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For the last several years, lawsuits filed in the Cook County Law Division of the Illinois State Court (i.e., primarily those in which a party is seeking to recover money damages only) have been subject to mandatory mediation. In other words, Law Division judges are empowered to order that certain cases be mediated within a specific time frame. For anyone who has not been involved in mediation, it is a confidential process whereby a lawyer, a retired judge or another neutral person trained in mediation helps facilitate a settlement. The mediator, who must be acceptable to all parties, does not determine the settlement amount, nor can he or she order a settlement or decide which party wins the case.
In light of the Law Division's successful mandatory mediation program, the Cook County Chancery Division of the Illinois State Court will soon enact a new rule permitting its judges to order parties to mediation. Chancery cases can involve injunctions, temporary restraining orders, claims for specific performance, rescission and reformation of contracts, actions to quite title, and declaratory judgments, receiverships, accounting claims, and dissolution of partnerships or corporations.
Why the New Rules?
More than 97% of cases filed in court settle before trial, and mediation provides an opportunity for earlier resolution. In addition, judges are always looking for ways to reduce the number of cases on their dockets.
Although they cannot act as mediators themselves, all Chancery Division judges have received mediation training to better understand the process. According to Chief Judge Dorothy Kinnaird, she and her colleagues are enthusiastic about the ability to order appropriate cases to mediation. Under the rule, once the parties have been ordered to mediation, they have three weeks to choose a mediator. If they cannot agree on a mediator, the court will appoint or assist in appointing one. The first mediation session must be held within five weeks of the date that the case was referred to mediation, and the process must be completed within seven weeks of the first mediation session.
Under the new Chancery rule, the judge decides whether discovery in the case (including depositions and written requests for documents and other information) will continue pending the mediation. Because all communications are considered confidential, neither the parties nor the mediator can be compelled to disclose to the judge (or anyone else) what was said during the mediation.
What Does This Mean for You?
For starters, ask your attorney to explain the mediation process and how it can be used to help resolve your particular case. Depending on the facts, the law that applies to your case, and your business needs and interests, you may decide to suggest mediation to your opponent—even before the court orders it. Because your case may ultimately be ordered to mediation, suggesting this alternative should not be viewed by your opponent as a sign of weakness.
Whether by choice or court order, if mediation is your decided course, the first (and most critical) step will be for you and your opponent to choose a mediator. It is not enough to find a "good" mediator. You and your attorney need to choose the right person for your particular dispute based on these essential qualities:
- Experience: In addition to finding someone who is certified by a respected mediation training program, look for an individual who has actually been in the trenches mediating cases. You may want a mediator with a background in or significant familiarity with the underlying substantive business or legal problems at issue. You may also want someone who has mediated disputes involving individuals or businesses similar to yours.
- Commitment to the Process: Mediation is a process, not an event. The best mediators understand this and are committed to seeing the process through—regardless of the obstacles.
- Patience: It takes a great deal of patience to effectively mediate a case. Some mediators are prone to throwing in the towel way too early in the process. Look for someone who is prepared to deal with the obstacles and is willing to flesh out the issues before simply "getting down to the numbers."
- Persistence: There is nothing worse than hearing a mediator say, after only a couple of hours, that "the other side is just not going to move any more" or "I don't know if it makes sense to continue." You want a mediator who knows how to strike a balance between forcing a settlement, and plugging away at the issues, reviewing all of the information and exploring every possible alternative before throwing in the towel.
- Excellent Listening Skills: The best mediators are good listeners who can remind one of the parties about an issue raised earlier in the session and use that information to conquer a settlement roadblock.
- Flexibility: Mediation is a fluid, unpredictable process. Therefore, a good mediator must be able to adapt his or her style to fit the situation.
- Fearlessness: Look for a mediator who is able to uncover the underlying agendas of the parties (and their lawyers) and is not afraid to talk about those agendas in an effort to reach a deal.
After you have narrowed the list of choices, don't be afraid to interview the candidates to get a better sense of how they conduct their mediation sessions and how they might handle certain situations that could arise during the mediation.
The bottom line: You can't do too much due diligence when choosing a mediator. Many of the attorneys at Much Shelist have significant experience representing clients in mediation, and some of us are also certified mediators. We are prepared to guide you through the process to help maximize the possibility of a successful outcome that will save you and your business the time and expense of ongoing litigation.
© 2010 Much Shelist Denenberg Ament & Rubenstein, P.C.About the Author
