Mediation: Questions & Answers, by Rick Wacker



layout image What is mediation?

Mediation is one type of alternative dispute resolution (ADR) recognized by Indiana's legislature and the courts to settle conflicts without going before a judge or having a jury decide the case for you. Mediation is a structured process in which a professionally trained person, called a mediator, meets informally with the people involved. The mediator is required to be an impartial and neutral third party. By using various mediation techniques, the mediator will try to help the parties agree on an outcome that avoids the need for litigation.

layout image What types of issues can be mediated?

Almost any type of dispute between two or more parties can be mediated. In some Indiana counties, judges will require the parties to try and settle their dispute by going through mediation before the case is heard by the court. Mediation is being used more and more to resolve issues relating to separation, divorce, or custody; business disputes; insurance claims; employment issues; eldercare and nursing home disputes; healthcare issues; labor negotiation and union disputes; governmental and environmental issues; congregational disputes and many other types of cases that used to have to go to court to be decided.

layout image Can a dispute be mediated before I hire a lawyer or file a lawsuit?

Yes. The Indiana Supreme Court has adopted a specific Rule to allow this. If the parties agree to try and resolve a dispute before a lawsuit is filed, they can agree to do so. Early Option Mediation saves money on lawyers and allows the parties to settle a dispute before they get too "set" in their positions. It also has the advantage of resolving the dispute quickly, before too much damage can be done to a relationship. Early Option Mediation does not extend the time in which a lawsuit can be filed, so you must still comply with the appropriate Statute of Limitations for your type of dispute. Early Option Mediation can be used in both Civil or Domestic Relations disputes.

layout image Who goes to a mediation and who makes the decisions?

Only the parties to the dispute are present at the mediation and they make all of the decisions. The mediator, as a neutral third party, does not make any decisions for the parties, although he may help them come up with creative solutions to resolve their conflict. Only with the consent of all of the parties, can someone who is not a party to the dispute sit in on a joint mediation session, although third parties can sit in on a caucus with one of the parties.

layout image How much does mediation cost?

The cost of a mediation will depend on the number and complexity of the issues to be resolved, the amount of time spent in mediation, and the training and experience of the mediator. Most mediators are professionals who were initially trained as attorneys, psychologists, educators, ministers, among other professions. Their hourly rate generally reflects this advanced training and their years of experience. However, mediation is almost always a faster and less expensive way to resolve a dispute. For further information on my fees, please refer to the "Fees" page on this website.

layout image Does mediation work?

Most experts agree that mediation is effective 85-90% of the time in resolving all, or at least some, of the issues involved. Even if every issue isn't resolved during the mediation, the process almost always reduces the number of issues to be decided by a judge or a jury. In many cases, discussion of the issues during mediation leads to more realistic settlement offers before trial.

layout image Does my lawyer have to be at the mediation?

That depends on the type of mediation. In a civil mediation, attorneys usually come with their clients. In a domestic relations mediation, about half of the time, the parties do not have their lawyers present - mostly because the attorneys know they'll have a chance to review any agreement that the parties reach before it's finalized. Also, if they come to the mediation, it only ends up costing their clients for the time they spend there.

