who wins, but because he or she gets information from both sides and is made aware of all facts and arguments from every party. The mediator knows what both sides are thinking, and often finds that the parties are not as far apart in their objectives as they perceive. Both parties typically send what is referred to as a “Confidential Mediation Statement” to the mediator a few days prior to the mediation. This statement lays out the case/conflict from that party’s point of view, along with any obstacles or perceived hurdles to settlement. As a “confidential” submission, the mediator must keep the information contained within the parties’ Confidential Settlement Statements confidential, unless the party agrees that a specific piece of information may be disclosed to the other side. There are times when that information can be helpful, but the information is disclosed only after the mediator receives express permission to share it. In essence, the mediator gets to hear all of the information from both sides, then works to bring the parties together to reach a settlement. The mediator usually points out the strengths and weaknesses of the case to both sides and shares any pertinent information from his or her own past experience that may be helpful.
When does mediation occur?
There are certain “pause points” during the life of any litigation matter during which it may make sense for the parties to attempt a mediated settlement. For example, sometimes the parties may agree to what is known as “pre-suit mediation,” which happens even before a lawsuit is filed. This may be a way for both sides to avoid expensive discovery and investigation. An initial pause point may occur prior to the lawsuit if both sides believe they have sufficient information to try and resolve the matter without the heavy expenditure of resources for litigation.
After a lawsuit is filed, the parties conduct initial discovery, which involves the exchange of written information and documentary evidence. Discovery is designed to encourage the full exchange of information. In other words, both sides are expected to “lay their cards on the table.” “Trial by ambush,” or surprise, was abandoned years ago. Today, the rules are written to encourage the full and complete exchange of information. After completion of initial discovery parties will consider whether enough information has been exchanged to allow both sides to accurately evaluate the case and to work toward a resolution. Although a pre-suit mediation is always an option, the more typical first pause point occurs after the lawsuit has been filed and initial written discovery is completed. If more information is needed, parties may take depositions, which is oral testimony taken in front of a court reporter, who will in turn prepare a transcript of the testimony. Mediation is also common after the parties have taken depositions of at least the primary players.
Sometimes the parties believe it is necessary to conduct in-depth discovery, including the hiring of experts and the taking of witness and expert depositions prior to mediation. One side may also believe they have a legal basis to end the lawsuit, or at least narrow the issues, so they will file a motion asking the court to rule as a matter of law that certain issues are not in dispute. A pause point can occur prior to the court’s ruling on such motions or, if the parties await that ruling, a pause point occurs once they see how the judge has ruled on those issues. They can also choose to mediate at that point.
A final pause point occurs right before trial, when both sides have developed all of their evidence and are ready to put the case to a judge or jury. At that point, the strengths and weaknesses of each side’s case are known to all of the parties and often this causes everyone involved to take one last look at the potential benefit of mediating the case instead of proceeding to trial.
Generally, there is only one mediation prior to trial, so it is important to judge the best pause point to engage in mediation. This is most often a judgment call made upon the advice of your attorney.
What actually happens at mediation?
At a mediation, both parties typically start out in a separate room with their attorney(s). If the parties are agreeable to doing an “Opening Statement” or “Opening Session,” then everyone meets together briefly in one room and the attorney(s) for each side provides a basic overview of the case. The client typically does not speak or interject. This allows both parties to hear what the other side’s attorney views as the major strengths of the client’s case as well as the weaknesses of the opponent’s case ending with the attorneys’ view of the likely outcome from his or her perspective.
Once the attorneys for both parties present their clients’ opening remarks, the parties then go back to their separate rooms—the party and his or her respective attorney(s). The mediator then commutes back and forth between the two (or more) rooms to discuss the case with each side, share information, seek clarification, ask questions, and try to get the parties to recognize not only the strengths but also the weaknesses of their claim or defense and ultimately reach a mutual compromise.
Things to keep in mind.
You should not expect to receive your “best day” at mediation. Nor will you receive your worst outcome. The mediation process is a formal process in which both parties will need to compromise to arrive at agreeable terms. Settling at mediation removes the risk of an adverse result at trial. An additional advantage of settling a case during mediation is that it precludes you from incurring future expenses and attorney fees associated with extended litigation or a trial. Experts, which are often required for trial and are paid by the hour at a premium rate, can be expensive. Attorney fees also often increase at a rapid rate the nearer a case gets to trial because of the extensive hours of preparation required to take the case to trial.
Another advantage of settling at mediation is that it allows you to put the matter behind you and move forward in your life. After all, a “compromise” is exactly that — it’s not going to be the best outcome possible, but it is, hopefully, one you are satisfied with and can accept. It is important to recognize that neither side “wins” a mediation. By design, both sides end up compromising to reach an acceptable settlement. You could also say, both sides “win” when a settlement is reached because the stress and uncertainty of a trial is avoided, and both sides are able to put the matter behind them.
In the event your case does not settle at mediation, the litigation process will continue, and the court-imposed deadlines will need to be met. Be sure to hire an attorney who is ready, willing, and able to take your case to trial, if it becomes necessary. Not all attorneys are created equal. If you need an experienced attorney to help you navigate the litigation process – call us The Nice Law Firm at (317) 269-3500. We have a litigation team with decades of experience, and we would welcome the opportunity to speak with you about the specifics of your situation.
If you ever need help navigating your criminal charge, call The Nice Law Firm at 317-269-3500. We’re here to help!
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