Before a case proceeds to mediation it is helpful if the parties with the authority to settle the dispute:
- Are willing to mutually explore a negotiated resolution as an alternative to litigation in court.
- Appear at the mediation and participate in good faith in the process.
- Have completed enough discovery and research about their case so that informed negotiation and decision-making can occur
Indiana Alternative Dispute Resolution Rule 2.7(B)(2) requires that:
All parties, attorneys with settlement authority, and other necessary individuals shall be present at each mediation conference to facilitate settlement of a dispute unless excused by the Court.
The parties are under no obligation to reach an agreement. In cases referred to mediation by a court, if the parties do not reach an agreement the mediator reports the lack of an agreement back to the court without any comment or recommendation. The parties can then resume traditional litigation, or may choose to explore further mediation in the future if they believe additional negotiations may be helpful.
If the parties consent, the mediator may also identify any pending motions or outstanding legal issues, discovery process or other actions which might facilitate the possibility of settlement. ADR Rule 2.7(E)(1)
If the parties reach an agreement it will be reduced to writing and signed by the parties and their counsel before the mediation concludes.
In Indiana, mediation is regarded as settlement negotiations. Rule 2.11 Offers of settlement, conduct, or statements made during the course of settlement negotiations are generally not admissible in evidence to prove or disprove liability. Statements may be admissible when offered for some other purpose such as proving bias or prejudice. Parties should consult with their own attorneys for relevant legal advice.
A mediation usually starts with a joint session in which the mediator and each of the parties are present with their attorneys. The mediator will make a brief opening statement setting the tone for the proceedings and explaining the process.
Each of the parties will then also be given an opportunity to make an opening statement. The purpose of this statement is to give the mediator a brief overview of the facts of the case and an idea of any settlement negotiations which may have already occurred. In cases where the parties are represented by counsel, the attorney for each party generally makes the opening presentation.
After the mediator and each party have given opening statements, the mediator will typically meet separately with each party and their attorneys. Each mediation is unique and there is no simple formula for the mediator to facilitate negotiations. Depending on the priorities expressed by the parties, the mediator may explore a broad range of concerns including legal, communications, informational, and relationship issues. The mediator is trained and skilled in assisting the parties to assess such issues and other potential obstacles to settlement. The mediator is not a decision-maker, and information shared with the mediator is confidential unless permission to share with the opposing party is expressly granted. Such confidential information may help the mediator to better determine what strategies may be useful in moving the parties toward an agreement. Confidentiality also allows each party a safe forum to talk about the legal and non-legal aspects of the case, its impact on them, and their ideas of what an acceptable settlement would look like. This opportunity often provides very valuable experience for the parties. The mediator will strive carefully to act with fairness, impartiality and equal treatment toward each of the parties and their attorneys.
If the parties reach impasse, on of the parties or the mediator will generally declare an impasse and end the mediation session. The mediator will then close the proceedings by thanking the parties and acknowledging their efforts to reach an agreement. The mediator will let the parties know that a report will be filed reflecting that no agreement was reached. The mediator may also discuss the option of scheduling additional sessions or procedures for obtaining and exchanging information which the parties may need before discussing settlement again.
If the parties reach agreement, the mediator will thank the parties and acknowledge their efforts in reaching an agreement. The mediator will then take steps to ensure that the parties’ agreement is clear and that all parties understand the elements of the agreement. The agreement should then be reduced to writing or otherwise memorialized. The written agreement can then be signed by all parties, or the agreement can be recorded and acknowledged by all parties orally.
Under Indiana law any person who wishes to serve as a registered civil mediator pursuant to the Indiana Rules of Alternative Dispute Resolution must register with the Supreme Court Commission for Continuing Legal Education and be an attorney in good standing. They must complete a forty-hour training course in civil mediation that is approved by the Commission, identify the types of litigation which they desire to mediate, submit an application, pay a registration fee, and meet continuing education and annual fee requirements.
It is assumed that the parties share the cost of mediation equally. If the parties come to some other arrangement, they must both let the mediator know in advance of the scheduled mediation session.
One of the great advantages of mediation is the opportunity to realize significant savings in litigation costs from the early and efficient settlement of a dispute. The mediator charges $250 per hour with a two hour minimum retainer paid in advance. Mediation sessions that are canceled less than ten days prior to the scheduled mediation session will be charged the minimum fee.
Most mediation can be resolved in the time period ranging from a half day to a full day. Each case is unique and the time required for mediation depends on a variety of factors including the complexity of the case, the legal issues involved, the extent to which settlement negotiations have been previously developed, and other issues of concern to the involved parties. The mediator is trained and skilled in facilitating negotiations to keep discussions moving forward toward possible settlement.
Mediation can usually be scheduled as soon as the parties agree to do so. The mediator must give at least ten days notice of the date, time and location of the mediation to the parties, unless the parties agree to a shorter period of time. Rule 7.3(A)(1)
The mediator will request that each party file a written confidential mediation statement for the benefit of the mediator that outlines the factual and legal issues in their case, and explains the party’s position with regard to settlement negotiations. This will enable the mediator to better facilitate productive negotiations at the time of the scheduled mediation session. The written mediation statement will be treated as confidential by the mediator and will not be shared with the opposing party.
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