layout image What are the advantages of mediation?
  • Control - one of the most important advantages of mediation is that you control the outcome of the dispute. And who knows more about the case? Certainly not your lawyer or the judge or the jury. Yet, a judge or jury will have to decide the case if it's not settled in mediation. They will be handicapped by only knowing what's allowed to be introduced as evidence in court. They probably won't hear the "whole story" since, under the Rules of Evidence, some important testimony may not be admissible. Even so, based on the information they receive, they'll decide the outcome of your dispute. Most lawyers will tell you that if a case is tried six times in front of six different juries, there will likely be six different verdicts. In other words, litigation is always a risk - and it's not one you can control. It's as if the parties were to sign a blank sheet of paper and then ask the judge or the jury to fill in the page with whatever settlement terms they think are fair. In mediation, you have the chance to control what's put on that sheet of paper.
  • Speed - most mediations are done in one day. Therefore, you have the opportunity to settle everything in a very short period of time instead of waiting months or even years for a court decision and then, perhaps, an appeal if the other party doesn't like the result.
  • Cost - compared with what it will cost you in attorney time for trial preparation, pre-trial discovery, negotiations with opposing counsel, the trial itself, and then possibly an appeal, a successful mediation can save you thousands of dollars. And since most cases settle "on the courthouse steps" after you've spent the money to prepare for a trial, early mediation can be a very cost-effective alternative.
  • Privacy - during a mediation, no one but the parties and their counsel are allowed to be present without the consent of the others. Also, everything that's said in a mediation stays at the mediation. Opposing counsel can't hold you to an offer of compromise made during a mediation - even if the mediation is unsuccessful. They can't come back later and tell a jury that you were willing to settle for something during mediation that you won't agree to now. In other words, if a mediation is unsuccessful, you won't be in any worse position than you were before the mediation.
  • Informality - mediations are informal. For most people, a court room can be a scary place. A mediation may be your first and best chance to sit down and talk to each other - to tell the other person how you feel about the dispute in a controlled and safe environment where you can work together to come up with a settlement that you both can accept. Often, during a mediation, people come up with creative solutions that wouldn't have been possible for a judge or jury.
  • Mediation can be a hard, exhausting, emotional experience! But you control the outcome. You know the facts and circumstances that are involved. And you are the best person to make any decision that affects how your dispute is going to be resolved. So what have you got to lose?
layout image What kinds of cases are best suited to mediation?
  • Mediation works best where there's going to be an ongoing relationship between the parties. For instance, if two businesses are going to keep working together, it makes sense to settle a dispute sooner rather than years later - in court where one side is going to "lose." Getting a dispute settled quickly also keeps feelings from hardening into an unwillingness to look for a creative solution to the problem. Another example of an ongoing relationship is the divorce situation where children are involved, since the parents are going to have to work together, at least to some degree, potentially for years to come.
  • When an "out of the box" creative solution is possible, that is a great case for mediation, since the process allows the parties to come up with their own solutions - ones that most, if not all, courts don't have the time or inclination to try to find.
  • Surprisingly, mediation can work well in disputes where emotions are running high. It's true that anger or a need to punish someone or get revenge causes people to file lawsuits. But, the chance to vent that anger and express your feelings in a face-to-face mediation can be a lot more satisfying than trying to do it from a witness stand in a formal courtroom setting, assuming that the judge would even allow it. The ability to confront the other person face-to-face in a mediation often allows people to get past their anger so they can focus on the issues, not their emotions.
  • Mediation is ideal for those cases where it's in everyone's best interest to settle a dispute quickly. Since most mediations are done in a single day, if there's a need for speed, either because of circumstances or finances, mediation is far better than the alternative - spending years in litigation.
  • Mediation can be very useful in cases where information needs to be gathered and evaluated before a dispute can be settled. When trying a lawsuit, years can be spent in just in the discovery process. Mediation, on the other hand, may provide a way for the parties to agree on what information is needed to settle the dispute and the best way to go about getting it. This may be as simple as agreeing to hire a neutral or technical expert and letting them put the information together. Once the key information is obtained, another mediation session may then resolve the issue completely.
  • The mediation process is ideal for keeping "private" things private. The settlement agreement is signed by the parties and the mediator. There is no public record or trial where other people can find out what happened.
layout image What kinds of cases aren't suited for mediation?
  • Not surprisingly, ones where there isn't going to be a future relationship. When one party is willing to spend as much money and time as may be required to "win," mediation probably won't be effective. Unfortunately, the reality is that after all that money and time has been spent, the case will still probably end up being settled - usually on terms that aren't as favorable as could have been negotiated earlier.
  • Mediation doesn't work well where one of the parties is intentionally trying to delay or avoid settling the dispute. This may be for business or other reasons, but dragging a case through discovery, trial, and possibly a couple of appeals is an effective, if expensive, way to keep from settling a dispute.
  • Mediation is also not a good way to get a lot of publicity or to try your case in the media. Since only the parties (or those allowed by the parties or the mediator) attend a mediation, there's none of the public spectacle of an open trial and the newspaper or other reporting that can come from that type of setting.
layout image Are there disadvantages to mediation?
  • One possibility is that the parties will agree to mediation and nothing will be settled - that it ends in impasse. This risk may not be avoidable if the court orders mediation before the case is allowed to go to trial. Nevertheless, if a mediation doesn't settle or at least limit the issues to be tried, then the cost of the mediation has only added to the parties expenses.
  • A somewhat greater risk is that while negotiating in a mediation, you may reveal your trial strategy or potential weaknesses in your case to the other side. However, this may be more imagined than real since the other side will probably find out what you're trying to hide during the discovery process anyway. And, as far as trial strategies go, most cases are not so unusual that the other side hasn't or won't anticipate what you're likely to do when the case is finally presented in court.
layout image Are there usually "ground rules" for a mediation?

