Mediation of Major Civil Cases

• What is mediation?
• What happens in mediation?
• What are the advantages of mediation?
• What are the disadvantages of mediation?
• Can we mediate before filing a lawsuit?
• May the court order us to mediate?
• If we mediate, do we need a lawyer?
• What kinds of cases are appropriate for mediation?
• When is mediation not appropriate?
• What does mediation cost?
• How do I find a mediator?
• How do I find a lawyer and if I cannot afford a lawyer, how can I prepare for mediation?
• I am a lawyer. What advice is there for lawyers on how to prepare for mediation?

What is mediation?
Mediation is a way to resolve disputes in which 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 or psychological counseling.

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. (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. In family cases, mediators usually write up the terms of the agreement and send those terms to the parties to review with their attorneys before signing.

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.

What are the advantages of mediation?
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 consent 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.

What are the disadvantages of mediation?
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 time and money lost 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.

Can we mediate before filing a lawsuit?
Yes, mediating early helps to save money and time. It also helps parties try to resolve the dispute before they get so far apart in their positions. But sometimes it is better to file a lawsuit first. For example, you might need information the other side has but will not give you; this could be information you could get in discovery, something that occurs once a civil lawsuit is filed. Or the other side might refuse to come to mediation, but after the lawsuit is filed, that party might be more willing - or a court might order that party to mediation.

A lawyer can help you analyze the pros and cons of when to mediate.

May the court order us to mediate?
After a lawsuit in a civil case is filed in the First Circuit of Illinois, a court has the authority to order the parties to mediate. Read the First Circuit Rule.

If we mediate, do we need a lawyer?
Mediators do not give legal advice. Mediators do not take sides. So the mediator will not be able to provide you with the advice that is best for you. Only a lawyer or other professional (accountant, etc.) will do that. If you need legal advice before mediating, see a lawyer.

If you believe you want to mediate, ask your lawyer about his or her experience with mediation.

What kinds of cases are appropriate for mediation?
The court regularly requires parents with issues about children to mediate. The court has the authority to order mediation in any civil cases.

Cases that are ideal for mediation are those where the parties must work together or have some on-going relationship after the dispute is over. Guardianship, will contests, business disputes, partnership disagreements are just a few examples. Mediation has been helpful in employment disputes.

Around 95% of all lawsuits resolve prior to trial. Mediation will often help the parties resolve the dispute earlier, saving time, money, and emotional stress. Thus, mediation is also useful in personal injury and malpractice cases.

When is mediation not appropriate?
A person should not mediate if the person feels threatened or unduly pressured or when that person's ability to make decisions is impaired due to substance abuse or other causes.

Other reasons not to mediate include the need to clarify the law, the need to make an impact or send a message to society, or the need to have public disclosure of the matter. A lawyer can help you consider the pros and cons of mediation.

Finally, because all parties have to agree to mediate, some matters are not mediated because one party refuses to mediate. In those cases, it may be best to file suit and ask the court to order mediation. Again, this involves some serious discussion with an attorney.

What does mediation cost?
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. For family cases, the court may determine that a party needs pro bono or free services and send the parties to a pro bono mediator. Talk with your lawyer.

How do I find a mediator?
Many members of the Dispute Resolution Institute (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. Lists of court-certified mediators should also be available in the office of the circuit clerk in each county in the First Circuit. Mediators need not be court-certified; you can agree to the mediator of your choice.

If you are not in the First Circuit, 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:

• For family mediator - Mediation Council of Illinois (MCI).
  
• For other mediators - try MCI or the telephone directory or ask your lawyer.
  
• For mediators associated with ADR services - see U.S. Arbitration and Mediation (U.S. A & M) or Pinnacle in St. Louis or any of several services in Chicago, including U.S. A & M, American Arbitration Association (AAA - they also offer mediation) JAMS, and others.
  
• Go to www.mediate.com for a referral.
  
• Go to Martindale-Hubble Dispute Resolution directory.

How do I find a lawyer and if I cannot afford a lawyer, how can I prepare for mediation?

• Go to http://www.illinoislegalaid.org/ to find information about the law and mediation.
• If you believe you qualify for Legal Services Corp. Funded programs, call 877-342-7891.
• To locate a lawyer in Illinois, go to www.Illinoislawyerfinder.com, which is maintained by the Illinois State Bar Association or call (217) 525-5297.

I am a lawyer. What advice is there for lawyers on how to prepare for mediation?

• Read a November 2002 ISBA Journal article entitled, "Mediation: A Nonadversarial Alternative to a Win-Lose System."
• Read a November 2002 ISBA Journal article entitled, "A Lawyer's Guide to Preparing Clients for Family Law Mediation."
• Also see an August 2000 ISBA Journal article entitled, "Preparing Your Clients for Parenting and Financial Mediation."
• Also see Cooley's Mediation Advocacy handbook published by NITA.
• Read the applicable court rules and statutes.
• Talk with other lawyers who have been in a mediation of a similar type.