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New Program Weaves Mediation Deeper Into Legal Scene
 

by Tom McCann

Chicago Lawyer, April 2004

 

Mediator Michael B. Getty has a special trick to get even the most recalcitrant parties to the negotiating table.

"I simply ask them how much they expect to spend at trial and how long they expect it to last," said Getty, a retired Cook County circuit judge who has been mediating cases since the mid-1990s. "I want them to have that dollar figure in their heads, those months, even years, of possible litigation.

If anything gets them talking, that will. "In a court system clogged with slow moving and expensive litigation, mediation is becoming increasingly popular as a way to resolve legal disputes. Scores of retired judges and top-flight litigators have set up mediation practices in recent years, handling everything from medical malpractice and labor suits to child custody battles.

Mediation is getting another big boost in April, when the Cook County Circuit Court begins its first mediation program for law division cases. Cook County will be the seventh circuit court in Illinois to set up such a program, in which a judge can order litigants to enter mediation before a case goes to trial.

The new program is the latest indication of how mediation has become a basic element in the Chicago-area legal scene since the mid-1990s, when the idea began to take hold here.

Clients like mediation because they get to have a say in the outcome and don't have a judge looming over them to impose winners and losers, experts said. Mediators serve as "neutrals," facilitators who give them insight into the law, let them know the strengths and weaknesses of their cases and try to get them to see common ground.

The price of mediation is also an attractive feature. An experienced mediator costs about $3,000 to $5,000 a day, with mediation sessions lasting anywhere from a day to a week, Getty said, compared to tens or possibly hundreds of thousands of dollars spent on a courtroom trial.

"You just get everybody in a room, the lawyers, the business people, the CEOs, everybody. You break the ice, get them to start talking back and forth. They've got nothing to lose by talking in a completely confidential, non-binding setting. You can't use information from a mediation against the other side at trial," Getty said. "That's what makes mediation so successful. Once the sides stop thinking like courtroom adversaries, they realize a deal is much more in their interests. They save tons of money, can get back to their business and get the lawsuit out of their hair."

Cook County joins in

The new court-sponsored program aims to use mandatory mediation for the more complex and high-stakes cases, like million-dollar personal injury lawsuits that can take up months of court and jury time, said Cook County Circuit Judge William D. Maddux, presiding judge of the law division.

The parties can either pick a mediator themselves or choose from a roster of certified mediators provided by the court. The civil mediators will be paid a base rate of $250 an hour with each side paying a proportionate share of the charge, Maddux said.

The first mediation session must be held within eight weeks of a judge's referral order, and the mediation must be completed within 15 weeks of the referral order unless the parties file a motion to extend the time period.

"The new program should bring a huge relief to the court system in reducing the caseload. This way, we ensure that only the cases that absolutely need to go to trial take up our time and resources," Maddux said. "A mediator has the time that a judge doesn't have. A lot of parties need to have a frank talk about their liability and how much they are at fault. That will often resolve the issue short of a trial."

Growing in Illinois

Chicago-area lawyers and judges are just beginning to tap the benefits of mediation as a legal tool. While mediation has a long history in states like Florida and California, the trend only began to gain traction in Cook County in the mid-1990s.

"Mediation just hasn't been part of the culture in Cook County. Lawyers and judges didn't understand it and distrusted it. However, that is beginning to change," said Daniel Graham, a partner at Funkhouser, Vegosen, Liebman & Dunn, who helped draft the rules for the law division program as part of a Chicago Bar Association initiative. "Lawyers and judges themselves are seeing just how successful mediation is and how it eases pressure on the courts. The movement has reached critical mass."

The federal court system has been leading the way. The 7th U.S. Circuit Court of Appeals instituted a mandatory mediation program in 1994 for all civil appeals and has an office of three fulltime mediators on staff. The U.S. Bankruptcy Court has a panel of volunteer mediators.

Graham said more and more state courts also have adopted mediation programs, including Will, DuPage, Lake and Kane counties. Winnebago County, which includes Rockford, has the oldest state court mediation program, begun in 1993. These programs have already mediated a combined 1,947 cases, with about 60 percent reaching settlements, according to a survey conducted by the Center for Analysis of Alternative Dispute Resolution Systems.

