What is Mediation?

Mediation is a good way to resolve disputes that senior citizens have including family matters, neighbors, merchants, and property matters.

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 psychological counseling.

Mediation is private. There is no court reporter to take down what is said. Only those involved in the dispute attend mediation, along with the mediator.

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. 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 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.

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 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.

What matters are good for mediation?

  • Disputes among family members, such as over loans or other matters;
  • Disagreements as to how to care for elderly parents or disabled adults, including disagreements over guardianships or trustees;
  • Disagreements over property lines or care of property;
  • Disputes about how to run a family business;
  • Will disputes;
  • Disagreements with merchants over services performed or products sold.

What matters are not good for mediation?

Where there is an institution or government agency involved, it is often hard to find someone who will agree to mediate. A person who is fearful of another should not mediate with that person. Someone who is impaired due to substance abuse or other causes should not mediate. If an older person is being physically or emotionally abused or if their finances are being exploited by someone else, seek legal advice or call the local elder abuse program. In Southern Illinois, call Shawnee Alliance (618) 985-8322 or 1-800-642-7773.

A lawyer can help you decide whether mediation is appropriation.

What if I need a lawyer?

Lawyers are available at no cost for those 60 or over for many matters through the Southern Illinois University School of Law Legal Clinic for the Elderly. Call 800-673-6130 to see when the clinic is taking clients and if your matter qualifies.

Other sources of lawyers:

  • Telephone directory
  • Illinois Lawyer Finder or call (217) 525-5297 (for referrals to private attorneys in Illinois; program offered by the Illinois State Bar Association)
  • If you believe you qualify for Legal Services Corp. funded programs for the poor, call 877-342-7891
  • Visit the Illinois Legal Aid site at http://www.illinoislegalaid.org/

How do I find a mediator?

You may use any of the mediators who are members of DRI or mediators approved by the court for mediation in the First Judicial Circuit (Alexander, Jackson, Johnson, Massac, Pope, Pulaski, Saline, Union, and Williamson counties.)

If you are not in the First Circuit or do not want to use a DRI mediator, you may find a mediator in these ways:

What does mediation cost?
There is no charge for the services of the DRI mediators. If they are not able to help you, try a private mediator. 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.