Mediation is a way to resolve disputes. The people who have the disagreement decide whether to resolve it and how to resolve it. Mediation uses a third party, called a mediator, to help the people try to resolve the disagreement. The mediator helps them talk about the problem, understand why they are in disagreement, consider how they might resolve the dispute, and find solutions that help all in the disagreement. The mediator does not make decisions for the parties nor does the mediator give legal advice nor financial or psychological counseling.
Mediation is especially useful for disputes concerning:
What happens in mediation?
Usually, the parties meet with the mediator in an office, typically around a table in a conference room. Only the parties and their attorneys attend, but you do not need an attorney unless you want one. (In some cases, such as family cases, lawyers usually do not attend.) Witnesses and friends do not attend. There is no court reporter or tape recording.
The mediator begins by explaining what mediation is and asking if anyone has any questions. The mediator then calls on each person, one at a time, to talk about the concerns that bring them to mediation. The attorney or the party may speak. The mediator may ask some clarifying questions and summarize. Then the mediator may ask additional questions of everyone. Once the mediator believes the matter has been discussed in sufficient detail, the mediator will ask everyone to focus on ways to resolve the dispute. The parties, with the mediator's help, will think of ideas and discuss whether they are feasible and helpful. The mediator may keep everyone in joint session for these discussions or may separate them for private discussions.
If an agreement is reached, the mediator will recite the terms to everyone and ask if they agree. If they do, the mediator will usually draft an agreement at the mediation and ask everyone to sign it. There may be additional documents that the lawyers need to prepare after the mediation is completed.
Privacy is one of the main advantages of mediation. What is said in mediation is generally not disclosed. The Uniform Mediation Act of Illinois makes mediation privileged with certain exceptions.
Another major advantage of mediation is control. Because all the parties to the disagreement must agree to any agreement reached in mediation, the parties retain control. No decision is forced on the parties. The parties are free to reject any resolutions suggested and to seek a trial or use other means available to them.
A third major advantage of mediation is the ability to design resolutions that fit the needs of the parties in disagreement. The more honest both sides are willing to be concerning what they need, the more creative the parties can be in designing a solution that meets their needs. A judge or jury may not have that creativity.
Mediation can help parties resolve disputes earlier. Resolving matters early saves time and money. Also mediation is less formal than court proceedings; many people find mediation less stressful.
The mediator may stop the mediation when in the opinion of the mediator, no further purpose will be served in mediation. Even where no agreement is reached, though, mediation can help to narrow the issues in dispute or outline possible resolutions to consider or help the parties plan for their next steps.
Because mediation is voluntary, if one party refuses to mediate, there will be no mediation. Also even though the parties come to mediation, there is no certainty that they will reach an agreement. Thus, there can be some lost time and money pursuing mediation but not reaching agreement. Also one party may use mediation to find out the thinking of the other party, without intending to work out an agreement.
Someone considering mediation should weigh the pros and cons. An attorney can help in deciding whether to mediate and if so, when. Many people believe that the risks are minor because you can always leave mediation and pursue whatever rights you had prior to starting mediation.
Mediators charge fees for their time and these fees are usually divided equally among the parties unless some other arrangement is reached. The mediators have listed their fees on the court-certified roster. Some mediators charge a reduced fee, depending on parties' ability to pay.
How do I find a mediator?
Many members of the DRI are trained mediators and are ready to mediate. If you are in the First Circuit, you can check the list of court-certified mediators. Mediators need not be court-certified; you can agree to the mediator of your choice. Lists of court-certified mediators should also be available in the office of the circuit clerk in each county in the First Circuit.
If you are not in the First Judicial Circuit (Alexander, Jackson, Johnson, Massac, Pope, Pulaski, Saline, Williamson, Union counties), see if the circuit clerk of your county has a similar list or if the court in your county has a mediation program. If not, try these resources: