What is mediation?
Mediation is a process by which two parties sit down in a neutral setting, to attempt to work out differences. Mediations are moderated by “mediators,” who are supposed to act as neutral facilitators, providing information to each party as necessary, communicating offers between the parties, and guiding the process along to a possible resolution. In mediation, there is typically no resolution unless all parties agree.
What is “alternative dispute resolution”?
Technically, alternative dispute resolution, or “ADR,” refers to the use of any method of settling disputes outside of the courtroom. However, usually when courts or lawyers refer to ADR, they are speaking specifically of either mediation or arbitration.
What is arbitration, and how does it differ from mediation?
Many laypeople – and even some legal practitioners – confuse the terms “arbitration” and “mediation.” While they are often used interchangeably without much harm, and while there are some similarities, the two procedures are quite different in their scope and intended objectives.
- Mediation, as was stated above, is a process in which two parties sit down with a neutral third party (the mediator), and try to come to some sort of resolution on the matter at hand. A mediation is usually not required to (and very often does not) end with a final resolution of the legal dispute.
- Arbitration, on the other hand, is a process that is in many ways similar to a typical trial. There will be a person making judgment on the matter (the arbitrator), and both sides will be able to present their cases, where evidence will be presented and testimony heard. After arbitration, a decision will be entered by the arbitrator, as would be the case in a standard trial. While mediators play more of a facilitative role in the mediation process, arbitrators have much more of a decision-making role, and are not in the position to be the “go-between” for the parties in the way that mediators are.
Who orders mediation?
Mediation can come about in a variety of ways, but most mediations start in one of two ways. First, a court may (and often will) order mediation for parties as a step before actual trial. Second, mediation is sometimes mandated in a prior agreement between the parties.
Why do courts order mediation?
There are a number of reasons why a court may order mediation. Perhaps, as noted above, mediation was stipulated in a prior agreement between the parties, and the court is adhering to those guidelines. Perhaps the court believes that certain issues between the parties are best hashed out in a mediation setting, before moving to a full trial or final hearing. Another major reason that courts insist on mediation is that it tends to free up court dockets, and ensure that valuable court time is only used for those cases or situations that cannot be resolved out of court. There are many other reasons, of course, why a court could order mediation, but these are typically the main reasons.
If a court orders mediation, am I obligated to participate?
As with any court order, all referenced parties are obligated to comply with a court order on mediation. Some individuals feel that since mediation is not a “real court proceeding,” they are not mandated to participate. Others simply ignore mediation orders, believing that mediation is a waste of time, and that their failure to participate will be ignored by the court.
Both of these positions are wrong and dangerous. While it is true that mediation is an out-of-court proceeding, it still carries great weight with the court. Mediators and other professionals assigned to the process are often required to submit formal findings to the court on the outcome of mediation. Also, courts often approve the agreements that are produced in mediation, which means that the mediation product becomes an actual court order.
Do I have to come to an agreement at mediation?
Parties are not required to come to an agreement in their mediation. However, parties are – either by court order, local rule, or prior agreement – typically required to mediate in “good faith”.
What is the “good-faith” requirement in mediation?
Many state legislatures and local courts have created laws and rules that mandate “good-faith” participation in mediation. The good-faith requirement obligates the parties to deal fairly with each other, and to be genuine in their efforts to arrive at an agreement. While the good-faith requirement does not mandate that the parties come to an agreement, it does compel them to work towards one in earnest. What exactly that looks like will differ by mediation, and depend largely on local laws, judicial discretion, and the facts of each particular case. However, it will generally mean that a party to mediation cannot just show up to mediation, sulk in a corner, and reject all offers put forward by the opposing party without seriously considering them. The good-faith requirement also prohibits a party from merely showing up to the mediation only to fulfill a court order, in the hopes of pushing the matter to trial as quickly as possible, and with no intention of negotiating or listening to the other side. However, failing to reach an agreement, by itself, will usually not be seen as failing to act in good-faith.
What if an agreement is not reached at mediation?
It sometimes happens that the parties to a mediation are unable to come to an agreement. When that is the case, the likely outcome is that the court will direct the parties to a final hearing, trial, or the equivalent. At the final hearing, the remaining issues will be argued and decided by the court or other final arbiter.
Is there any way to skip or forego the mediation process, even if it is ordered by a court?
Courts take mediation orders seriously. Sending parties through mediation allows the court to save valuable time, and it ensures that if the parties ever do come into court, the matter in question has already been worked through to some degree, and court is only being used as a last resort. For these reasons, courts are usually hesitant to allow either of the parties to forego mediation process once it has been ordered.
However, there are certain situations in which a court might consider permitting a party to forego mediation. Some of these are as follows (this list is not exclusive): if the opposing party is not cooperating in the mediation process or is not acting in good faith; if there is a change in circumstances that warrants doing away with mediation; in the case of an emergency, or a situation where one party is facing the possibility of great harm, and immediate court attention is necessary.
NOTE
All legal references are made with respect to Indiana law. Please check the laws of your local jurisdiction if you live in another state.
The articles in this blog are for informational purposes only. No attorney-client relationship is established through the publication of these articles.
