Mediation – The Process
Mediation begins when the two parties have decided to resolve their dispute and agree to discuss ways to do so. This can be instead of a lawsuit, after filing or at any time up until a final judgment by the court. Mediation also works for situations that for various reasons are not good candidates for a lawsuit, including the desire for privacy, to protect a family member, complex relationships, or in situations where the parties are just entering a relationship – from a pre-nuptial to a new business partnership.
Since Mediation is focused more on communication between the parties and focused on aiding the parties explore issues, needs, wants and settlement options, there is less need for discovery and evidence. This means that the parties can enter Mediation very quickly – in days or weeks after deciding to do so, while a lawsuit will take many months to come to trial.
Most Mediation Sessions can be completed in one or two sessions of several hours.
The Mediator meets with both parties in a neutral environment where both parties are on equal footing. The Mediator is a neutral and does not favor or give legal advice to either side. Although I am an attorney, when I serve as a Mediator, I am not there as an attorney for either party. Parties may bring an attorney, or consult with their attorney before a final agreement; in many cases, neither party has an attorney involved in the mediation.
Joint Conference: This is one of the most critical parts of mediation. The parties meet with the Mediator, and the scope of the issue or dispute is framed, each party has a chance to speak and the issues are explored with guided communication and probing questions. The Mediator clarifies issues, reduces hostility and provides a chance for meaningful solutions to be explored.
Separate Caucus: The Mediator will meet with each party individually to discuss things they wish to keep private or not disclose in the joint conference, to explore their concerns and test solutions and options.
These may be repeated as needed.
Confidentiality: Anything discussed in Mediation is private and confidential. Anything discussed in mediation cannot later be disclosed in court or used in trial if no agreement is reached.
Agreement: The parties may come to an agreement on all of the issues or just some of the issues. The agreement is reduced to writing and spells out the agreement and the consequences if a party fails to honor the agreement. While the Mediator can facilitate exploring options, the Mediator, unlike a judge, has no power to impose an agreement on the parties.
The Agreement of the Parties can become a contract between the parties, can be submitted to a court as an agreed order or used in other ways depending on the nature of the case.
One-day Mediation, including preliminary communication and review, preparation, conference room and up to 3 hours of active Mediation, including the room, begins at $500 ($250 per side). Longer Mediations or multi-day mediations range from $500-$1200. Generally, both parties bear the cost of Mediation, though parties can shift the cost during settlement discussions.
For More information, see the Illinois Uniform Mediation Act(710 ILCS 35/1)