No matter what kind of mediation is being held, some ground rules are common to both Civil and Domestic Relations mediations.

The first is that the parties treat each other with courtesy and civility. Letting the parties scream at each other or use obscene language doesn't settle disputes. The parties are asked to listen carefully to each other while they are in a joint session or any other time they are together. Essentially, they are asked to extend the same courtesy to the other party while they are speaking that they wish to have accorded to them when it's their turn.

The mediator should also explain that either party can, at any time, request a break or an opportunity to discuss something privately with their attorney.

If it is obvious that one or both of the parties may become emotional over the issues that are going to be discussed, then the mediator may ask the parties' preference or describe how he usually handles emotional issues.

The mediator should explain that while mediations are generally confidential, that is not the case when the mediator learns of child abuse or if a party reveals that they intend to harm themselves or others.

The mediator will act as a neutral third party and will not give legal advice to the parties, though general legal information may be provided. Parties are strongly encouraged to have their own counsel present or at least available to them by phone so that their interests and legal rights are protected. If a party is represented, their attorney will have a chance to review any settlement agreement before it is signed by a party.

The mediator should discuss his fees. This is required by the Indiana Rules concerning mediation.

layout image What types of cases are done in civil mediation?
ADA (Americans with Disabilities Act) disputesLand & Land Use disputes
Alternative Lifestyle disputesLandlord/Tenant disputes
Art disputesLegal Malpractice
Bioethical disputesMedical/Medical Malpractice disputes
Business disputesNeighbor disputes
Commercial disputesNeighborhood disputes
Community disputesOnline Mediation disputes
Congregational disputesOrganizational disputes
Construction disputesPartnership disputes
Contract disputesPersonal Injury claims
Cross-cultural disputesPolice disputes
Education disputesPostal Service disputes
Equal Employment Opportunity disputesProbate disputes
Employment disputesProfessional Fee disputes
Entertainment disputesPublic Policy disputes
Environmental disputesReal estate disputes
Estate Planning disputesSocial Security disputes
Franchise disputesSpecial Education disputes
Health Care disputesTrust Management disputes
Insurance disputesVictim/Offender disputes
Labor disputes (Management)Work Place disputes
Labor disputes (Employees)Worker's Compensation disputes
layout image What happens in a domestic relations mediation?

In a domestic relations or divorce mediation, the parties discuss issues involved in a divorce or issues that come up after a divorce has been finalized. Typical domestic relations issues that are mediated include:

Adoption issuesParenting issues
Alimony/Spousal Maintenance issuesPost-divorce issues
Custody issuesSupport issues
Divorce issuesVisitation issues
Family issues 

More specifically, here are some of the issues that may have to be considered in a typical divorce:

Parenting and Custodial Issues:

  • Type of arrangement - joint (co-parenting) or primary/secondary custody
  • Legal custody (decides religious, educational & health issues) vs. physical custody (care and control of children on a daily basis)
  • Amount of and type of custody time for each parent
  • Holiday issues - also birthdays of parents and children, Mother's & Father's Day, interaction with other relatives such as grandparents, etc.
  • Summer vacation issues
  • School holidays - Christmas, Thanksgiving, Spring Break
  • Medical care issues including orthodontics, accidental injuries, emergency room visits, etc.
  • School (private vs. public), extracurricular activities issues and post-secondary education issues
  • Moving out of state issues - visitation, cost of transportation, etc.
  • Religious education and/or training
  • Paternity issues

Financial Issues:

  • Temporary assistance
  • Special needs of children - medical, lessons, etc.
  • Retirement account issues
  • Life and health insurance issues - continuation, COBRA, maintaining children and spouse on existing coverage, uninsured expenses, medical savings accounts
  • Division of property - separate and joint property - inherited property
  • College expense issues - allocation of cost, limitation on obligation, identification of expenses to be paid by the parties, contribution by child, interrelationship with support, educational savings accounts
  • Bank accounts - checking and savings accounts, investment accounts, others
  • Debts - mortgage, credit cards, loans to or from relatives, etc.
  • Equity of home - may require appraisal
  • Disposition of home or whether it is going to be retained by one of the parents - quit claim deed required or refinancing of home to person retaining house to get other parent's name off the mortgage obligation
  • Child support payment - through the Clerk of the Court or withholding by employer
  • Treatment of bonuses from parent's employers
  • Inheritance issues
  • Stock options owned by parents
  • Issues regarding future earnings, promotions, etc. - consider also what happens if one parent is down-sized from their current employer
  • Educational issues re one of the parents - i.e. going back to school to get a better job

