By Steven D. Murphy
Prior to 1990, mediation was generally not available in Indiana State Court cases, or at least was rarely used as a means to attempt to settle civil lawsuits. Settlements were accomplished by communications between lawyers in the case at a pre-trial conference, or perhaps when they were at the same location for a deposition, or by telephone negotiations. The lawyer for the plaintiffs would generally make a dollar demand for settlement, and the defense lawyer would ultimately respond by making an offer, after consulting with his client or with an insurance adjuster. There would be some back and forth, and sometimes the case would settle, often very close to the beginning of the trial.
Indiana’s Rules for Alternative Dispute Resolution were adopted by the Indiana Supreme Court in 1991. Other states, such as Florida and California, had experienced success with the process, and had begun training mediators, who served as trainers elsewhere. Most Indiana trial lawyers were dubious that this method would be successful, and felt it to be an unnecessary obstacle.
Indiana’s first mediators were trained in 1991 and 1992. The first class of trained mediators were comprised of a unique group. Some were plaintiff’s lawyers, others were from the defense side. But most of the original mediators were veteran attorneys, ready to take on a fresh challenge, and in some instances, ready to make a career change away from adversarial litigation. Few were judges, although retired judges make up a significant number of present-day mediators, and they are respected for their already-established neutrality.
These early Indiana mediators, some of whom are still active in the profession, secured settlements at an unanticipated rate. What became apparent was that the mediation process was perfectly suited for success, particularly with mediators who were successful practitioners and who understood the value of cases. All of the elements for success were present: the decision-makers were “at the table” focused on the case at hand; the costs incurred at the point of mediation were relatively low for both sides, with significant costs to be incurred in the event that mediation failed; the informality of the process compared to the anticipated formality of the courtroom setting was attractive to plaintiffs; the desire (and sometimes need) for the plaintiffs to receive compensation now as opposed to waiting for the trial and appeal process to end; along with the existence of persuasive mediators and parties and counsel with a strong motivation to move the case to settlement. A majority of the plaintiff’s bar grasped that a successful mediation would often yield a better result for their clients than a trial, particularly in those cases in which liability was seriously in dispute, or where damages were minimal, either due to the lack of serious injury or to the pre-existing medical conditions of their clients. The mediation process was useful in providing a mechanism to resolve medical and other liens that often stood in the way of settlement. The insurance companies, in those cases in which insurance provided the funding for settlement, found in mediation a low-cost method to settle cases for a discount (sometimes small and sometimes large), and to close files and reduce their risk.
The success of these early mediations was obvious to the trial court judges who, in turn, encouraged mediation and sometimes require mediation in civil cases. The successful mediation of civil cases has done more to clear up the docket backlogs of Indiana trial judges than any other method, enabling the judges to spend more time on their other dockets. While successful mediation requires some compromise by both sides, the savings of cost and time, and the elimination of risk for both sides, has proved to be a winning combination.
If you would like more information on mediation, please call us at 317-585-8085 or 765-288-3651 or contact us here.