The Cook County program will make mediation even more mainstream, Graham said.

"This program takes away the last remaining stigma to mediation," he said. "Some lawyers think that asking for mediation is a sign of weakness on one side. An order from a judge can make both sides more comfortable."

Some of the judges who first helped to push mediation in Cook County are now private mediators themselves.

Donald P. O'Connell no longer has his robe and gavel, but he doesn't see his mediation work as being all that different from his former job as chief judge of the Cook County Circuit Court.

"It's everything I liked about judging, but without the administrative work, which I don't miss at all," O'Connell said. "As a judge, I spent most of my time doing settlement conferences, basically the same as what I'm doing now. In mediation, however, I have the time to devote myself singlemindedly to a case, and the informal setting gives everyone much more freedom to talk and let down their guard."

O'Connell retired in 2001. Since then he has started O'Connell Mediation Services and handles about a dozen mediations a year, including a $780 million dispute in 2002 over legal fees between Illinois and attorneys who represented the state in the national tobacco settlement.

O'Connell said a mediator can often get down to the nuts and bolts of a dispute. The parties also can trust a mediator more because he or she doesn't exercise any control over the case.

"You can have two parties at each others' throats in the morning and shaking hands on a deal in the afternoon," said O'Connell, who focuses on commercial disputes and tort cases. He said he holds mediations in neutral offices, hotel conference rooms, even O'Hare International Airport.

The process of compromise

O'Connell first has the sides make opening statements and asks a few initial questions with everyone in the room. Then O'Connell splits up the parties and engages in "shuttle diplomacy," where he goes from room to room, trying to get the parties closer to agreement. Sometimes the parties at first are millions of dollars apart, but he tries to move them to the center.

"It's not always two parties, but six or eight. You need a grasp of the legal and factual issues of the case and an understanding of the parties' bargaining positions," O'Connell said. "The difficult part is to cajole both sides into that gray area where they both must compromise. More than 95 percent of the time, I get them to settle. But even if they don't, the parties learn a great deal about their situation and what the case might look like at trial."

Being a good mediator also takes an element of psychology, said Abner J. Mikva, former chief judge of the U.S. Court of Appeals for the D.C. circuit and now a mediator with JAMS, the Judicial Mediation and Arbitration Service.

"Getting them to meet halfway is not always easy. The biggest mistake is trying to bring it to a head too soon," Mikva said. "It's like making soup. If you turn it on high right away, it will boil over. You have to let it simmer for a while. There is a bargaining that needs to take place."

Brian L. Crowe, former Chicago corporation counsel and now a partner at Shefsky & Froelich, has also been a parttime litigator since 1992, charging $495 per hour. He said the core of the dispute isn't always about the money.

"It might be about money on the surface, but often its about finding a way to continue doing business together, getting a job back, getting respect from the other side," Crowe said. "Also, a prime motivating factor is risk and the fear of the unknown. These lawsuits often take a horrible economic and emotional cost. The risk of having a huge judgment against you is enough to make you have nightmares. You use that fear to get them to settle."

Former Illinois Appellate Court Justice Gino L. DiVito does two to three mediations a month. He said mediation saves the most money when the parties are early in the discovery process, before the majority of the depositions.

"You need just enough discovery to have both sides understand their cases," DiVito said. "But the real cost savings occurs when you get them to mediate before the experts are deposed, before the long, drawn out court appearances, the dispositive motions. When that happens, the attorney fees skyrocket."

Mikva said certain cases are not likely to benefit from mediation, such as cases where one side sees a large money verdict in its future or where one side needs to prove a point and wants its day in court.

"However, for the majority of cases, mediation really works. Before any of the court programs started, lawyers in the area have increasingly resorted to mediation privately, because they realized just how good it can be," said Lynn Cohn, a professor at Northwestern University School of Law and director of the school's negotiation and mediation program. "Mediation is slowly being woven into the fabric of the legal community. Sometimes a case needs to be decided in court, but most of the time a mediator can end it before it gets that far."

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2004 Copyright, Chicago Lawyer.  Reprinted with permission from Law Bulletin Publishing Co..

"ACCORD" is a service mark of Accord ADR Services


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