The Indiana Supreme Court adopted rules providing for Alternative Dispute Resolution (ADR) a number of years ago. The idea behind an “alternative” system of dispute resolution was to give individuals and entities involved in a dispute a variety of means of resolving those disputes without having to file a lawsuit, or, even if a lawsuit was on file, an alternative to trial as a way of resolving the dispute. Among the alternatives provided for in the rule, mediation has proved by far the most popular. Mediation can occur both before and/or after a lawsuit is filed. This article focuses on the reasons why pre-suit mediation may be useful and worth the effort to pursue.

Disputes arise between persons and entities for all kinds of reasons and in all shapes and sizes ranging from something simple and involving relatively small amounts of money to hugely complex problems involving millions of dollars. Part of the equation that most of us consider when deciding whether or not to pursue a remedy when there is a dispute is the cost of the process involved in pursuing the remedy. Filing fees, attorney fees, and other costs are critical to this kind of evaluation. For a simple illustration, it wouldn’t make much economic sense to spend $2,000 in fees and costs to try to collect a $1,000 debt. Indiana adheres to the “American Rule” which provides that except in very specific circumstances, each side pays its own costs. In other words, one cannot recover the attorney fees and costs associated with pursuing their remedy in most situations. Another consideration is the highly public nature of a lawsuit filed in one of our state or federal courts. There are extremely limited circumstances which allow for preventing public disclosure of any and all of the allegations and materials associated with a lawsuit filed in a public court. Personal information concerning the dispute may suddenly become fodder for news articles and public discussion.

If unsuccessful in pre-suit mediation, a prospective litigant may still file a lawsuit; but if successful, costs are contained, privacy maintained and the parties to the mediation remain in control of their destiny since no judge or jury will decide the matter.

And perhaps as meaningful as any reason to evaluate the “costs” and risks of filing a lawsuit, it should be absolutely clear to anyone contemplating litigation that the filing party is no longer in control of the outcome. Our rules of procedure and the vast array of litigation tools insure that both sides have lots of weapons in the litigation war and that the ultimate decision will be made by someone else - judge or jury - and not the parties.

Pre-suit mediation is one mechanism that can address any of the above along with other issues not addressed in this article. As the term implies, engaging in mediation before a lawsuit is filed means that a potential litigant has not given up the right to sue but merely put it off pending the opportunity to try and resolve the dispute before it is filed. If unsuccessful in pre-suit mediation, a prospective litigant may still file a lawsuit; but if successful, costs are contained, privacy maintained and the parties to the mediation remain in control of their destiny since no judge or jury will decide the matter.

How does this work?

First and foremost, it takes “two to tango.” In other words, parties to the dispute must agree to the pre-suit mediation. One party cannot force other parties to participate against their will. Secondly, the parties must agree on the mediator and the process that will govern the pre-suit mediation. Where and when will it occur? Who may or must attend? What authority must be available at the time of the mediation? Most of these issues and others can be addressed with the guidance and assistance of a mediator if one can be selected by the parties to the dispute as a threshold matter.

If you have questions about pre-suit mediation, ask your attorney for more information and explore the possibility of resolving your dispute without going to court, public disclosure and added costs. If you don’t have an attorney, feel free to contact us for more guidance on this topic as well as other concerns you may have.

For more information about Doug and his practice, please visit his profile.