By Mari O’Brien Birman
The mediation of disputes is an increasingly important option in today’s legal world. As a result, it is imperative as lawyers to have a thorough understanding of the process and its risks and benefits for clients. To gain some practical tips and information, I interviewed JAMS mediator, Justice Stuart E. Palmer, recently retired from the First District Illinois Appellate Court, for his insight and perspective into the mediation process.
Q: How did you become involved in mediation?
A: When I became a chancery judge in 2005, one of the first things I did was to attend the National Judicial College’s Civil Mediation program at the University of Nevada, Reno. When I returned to Chicago, I started settling cases. I settled my own assigned cases as well as cases assigned to other judges. Now I settle cases, as well as arbitrate, for JAMS, a nationally recognized provider of private dispute resolution services.
Q: What does a typical mediation process entail?
A: Most mediations last an entire day, and can even extend to additional days for the most difficult and complex cases. I have been told that 80% of cases that go to private mediation settle. A significant part of the mediation process is the caucuses—private meetings between one party at a time, that party’s counsel and the mediator. What is said in caucuses is confidential. It will not be repeated to the other side by the mediator unless a party gives the mediator permission to do so. Also, although litigators are used to aggressively advocating for their clients in court, the mediation environment puts counsel in a different role. There is no reason to persuade the mediator of the merits of your side of the case. The attorney works with the mediator and the client to find a negotiated resolution.
Usually, a mediation starts with a joint session during which the mediator introduces himself, explains the process of mediation, and most importantly, explains to the parties the many benefits of a mediated settlement. The parties’ counsel then may give an opening statement explaining their current settlement position. Of course, the joint session can be bypassed if the parties are too hostile. After the joint session, the mediation then usually breaks into the separate caucuses. It is during the caucuses, usually after several rounds of them, that settlement offers are ultimately made. Also, if the mediator thinks it is advantageous, after several caucuses the parties may be brought back together for additional joint sessions later in the day.
Q: In your view, what are some of the benefits of engaging in mediation for a client involved in litigation?
A: The caucuses between the mediator, a party, and that party’s counsel give the attorney an opportunity to have a frank discussion with his client and the mediator concerning the strengths and weaknesses of their case, as well as the strengths and weaknesses of their opponent’s positions. This gives a party the opportunity to evaluate the risks involved, which can result in compromise.
Another important benefit to a client is that the parties in mediation maintain control of their own destiny. That’s a powerful position to be in. Nothing happens in mediation unless it’s agreed to by all the parties. The opposite is true in the court system. By way of analogy, consider that participating in litigation is like walking your dog. As you stroll through the park you control your dog by holding onto the leash. When you participate in a mediation process you never let go of that leash, and the dog cannot go anywhere you do not want it to go. It might pull at you a bit, and you might compromise and vary your course, but you never lose control. On the other hand, when you submit the matter to a judge or jury, you have let go of the leash; you have relinquished control and there’s no telling where that dog may run.
Closely related to the idea of maintaining control, is the benefit of guaranteeing certainty in the outcome. Most experienced attorneys will never give their clients a guarantee, and that’s because there are usually no guarantees in litigation. When I was a chancery judge, was I always right? I did my best, but many have walked out of a courtroom in disagreement with me. Reversal on appeal is the exception rather than the rule. So, your judge may not like your case as much as you do, or a witness of yours may not do as well as you expected. There are many uncertainties in litigation, but there is certainty in a mediated settlement.
Mediation also avoids the costs of protracted litigation. Costs are not just money. There is the opportunity cost of one’s time—meetings with lawyers, depositions, attending court hearings, etc. There is also the crushing emotional cost of being involved in litigation. Of course, there is also the small matter of attorneys’ fees. Lastly, while litigation can drag on for years, a mediated settlement brings the matter to a close, quickly.
Q: What are some key tips for having a successful mediation?
A: I believe that the key to a successful mediation lies in giving the parties a clear understanding of the many benefits of a negotiated settlement. Another key factor is having an attorney committed to helping his or her client reach a resolution. A wise attorney who saves his client from a crushing loss or an inadequate recovery by way of helping to achieve a negotiated settlement acceptable to all parties, has done his client a great service.
Stuart E. Palmer is a JAMS arbitrator and mediator specializing in Business/Commercial, Class Action, Employment, Insurance, Personal Injury and Real Property disputes. He previously served for more than 20 years as a Justice of the Illinois Appellate Court and Judge of the Circuit Court of Cook County. Justice Palmer can be reached at email@example.com.
Mari O’Brien Birman is a member of the Women’s Bar Association of Illinois. She is also a law clerk at the First District Illinois Appellate Court.