The reasons are many. Please see the attached article from ADR & the LAW, 18th edition. I wrote this article nearly 20 years ago, when mediation in Illinois was really starting to become a part of the legal culture in most of northern Illinois. Both Cook County and the Federal Court in Rockford have since implemented programs, but the same basic principles still hold true. Perhaps foremost among reasons are the tremendous cost of litigation and the frighteningly unpredictable conduct of today’s juries. For more on this, please see the attached article titled “Whose Peers are These” I wrote for the Lake County Bar Association’s publication, “The Docket” in 2006′
The better question is really “why not mediate?” Because mediation is non-binding, there is very little downside compared to the numerous potential benefits. Even if unsuccessful, the parties to mediation usually walk away with an increased insight into their case and are thankful that they explored the possibility of settlement before commiting to the protracted battle ahead.
Judge or Litigator – who makes the best mediator?
Mediation is an art, not a science. There are great ex-judge mediators and great ex-litigator mediators, but the skills required of a mediator are significantly different than those required of a judge or an advocate. In choosing a mediator, background is significant in terms of the experience that a mediator brings to the table, but competence as a mediator is a separate, and more important, issue. Choose someone with training and experience – but more importantly – someone who has an aptitude for facilitating cooperation rather that advocating or ordering the parties to take a position. Although I have years of experience as a litigator – I understand my role as a mediator.
When to mediate?
Given the economics, the earlier to mediation, the better. Parties are constantly amazed by the cost of litigation. As a general rule, most cases are “ripe” to mediate after preliminary discovery has been completed, but before expert depositions begin. By that time, the attorneys should have a good understanding of the case and be in a position to sit down with a mediator before the significant costs start to pile up.
What about cost?
One of the reasons we have “alternative dispute resolution” is to avoid the growing expense of litigation. The cost for this service should not be prohibitive and should be consistent with keeping cost down. I believe my fees are in keeping with this principle.
How do we get started?
The easiest way is to contact Mike Weinzierl at Resolute Systems LLC is firstname.lastname@example.org or (800) 776-6060. Resolute will then open a file and contact all attorneys of record regarding scheduling and requirements. Feel free to call me at (815) 459-1001 or on my cell at (847) 530-6695 if you have questions.
What about submissions before the mediation?
As you will be advised after the file is opened, we prefer that the attorneys, or unrepresented parties attempt to summarize the issues and their clients’ respective positions without presenting volumes of back-up documentation. Keep in mind that we will not be making any rulings on the case and will be able to discuss the issues with you at the mediation. Current “specials,” coverages, liens, offers and demands should always be mentioned. These submissions can be sent only to the mediator – or copied to all attorneys of record prior to the mediation session. If there are lien holders or other third parties with an interest in the outcome, please invite them to attend or to be available by phone if possible. I ask that submissions be submitted no later than 24 hours prior to the scheduled mediation. I encourage electronic submissions in Word, jpeg or PDF format.
Adverse counsel has suggested we use you as the mediator. Why shouldn’t my client be worried that you were suggested by the other party?
I hear this a lot. The fact is, the mediator can’t force anyone to do anything. You should want a mediator who is respected by the other side – remember, you are expecting the other side to be willing to compromise. The more comfortable they are with the process, the more likely that a spirit of cooperation will exist.
What if I have other questions?
Talk to me. Feel free to call me after hours on my cell at 847-530-6605 if you have questions.I’m always happy to keep attorneys and their clients comfortable with the process.
Michael E. Weinzierl
100 S. Wacker Drive, Suite 900
Chicago, IL 60606
(312) 346-3770, x125