Other Issues:

  • Modification of Last Will and Testaments
  • Health Care Powers of Attorney
  • Powers of Attorney
  • Change of name of children, adoption issues
  • Effect of remarriage by either parent
  • Need for independent counsel or will just one party consult an attorney - which one?
  • Changing title to motor vehicles owned jointly
layout image In a domestic relations mediation, what are the different types of custody?

In a divorce where minor children are involved, the court considers two issues - "legal" custody and "physical" custody. The court must base its decision on what is in the best interest of the children. What each parent wants will be considered by the court. However, parental preferences will not control the court's decision. There are different types of custody that will be addressed in a divorce:

  • Joint legal custody: both parents share the responsibility to make decisions regarding a child's health, education and welfare.
  • Sole legal custody: one parent has primary control over decisions regarding the child's health, education and welfare.
  • Physical custody: measures the amount of time that a child or the children spend with each parent.
  • Joint physical custody: each parent has "significant periods" of physical custody. Physical custody must be shared in such a way as to assure the child "frequent and continuing contact with both parents."
  • Primary physical custody: the children will spend most of their time under the care of one parent, while enjoying visitation with the other parent.
  • Joint legal custody with one parent having primary physical custody: the parents share the decision-making responsibility, but the child resides a majority of the time with only one of the parents with the other parent having scheduled "visitation."

When issuing child custody and visitation orders, what does a court consider?

  • The court's primary concern is to assure the children's health, safety and welfare.
  • The custody/visitation award must assure that children have frequent and continuing contact with both parents after the parents have ended their relationship and encourage parents to share the rights and responsibilities of child rearing.

Where there is no threat of child endangerment, the two issues are considered equally. If there is evidence of domestic violence that could jeopardize the child's safety, a custody or visitation order "shall be made in a manner" that ensures the child's health, safety and welfare and the safety of all family members.

layout image What is transformative mediation and when is it used?

Transformative mediation is a form of mediation commonly used by businesses to resolve employee disputes. This approach emphasizes "empowerment" of each of the parties as much as possible, and "recognition" by each of the parties to the dispute of the needs, interests, and point of view of the other party. A Transformative mediator will follow the interests of the parties in structuring the mediation and will allow them to control the process to a greater degree than is typical in other types of mediation. Transformative mediation sessions are always done with the parties meeting together, since only the parties themselves can give each other the "recognition" that is a key element of workplace mediation. This type of mediation is the primary method used by the U.S. Postal Service for its REDRESS program.

layout image What are the different stages or parts of a mediation?

A mediation can usually be divided into six parts:

  1. the mediator's opening statement;
  2. the opening statement of the parties;
  3. the joint session;
  4. the private caucus;
  5. the closing and the agreement; and
  6. drafting the agreement.
layout image What happens in each of these stages of mediation?

We'll address each stage individually. Let's start with what the mediator will likely cover in his opening statement:

The opening statement is designed to do several things. First, the mediator will introduce himself to the parties. If the mediator was selected by the attorneys or recommended by the judge, the parties to the dispute may not know him. Usually, he will describe his background, his qualifications, and his approach to mediation. One key purpose of an opening statement is for the mediator to establish his neutrality - to explain that he is not there to offer legal advice to the parties or to make decisions for them. He will take care to explain that the duty of a mediator is to act as an impartial third party who will try to help the parties to come to an agreement based on their needs. He may ask if there is anyone else that needs to be present to resolve the dispute. Usually, he will establish that he does not know any of the parties to the dispute to show that there is no conflict of interest or any reason he can't be an impartial third-party. Next, it is normal to ask for a commitment from the parties to work in good faith to find common ground that might lead to a resolution of the conflict. Then he will describe the mediation process itself and explain why it usually works. Finally, the mediator will usually cover the "ground rules" for the mediation.

What about the parties' opening statements?

