Just a few short years ago, civil litigants had two basic choices to resolve their disputes. The first was to find a way to settle the matter between counsels and themselves or go to trial. Then mediation started to “catch on.” This is where a neutral party but not a judge, who is usually experienced in the issue at hand, tries at the direction of the court to help the parties reach an agreement themselves with their counsels’ assistance.
Later, the Indiana Supreme Court approved mandatory mediation before trial and found it was with a trial court’s authority to so order even if the parties did not want to go to mediation;1 part of the policy is judicial economy as many cases settle in mediation outside of trial and are efficient use of court time. Mediation is common and understood by attorneys but not as familiar to litigants.
This blog post explores three key tips to make the most of your mediation time. First, and perhaps most importantly, the process is an extended negotiation where the mediator pushes the parties to see other view points, with the advice of his or her counsel. At the beginning of the process, the parties positions are usually so far apart, that settlement seems impossible and this frustrates many litigants. However, mediation has a chemistry of its own and you should resist judging the process too early on. Statistically speaking, particularly in domestic cases, your case is likely to settle.
Second, to make mediation work, you should work with your attorney in advance and at mediation to figure out what you want and why, along with the strength or weakness of your case if it went to trial. It is very easy for litigants to become so focused on the litigation as its own matter they often do not know what they want or need to settle. Not knowing this before mediation reduces your chance of settling. Most all litigants want and need closure and mediation can provide it.
Third, as a practical matter, for mediation to work it takes having access and arrangements to talk with professionals, such as tax advisors during the process; this takes advanced planning. Also, mediation has its own rhythm and may not follow an ordinary calendar. Have food (a snack), medicine, and daycare planned for the day or into evening. Mediation is a give and take and for it to work takes time—some cases more than others.
Dixon & Moseley, P.C. advocates practice and handle mediations throughout the State of Indiana. This blog post is provided as general educational material. It is not specific advice or a solicitation for services, and should be thought of as advertising material. We hope you gain insight into mediation day by this blog.