The FAQ (Frequently Asked Questions) about mediation:
What is mediation?
Mediation is a way of helping people resolve conflict. It may be voluntary or court ordered, and is confidential and non-adversarial. It is not a court proceeding and does not compromise your legal rights.
Mediation is a structured process in which an impartial, professionally trained person, called a mediator, meets with the parties involved in a disagreement and assists them in reaching a solution that is mutually acceptable. In mediation, decision-making authority rests entirely with the parties. The process encourages the parties to discuss different situations and to explore creative options for resolving the conflict, ideally resulting in a 'win/win' outcome for the parties.
The mediator is the facilitator, the person who helps disputing parties come to an understanding and agreement.
What are the benefits of mediation?
- Preserves confidentiality
- Promotes communication and cooperation
- Empowers parties to make their own decisions
- Saves time and money
- Promotes exploration of creative options
- Preserves relationships
- Reduces hostility
- Circumvents impasse
When is the best time to try mediation?
The sooner the better, ideally before a disagreement has gotten to the point where the parties can't work together to find a solution. Mediation doesn't have to be a last resort. It can be used to break a deadlock in friendly discussions as well as hostile ones. You can seek mediation at any time, regardless of what other options are available or whether legal proceedings have started.
Not everyone may be ready for mediation at the same time. Some people need time to consider other options, seek more information, work around family, work or other commitments, or overcome emotions like anger and fear. Some court or tribunal processes may require mediation before the case can progress. As an example, many Indiana County Courts require mediation before a contested divorce will be put on the Court's docket. You should seek legal advice about your options at this stage.
What kinds of disputes can be mediated?
Mediation can be used in almost any type of dispute. Civil mediators can help resolve issues that would otherwise have to go to court, such as personal injury claims, property damage, contract issues, real estate disputes and conflicts regarding inheritance. Family mediators can help resolve divorce, custody and support issues as well as parent-child or family disputes, issues involving elder care, guardianships, family businesses, adoption, and premarital agreements. Mediation is also commonly used to settle workplace and employment disputes, labor/management issues, public policy and environmental controversies, health care and insurance disputes, and international conflicts.
Will mediation avoid going to court?
In many instances people choose mediation so that the dispute won't have to go to court, but the decision to mediate has to be a mutual decision by all of the parties involved in the dispute. If the mediation is successful and an agreement is reached and approved by the parties, then any legal action that has been filed can be dismissed.
How long does mediation take?
The answer to this question depends on the nature of the dispute and the complexity and number of issues to be resolved, although mediation almost always takes less time than litigation. Civil mediations between two parties can be resolved in as little as one day, while on the other hand, divorcing couples may choose to meet a number of times over a period of days or weeks to resolve all of the issues that must be considered.
What does mediation cost?
Mediation is almost always faster and less expensive than litigation. The cost of a mediation will depend on the complexity of the issues presented, the time spent in mediation and the training and experience of the mediator. Most mediators have professional expertise and were originally trained as lawyers, psychologists, social workers, human resource specialists, business professionals, educators, or ministers, among other professions. Their hourly rate usually reflects the training they have received and their years of experience.
Who attends a mediation? Can I bring someone with me for moral support?
The parties involved in the dispute will come to the mediation. In Civil mediations, their attorneys will come as well. In divorce mediations, the parties may have their attorneys with them, but this is not always necessary since their counsel will have a chance to review any agreement that is reached before it is signed and becomes binding on the parties. Generally, witnesses that would come to court do not come to mediation. With the consent of all of the other parties to the dispute, third parties may attend for moral support or to advise a party in making a decision.
How do I find a mediator?
IAM members who have met the IAM's qualifications are listed on the "Find a Mediator" portion of this website. These mediators have agreed to provide 30 minutes of interview time without charge to explain mediation and/or to conduct a preliminary review of your dispute. Mediators who have met certain qualifications established by the Indiana Supreme Court can also be found on the Directory of Registered Mediators on the website of the Indiana Supreme Court.
How do I find out how experienced my mediator is and what training they've had?
The simplest way is the most direct - in your initial interview or telephone conversation, ask the mediator what their background training is and how long they have been mediating disputes. A qualified mediator will not be offended by this question and should be more than willing to provide this information along with their hourly rates. Since there is no national training requirement or credentialing standard required to become a mediator, this has been left to individual states to regulate. In Indiana, to be listed on the Indiana Supreme Court's Directory of Registered Mediators, a person must meet the Court's training requirements and be approved to be added to the Registry. Thereafter, mediators must satisfy the Court's requirement for continuing mediation education to remain on the list.
How does mediation work?
For a more complete description of the process of mediation, please review the About Mediation portion of this website.