In a civil mediation, the attorneys for the parties may submit confidential case summaries to the mediator to review before the mediation. Whether or not this has been done, usually the attorneys will also make opening statements. The purpose is not only to give the mediator some idea of the background of the case, but also to provide information about settlement negotiations that have taken place. The individuals themselves may also be given a chance to make a statement. Such information will be helpful to the mediator in identifying issues that are important to the participants and to get a feeling for the relationship between the parties. If not covered by counsel, the mediator will ask when the matter is going to trial and ask about other deadlines that might affect the mediation. In a domestic mediation, the parties may give their own opening statement or counsel may do it for them. After the opening statements are finished, the mediator will cover the ground rules of the mediation itself.

What happens next in civil mediation?

In a civil mediation, generally the lawyers take turns describing the case from their perspective. This description may include the history of the dispute, facts they have discovered to date, and even how they intend to present the case to a judge or jury. They will often describe any settlement offers and the responses of the other party to their settlement offers if any have been made. Often this description will highlight the critical issues of the case and help the mediator identify the issues that must be addressed during the mediation. After this description, the parties usually separate and the mediator will spend the rest of the mediation going back and forth between the parties in what is called "private caucus" or just "caucus".

How is this different from a domestic relations mediations?

It may not be any different. If the parties to a domestic dispute can't sit down in the same room and work together on resolving the conflict, then they will separate and the mediator will go back and forth from one to the other conveying ideas, offers and suggestions from the other party. Sometimes, however, the parties can remain in joint session to work together to resolve the issues. When that is possible and appropriate, that usually controls how the mediation is handled. Whether in joint session or private caucus, the mediator will try to find common ground between the parties, and help them to develop a solution that they can both live with. He won't make any decisions for the parties, will not give the parties legal advice and generally, mediators don't try to guide the parties to any certain result. One of the advantages of mediation is that the parties come up with their own solution - one they can live with - one they have created. That usually is a lot better than going into court and letting a judge or jury decide the outcome. It is also usually a lot less expensive than having their lawyers battle it out in court for months or years.

What is the difference between a joint session and a private caucus?

As the name implies, a joint session is one where all of the parties are in the same room at the same time. This occurs during the opening statement and may happen later in the process during civil mediations. In domestic relations mediations, if the parties can sit and work together, the mediation may be done completely in joint session. If they can't, then they will separate and the mediator will go back and forth between the parties - what is called a "private caucus" or "caucus".

What are the "Closing" and "Drafting the Agreement" phases?

Any agreement on issues settled between the parties is written down by the mediator and the parties sign to indicate their approval of the agreement. In a civil mediation, the attorneys for the parties may want to draft specific language and will need to file the parties' agreement with the court to dismiss the lawsuit. In a domestic relations mediation, if the attorneys are not present for the mediation, they get a chance to review the agreements reached before the agreement becomes binding on the parties.

layout image What is income-based mediation?

For persons who may not have the means to obtain a mediator's services, I offer discounted mediation services for different income levels. Generally, the rates are based on the Poverty Guidelines (for a family of four) updated periodically in the Federal Register by the U.S. Department of Health and Human Services. For more information, see the "Fees" tab above.

layout image By using the information and materials on this website, what legal disclaimers do I need to know about?

On this site, you will find general information about mediation and the mediation services I provide. This website exists only for the purpose of providing information and it does not, nor is it intended to, provide legal advice. Since your individual facts and circumstances will determine the outcome of your case, you should consult an attorney or other professional regarding your individual situation. I am licensed to practice law only in the State of Indiana and the information provided here may not apply to other states. If you are seeking legal advice or other professional services, you should consult an attorney or other professional licensed in your state of residence regarding your individual situation before relying on, acting on, or refraining from acting on any information contained on this website.

Your use of this website and/or the transmission of information via this website does not create an attorney-client relationship. Please do not transmit information you consider to be confidential since unsolicited information received through this website will not be considered confidential or privileged. Since the Internet is not a secure environment, it is possible that your e-mail may be intercepted and read by third parties. Before accepting a new client, a "conflict of interests" review must be done to be sure that other persons or entities involved in your legal dispute have not already retained my services or previously been a client.

Since this website is for information purposes only, Wacker Mediation LLC will not be liable for any damages you suffer if you use it. This includes direct, incidental, consequential,indirect, or punitive damages arising out of your access to, or use of, the website. No prediction of results should be inferred from the information provided.

Despite attempts to keep all information on this site current, it may not reflect the most recent changes in the case law or Indiana statutes, rules, or regulations. All responsibility and liability for any damages caused by viruses contained within the electronic files located on this site are disclaimed.

More "frequently asked questions" can be found on the Indiana Association of Mediators website, on the Questions (FAQ) page.