Mediation / Alternative Dispute Resolution (ADR)
Did you know that most civil lawsuits settle without a trial? Did you know that you do not have to always try your case in court in order to solve your dispute? There are other strategies for settling disputes called Alternative Dispute Resolutions, also called ADR. ADR is a general term which includes mediation, facilitation, and other out-of-court strategies for resolving cases without going to trial. ADR allows the parties to play a more active role in resolving their dispute in a more informal setting. Cases can usually be resolved more quickly when ADR is used.
In ADR, trained, impartial persons decide disputes or help parties decide disputes themselves. These persons are called neutrals. Neutrals are normally chosen by the disputing parties or by the court. Neutrals can help parties resolve disputes without having to go to court and follow the formal courtroom procedures. You often have more time and flexibility to fully explain your side of the case using ADR than you would in court.
One of the most popular forms of Alternative Dispute Resolution is mediation. Mediation is an informal process in which a neutral third party – known as a Mediator – helps you and the other party reach an agreement on some or all of your differences. In the mediation process, the mediator helps the parties identify important issues, clarify misunderstandings, explore solutions, and negotiate a settlement rather than having a costly and time-consuming trial. In mediation, decision-making by the parties must be voluntary, so only those issues upon which both parties can agree will be included in the settlement. Click here for a list of Allen County mediators.
Allen County offers a program for low-cost mediation services to families who are involved in divorce or paternity cases and are unable to pay for private mediators. In such cases, if you meet financial eligibility requirements, you typically only have to pay a small fee. To learn more about how you can receive assistance with mediation costs, contact your lawyer or court staff at (260) 449-7258.
Advantages of ADR
- You and the other party maintain more control over the resolution of your own problems.
- Disputes can be settled promptly. A mediation session can be scheduled as soon as everyone agrees to use mediation to resolve your disputes, even before a lawsuit is filed.
- ADR costs can be significantly less than taking a case to court.
- ADR can promote better relationships through cooperation, creative problem solving, and improved communications.
- Resolving the case cooperatively helps avoid further conflict and involvement of the children.
- Parties are more likely to abide by agreements that they create themselves.
- In most types of ADR, settlement is entirely voluntary. If you cannot reach an agreement on all the issues, you still have the right to take your disputes before a Judge.
Disadvantages of ADR
- ADR may not be suitable for every dispute.
- Some forms of ADR are binding. This means that, the parties may give up certain court protections, including a decision by a Judge or jury under formal rules of evidence and procedure, and review for legal error by an appellate court. If you are not sure if the ADR method you are using is binding, be sure to ask the neutral this question.
- There generally is less opportunity to find out about the other side’s case with ADR than with litigation. ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute.
- The neutral may charge a fee for his or her services.
- If a dispute is not resolved through ADR, the parties may have to put time and money into both ADR and a lawsuit.
- Lawsuits must be brought within specified periods of time, known as statutes of limitations. Parties must be careful not to let a statute of limitations run out while a dispute is in an ADR process.
Because of these advantages, many parties choose ADR to resolve a dispute instead of filing a lawsuit. Even when a lawsuit has been filed, ADR can be used before the parties’ positions harden and the lawsuit becomes costly. ADR has been used to resolve disputes even after a trial, when the result is appealed.
Are you in conflict with a former spouse over parenting time schedules? Cannot agree with the mother or father of your children over child support? Always battling with your ex about the kids’ extracurricular activities?
Try MEDIATION To Resolve Your Conflicts.
What is mediation?
Mediation is a cooperative, confidential process conducted in a safe and structured setting by a neutral facilitator who helps people negotiate a mutually satisfactory resolution to their family law issues, e.g., divorce, property distribution, parenting arrangements, child support, etc. The mediator (a neutral facilitator) is trained in conflict resolution and guided by state statutes on alternative dispute resolution.
For people disagreeing over such issues, how does mediation work?
The mediator listens to each party tell his and her story, focusing especially on each party’s basic concerns and needs. The mediator seeks to move the parties away from fighting over past “hot points” to exploring what each can do to help the other be the best parent he and she can be for the welfare of their child or children. Mediation looks to accommodate parents’ concerns for the best interests of the children.
What are the benefits of mediating a conflict rather than going to Court?
Filing a suit with the court is always an option, but not necessarily the best first option. The reality is that Family Law Courts have very full schedules with long lineups of cases pending. The courts have limited time to give a full hearing to couples in dispute and often must render decisions based on limited time and information.
In contrast, the mediation process provides disputants with ample time to voice their concerns and to explain what each values in his or her relationship with the children.
Mediators are skilled in equalizing the “power levels” between the parties so each can feel confident in crafting an agreement that is fair and equitable.
Mediators can facilitate constructive communication between parties that serves as a model for settling future issues that are sure to arise.
The mediation process benefits when attorneys give their clients solid legal advice and assist their clients see the “big picture” and take a realistic approach to what is feasible for them. However, parties do not have to retain attorneys for mediation to be successful. (Cases without attorneys are called “pro se.”)
Mediation is generally much less costly than when disputes are litigated through the courts. In fact, the court will often require mediation as a first step before admitting a case. Mediator fees vary and are based on an hourly rate that is shared between the parties. (All mediators are required to complete a 40-hour certification course, whether they are attorneys or not.)
In short, when people agree to mediate their disputes, they are more motivated to reach an equitable resolution. Their agreement can be customized to their unique circumstances, and it is faster and less costly than going to court. It can far less adversarial than a protracted legal battle, and the children emerge as the winners when their parents keep the child’s best interests at heart.
Does the mediator settle a dispute the same way a Judge might?
Mediators do not have the authority to impose decisions or judgments on people. Mediators do not tell the parties what to do. Mediators help the parties reach an individualized agreement for their circumstances. This process results in the parties having more control over the outcome. Thus, it can also afford them a deeper sense of ownership over their agreements. Because the parties agree to the terms voluntarily, they are more likely to comply with them and less likely to use litigation to resolve violations of unforeseen issues.
Mediation takes place in a confidential and respectful atmosphere under the direction of an experienced professional. This makes it less likely that emotions will fuel an expensive legal battle. Mediation helps both parties solve their problems so they can spend their time and money in more productive ways.
How do I find a mediator?
In court a total stranger, the Judge, will decide your case. Often both parties will feel that they have “lost.” In mediation, you both agree on the resolution of each issue.
In mediation, parties work out an agreement in a respectful, confidential, and cooperative atmosphere. The law prohibits the use of any information exchanged during mediation from being used in a court trial or in any pre-trial discovery. This makes it more comfortable for each party to make offers and try to resolve differences. If no agreement is reached in mediation, what transpired at the mediation cannot be used in court.