A lawsuit can be an emotional roller coaster because by its very nature, litigation is adversarial. Whether you are the party that brought the litigation or the party that is defending it, it can weigh heavily on your mind until it is over.
There is a way, however, to avoid the stress of going to trial and to instead explore resolution of a lawsuit. The remedy is known as alternative dispute resolution (also known as ADR), based on rules that the Indiana Supreme Court adopted in 1992.
ADR has blossomed in the last 20 years. There are different formats for using ADR, and one of those is mediation. Mediation is not arbitration, which involves the parties using a private judge to make a binding decision after submission of evidence.
Arbitration has been popularized in professional sports and entertainment contract disputes. In mediation, it is the parties themselves who decide whether to voluntarily settle their case. Mediation is used in both civil and family law areas.
The presiding judge of the court where the litigation is filed can order mediation, and this is becoming more common. Most mediations, however, are suggested by the parties or their lawyers. There is even "pre-suit" mediation available, meaning the parties can submit their case to mediation before filing a lawsuit.
Once a mediation is scheduled, settlement is entirely voluntary, although it must be reduced to writing to be enforceable. The parties need only demonstrate good faith in participating. When a mediation doesn’t resolve the case, the parties still have the right to take their dispute before the court.
A party can benefit from mediation sessions even if a full agreement is not reached. Each party will hear firsthand the other side’s version of the circumstances leading to the dispute and test each other’s arguments, without risk.
Mediation is a confidential and informal process that relies on third-party neutrals to guide the parties in sessions where they don’t have to go to court, and they don’t have to follow strict, formal courtroom procedures. That neutral is known as a mediator.
A mediator has advanced training and has registered with the Indiana Supreme Court. Mediators can emphasize the importance of putting aside personal issues to keep the parties on track toward resolution. The settlement process in mediation can be partial, or it can include the entire dispute.
The success of mediation depends upon the level of cooperation between the parties, and whether and to what degree the parties are motivated to reach a settlement. The mediator merely suggests ideas that might promote settlement, shuttling back and forth between the parties like Henry Kissinger using shuttle diplomacy.
The atmosphere in mediation isn’t as contentious as going to court. Mediation is much less stressful than litigation. It requires less time and is less expensive than taking a matter to trial. The best thing about mediation is that the parties control the process and the outcome, not the judge and not the jury.
Whether it is the moral principle in a business dispute or the emotional issue in a family law dispute, getting it resolved allows the parties to move on with their lives. Settlement of a legal dispute brings closure and peace of mind.
Individuals and businesses alike can take advantage of the opportunity to resolve their legal disputes through mediation. Statistically, it is widely believed that 80 percent of cases submitted to mediation reach a settlement agreement. If you are locked in litigation and want to end it, ask your attorney about mediation.
Mike Loomis is a Fort Wayne attorney. He received his certification as both an Indiana civil mediator and an Indiana family law mediator in 1994.