A Time and Place for Mediation

One can hardly open a legal newspaper or bar journal publication without seeing advertisements for a former judge or experienced litigator featured for his or her ability to mediate a dispute.

Although I understand that the vast majority of cases settle before trial, I wonder if these peacemakers are being overused.

Have lawyers been so bombarded by the availability of these consensus-makers to the point that they have become a crutch for attorneys to prepare their cases - not for trial but for settlement?

Tort cases involve healers and warriors, but one can be all the healer he wants so long as he brings each opponent to its knees. That means preparing for battle at a trial. If the judge or the parties are willing to bring in a reasonable, experienced person who can resolve the case because their notions of the worth of the matter aren't all that far apart, then a mediator should have a crack at it.

But if lawyers are using them to avoid a trial because they no longer want to invest in the case and are willing to take less rather than wait for trial or because their litigating skills in a courtroom are a bit rusty, then it is for the wrong reasons.

Recently, I sat on two panels at an all-day program sponsored by the American Bar Association.

"A Love-Hate Relationship with Mediation" explored the good and bad of mediation. Throughout the day, "Mediation with the Masters" debated the pros and cons, the success stories and the failures of mediation.

Questions arose as to the skill of a mediator in trying to come to an agreement in the area of law in which he is not well-versed. Should mediators be certified? Are they required to be lawyers? Is continuing education required? How do you sift out their biases? What if a mediator goes beyond ethical bounds or uses questionable techniques in order to broker a settlement?

Does it force lawyers to focus on gamesmanship and intrigue instead of the facts and law of the case? Is it that easy to educate a person who just steps into the case at the eleventh hour after the attorney has been working for years on the matter?

I told the group that I view mediation akin to hugging trees and singing "Kumbaya." Mediation is a euphemism for taking less money. Instead, I prefer to fight the good fight.

As trial lawyers, we want a whole win and not relative happiness. I trust a jury to get my client a fair and just award. Mediation can make courtrooms obsolete while true trial lawyers argue for more courtrooms and against the vanishing trial.

Certainly, mediation can be useful involving issues where a collaborative process is needed.

Mortgage foreclosures, landlord-tenant issues, divorces, child custody battles - these litigants may find use in mediation.

But for tort clients, mediation may be helpful for those who are looking for more than dollars and cents. Take the case of Nancy Clay, a young woman who died alone in a high-rise blaze as firefighters were unable to locate her despite her telling the dispatcher her exact location. Still, because of the lack of clarity of the vanity address system years ago, she died from the extreme heat. Her parents wanted to know that her death was not in vain.

We mediated a settlement with the city of Chicago that set up a vanity address system that makes it safer for everyone in downtown high-rises. Computerized software tells the dispatcher the exact address of the building. So for those who don't know the address of the John Hancock Center, the Daley Center or the Willis Tower in the case of a fire or an emergency, firefighters will know. That's because of Nancy Clay.

More recently, a mediator helped a family achieve the justice it sought for their son , who died of alcohol poisoning at Northwestern University when the resident assistant on duty failed to recognize the deadly drinking party going on.

The parents are active in setting up a Red Watch Band program on campuses across the country and, now at Northwestern, to help train fellow students to recognize signs of alcohol poisoning and get the student help before it is too late. A trial probably could not have accomplished that result. Mediation did.

There is a time and a place for mediation. As long as lawyers recognize that justice and fairness remain paramount in the resolution of the matter, mediation is here to stay, so a couple of tips may be useful:

• You need a strategy. Define your goals going in. Is it settlement? Is it to educate the mediator? That will define the breadth of your opening statement to the mediator.
• Never mediate with the trial judge. Hire an outside mediator.
• Bench memos on the legal issues may be helpful to the mediator.
• Do not try your case through the mediation process.
• I will always make a demand with a number. It should not be a turnoff, but remember you can always go down; you can't go up.
• Push the envelope.
• Make the mediator work.
• Everything is driven by the client.