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Oftentimes, people are faced with serious legal disputes and seek an alternative to resolve them. Legal disputes can evolve into litigation, and a trial can be costly, tedious, and an emotional roller-coaster. One very effective alternative to a trial is Mediation. It is confidential and generally occurs more quickly than a trial. The court’s calendar may be congested with heavy caseloads. Mediation tends to be more cost effective, as well. Mediation puts the parties in charge of their own destiny, since they control the outcome. In Mediation, a neutral third-party, trained in bringing people together, leads the parties in negotiations toward settlement. The Mediator acts as a “shuttle diplomat”, moving back and forth between the parties in trying to fashion an agreed settlement. It is not the Mediator who controls the results of the Mediation, it is the parties. The Mediator attempts to guide the parties toward a voluntary settlement, so that the case is not decided by a judge or a jury.
Mediation generally takes place in a comfortable office situation, not in a courtroom. The parties have either elected to take their dispute to Mediation, or the court has ordered them to do so. The Mediator is selected by agreement of the parties. Mediators are usually attorneys, but the Mediator does not provide legal advice. The role of the Mediator is to find common ground for agreement to reduce and eventually reach a total resolution of the conflict. The Mediator does assist the parties in identifying statutes and common law, rules, regulations, policies and protocols that may affect a case. This provides the parties with information that helps them reach the right decision in resolving their differences. Parties are not only welcome, but are encouraged, to retain counsel for their Mediation, so that they can be advised of their legal rights and so that their counsel may assist the Mediator in preparation and filing of the documents necessary to put into effect the agreement reached by the parties.
Mediation is private and is not open to the public. The parties may enlist the assistance of knowledgeable experts such as appraisers, accountants, medical caregivers, mental health specialists, realtors, and other professionals with expertise. Those experts may attend the Mediation by agreement between the parties, with the approval of the Mediator.
If a matter is not resolved at litigation, then an innocuous report is filed with the court so indicating, and the parties can resume their litigation. When a legal dispute is resolved at Mediation, a private and confidential written Settlement Agreement is created to memorialize the terms and conditions of the resolution, and the court is advised of a resolution so that the litigation can be dismissed. Mediation is governed by the Indiana Rules for Alternative Dispute Resolution.
Mediation rules can be found here
J. Michael Loomis, Mediator and Attorney