Mediation is an alternative dispute resolution method that involves an informal meeting assisted by an impartial third party (the mediator).
Mediation can be utilized to resolve various types of disputes, including business disputes, contractual disagreements, landlord-tenant conflicts, and more. In commercial disputes, mediation can enhance the likelihood of continuing the business relationship. Parties can voluntarily agree to mediate before or during the pendency of a lawsuit. Depending on the dispute, Judges often encourage, and sometimes order (or “refer”) your case to mediation. Participating in a mediation does not negatively impact a pending lawsuit. If your dispute is not resolved through mediation, the parties can continue with the case in court.
Why Mediate?
Mediation can be an efficient and cost-effective method for resolving disputes outside of court. The mediation process empowers parties to maintain control over the negotiation process and fosters a more amicable and constructive environment for dispute resolution. Mediation can save the parties effort, time, resources, and emotional stress by avoiding lengthy proceedings in court when practicable.
The Role of the Mediator:
Mediators are often retired attorneys or judges with experience litigating and/or presiding over various types of disputes. It is important to recognize that they are not the final decision-making authority and do not advocate for either party. Instead, their role is to objectively guide the parties through open communication, ensure everyone has a chance to voice their position and concerns, and encourage and assist parties in crafting their own solutions.
Advantages of Mediation:
Cost-Effectiveness: Mediation generally costs less than litigation as it is a more expedient process and involves fewer formalities.
Confidentiality: Mediation sessions are generally confidential, which allows parties to discuss sensitive matters without fear of public exposure.
Preservation of Relationships: Mediation can foster a cooperative atmosphere, making it easier for parties to maintain working relationships, which can be especially crucial in business disputes.
Flexibility and Creativity: Parties have more freedom to devise unique solutions tailored to their specific needs and concerns.
The Mediation Process:
The mediation process in Illinois is governed by the Uniform Medication Act, 710 ILCS 35. The parties can use mediation services such as American Arbitration Association or JAMS to facilitate the mediation process. Typically mediators will follow the AAA’s rules.
Selecting a Mediator: Each party will often propose a list of mediators and “strike the panel” until one is selected. If the parties are unable to select a mediator, the judge may choose for them from a list submitted by the parties.
Fees: Each mediator determines their own fees and policies. The parties often evenly split the cost of the mediator’s fees and any fees charged by service providers such as AAA or JAMS.
Exchange of Information and Documents: Before the mediation session, the parties exchange relevant information and documents, like the discovery process in court.
Preparation: The mediator may require the parties to submit information, documents, and a position statement to better understand the dispute prior to the mediation session.
Mediation Session: The mediator facilitates an information meeting where both parties present their perspectives and discuss potential solutions.
Agreement: If the parties reach a consensus, a written agreement is drafted, outlining the terms and conditions of the resolution.
Court Approval: The parties’ mediated agreement may require the court to enter a settlement order so the court may retain jurisdiction to enforce the agreement.