Is a mediated agreement binding on the parties?
A mediated settlement is not binding until it is signed by the parties. This means that if any party in the dispute is unhappy with the outcome of the negotiations, that party may choose not to sign a settlement agreement and instead, continue negotiating or proceed to arbitration or litigation. The process is completely flexible and negotiable by the parties, and any party may walk out at any time. This does not mean, however, that mediation is a free-for-all. The process is always governed by rules of procedure and conduct, which may be agreed upon by the parties or set by the mediator.
Do people comply with mediated agreements more than they do with Court decrees?
People tend to fulfill obligations created by mediated agreements, because:
- the parties themselves helped create the terms of the mediated agreement
- in most cases, people will keep their word when they have agreed to do something – this is not necessarily the case when they've been 'told' they have to do something by a court
- the parties have usually invested significant time and effort during the mediation
- they usually want to avoid further expense resulting from the dispute
- it makes sense not to test a fragile relationship or an agreement that has been reached during mediation.
What is Early Option Mediation (EOM)?
Early option mediation occurs where disputing parties agree to resolve the matter before a lawsuit or litigation is filed in a court. Rule 8 of the Indiana Rules for Alternative Dispute Resolution specifically provides for this pre-suit resolution of disputes.
How can I participate in Early Option Mediation?
The best way to resolve your dispute is to discuss this form of settlement with the other party(s) and find out if they are willing to do this. If everyone agrees, they should jointly contact a member of the Indiana Association of Mediators to discuss fees, and where and when mediation can be conducted. The parties and the mediator jointly make these arrangements. Rule 8 of the Indiana Rules provides a standard form the parties will need to sign to commence the mediation process.
Are there any drawbacks to Early Option Mediation?
No, and for that reason, EOM can be used almost as soon as the dispute arises. If the mediation is not successful, you will still have to file your lawsuit in time to comply with the appropriate Indiana statute of limitations that applies to the type of suit being filed. Participating in early option mediation does not lengthen or toll the time period you have to file a suit should mediation be unsuccessful.
What are the advantages to Early Option Mediation?
Saving time and money are the major advantages. Early option mediation saves the parties' time and money by resolving disputes before court costs and attorney fees are incurred. This is often critical in contract disputes where the contract is silent on who is to pay costs in the event of a dispute. In mediation, the parties are often able to arrive at more creative agreements than the Court would allow or award. The mediator cannot become a witness for either party should the matter not be resolved.
Can divorces be resolved with Early Option Mediation?
Early option mediation can be used before a divorce is filed. Even complex divorces where custody, support and property division matters are at issue can be resolved in early option mediation. EOM is best for couples wishing to divorce amicably and without large court costs and attorney fees. The mediator cannot become a witness for either party should the matter not be resolved.
What do I need to do once a mediated settlement is reached?
Once the dispute is settled in a way that is agreeable to all sides, the mediator and/or parties will draft a document outlining the terms of the agreement and stipulating how it will be implemented. It may be circulated and edited further if necessary. As stated earlier, the outcome of a mediation is not binding. Either side may reject a proposed settlement. If this occurs, the side objecting to the settlement may consent to work toward a new settlement, or may give up and proceed to arbitration or litigation.
It is important to note that mediated settlements are rarely rejected and mediation often leads to agreements that are more durable because the parties have participated in the process in which the agreements were reached. If both parties agree to and sign a settlement agreement at the conclusion of the mediation, the parties are bound to uphold that agreement. The settlement agreement is a contract and an action alleging breach of contract may be brought if the agreement is not subsequently honored. If litigation is pending, the settlement should be filed with the court so that it will be enforced without requiring a separate action for breach of contract.
How do I become a mediator?
The Indiana Supreme Court has established rules regarding the qualification and service of mediators who are listed on the Mediator Registry of the Court. There is a difference in the qualification of civil mediators (who must generally be attorneys in good standing in the State of Indiana) and domestic relations mediators (who must be college graduates). The rules also provide that a mediator must have 40 hours of relevant mediation training to be listed on the Court's Registry. See the official language in rule 2.5, sections A and B.
What do I need to do to maintain my status on the Supreme Court registry?
A mediator wishing to continue to be listed on the registry with the Indiana Supreme Court has to complete 6.0 hours of continuing mediation education requirements every 3 years, as described here in rule 2.5, section C.
Can I mediate a case without being on the Indiana Supreme Court Registry?
Yes, if the parties agree, they can select any mediator to handle their dispute. However, if the matter is in a court, the judge will have to approve the mediator selected by the parties or by their attorneys.
Are there different requirements in other states for becoming a mediator?
Yes, brief descriptions of the different state requirements can be found on the Mediate.com website.