DuPage County is leading the way in demonstrating that mediation can be a desired form of resolving disputes by drafting its own mediation rules and implementing them before other counties in Illinois. Article 14 of the Local Circuit Court Rules of the Eighteenth Circuit the creator of the Court-Ordered Mediation Program-became effective on May 1, 1996. These rules set forth the purpose of the mediation process, eligibility of certain types of conflicts for mediation, mediation conference processes, and other general mediation procedural rules. Along with some practical ethical guidelines, yet to be written into law, these rules regulate much of the mediation in DuPage.
This article will address some of the questions which are frequently asked in regard to mediation.
What is mediation?
Mediation is a voluntary process where opposing parties agree to allow a neutral third party to interpose and guide them through a process of continued discussion and negotiation with a view toward resolving the matter. The third person could be an individual mediator or two or more attorneys and/or experts representing each disputant’s interests. The mediator(s) may be chosen through a private dispute resolution agency or by court order.
Rule 14.01 of the 18th Judicial Circuit Mediation Rules, as implemented May 1, 1996, defines the purpose of mediation as a voluntary and confidential process whereby the neutral mediator assists the parties in identifying the issues, fostering joint problem-solving, exploring settlement alternatives, and reaching an agreement.
The mediator’s role is to facilitate discussion between the parties so that they may formulate their own agreement. This process allows the clients to express their positions and their interests directly to the opposing side, where the mediator asks questions and rephrases the parties’ positions so that their underlying interests surface.
The process is confidential, which means that anything discussed remains private; the mediator may not be called in subsequent proceedings to testify as to what was said during the mediation, nor may the parties be required to testify about the session. According to the Honorable Ann B. Jorgensen, anything guiding the parties toward settlement must remain confidential.
Why choose mediation instead of litigation or other forms of ADR?
In litigation, communication directly between the parties is rarely, if ever, permitted. Litigation involves very little client participation; the attorneys plead the case, and a judge and/or jury decides who wins and who loses, all of which is open to the public.
Arbitration, another form of ADR, requires the parties to abide by the decision of an impartial third person who makes her decision after hearing each sides’ arguments. This form of ADR takes the case out of the parties’ hands and places the ultimate decision in someone else’s grasp.
Arbitration is like litigation; one party wins and one party loses. Also, according to DuPage County Arbitration Rule 13.08, a party who is not pleased with the award given by the arbitrator may reject it, whereas there is no appeal allowed from a mediation settlement.
Mediation allows the parties to fashion their own agreement that they must follow. When the parties are able to come to agreement through mediation, they can define a "win" for themselves.
There are also some subtle differences attorneys should note. Mediation Rule 14.04 allows the parties to limit discovery to the development of the information necessary to facilitate a meaningful mediation conference, which significantly limits costs to the parties, whereas arbitration and litigation generally require discovery to be completed, incurring more time and expense than may be needed to settle.
According to Anne Swanson, Arbitration/Mediation Administrator for the 18th Judicial Circuit, discovery is stayed pending the mediation conference, which requires the parties to be comfortable with the level of discovery they have. If the mediation session does not end in agreement, discovery may be reopened, whereas discovery may only be reopened after arbitration by leave of court. This translates into lower costs for the mediation; the parties only complete that amount of discovery with which they feel comfortable to move forward, whereas arbitration requires all discovery to be completed.
Also, the amount of time parties have to present their cases differ among the forms of ADR. While arbitration or litigation often have strict time constraints, mediation allows the parties to agree on the time they wish to spend settling the case. DuPage County Arbitration Rule 13.03 provides that mandatory arbitration is limited to two (2) hours, whereas the mediation session may last from one (1) to as many hours as the parties believe they need, even allowing the conference to continue if it becomes too late in the day.
Also, while litigation and arbitration involve a judge, jury and neutral third person(s) in the process, mediation affords the parties the opportunity to choose a mediator or co-mediators they believe will help them attain a settlement. Further, if the parties are not satisfied with the mediation session, they may schedule another session at a different time, or they may simply walk away from the process. Moreover, parties are not sanctioned for walking away from mediation, whereas DuPage County Arbitration Rule 13.06 provides that a party who fails to appear at the arbitration session may have an award ordered against him and may have costs imposed against him under Supreme Court Rule 91.
What if my case is in Mandatory Arbitration?
Attorneys still need to evaluate settling or mediating cases before it is scheduled for an arbitration session, just as attorneys need to do prior to trying a case. For example, in a small damages, but important, professional liability case, where numerous witnesses are present, it may be more cost-effective to try mediation rather than concerning oneself with completing all discovery prior to arbitration. If mediation is a potentially more cost-effective dispute resolution method than arbitration, attorneys should not hesitate to ask a judge to consider the most effective means of resolving a suit for their client.
What should attorneys look for in choosing the proper mediator(s) for their clients’ cases in DuPage?
Parties have more control over influencing the selection of a "neutral" mediator(s) than in any other dispute resolution forum where parties appear before a "neutral" such as an arbitrator or judge.
In the event that the suit is over $50,000, the court may order mediation according to Rule 14.05, which follows Supreme Court Rule 218.
Under Supreme Court Rule 218, all mediation eligible cases will go through a management conference within 180 days of filing, after such time cases may be assigned to Court-Ordered Mediation. If the case is assigned to Court-Ordered Mediation, then, according to Rule 14.06, the parties shall select a mediator. If the parties agree on the mediator the Supervising Judge shall enter the Order for the Mediation Conference. If the parties do not agree on a mediator, the court will appoint a mediator from its list of Certified Court Appointed Mediators.
Where can one look for mediators?
In addition to information provided by the DuPage ADR Center, information regarding mediators can be obtained by recommendations from members of the bar. Professional Mediator Lee Hugh Goodman suggests searching mediation training institutes like the Mediation Institute of America, the Chicago Center for Conflict Resolution, directories such as The Martindale/Hubbell Dispute Resolution Directory, the National Lawyers Association’s Mediation-Arbitration Section, the American Bar Association-Alternative Dispute Resolution Section, and Committee Members of DuPage’s ADR Section. Also, the Chicago area chapter of the Society of Professionals In Dispute Resolution (SPIDR), West’s Legal Directory, Sullivan’s, and CD-ROM list neutral mediators. Further, one may look to private dispute regulation organizations.
What options are available in choosing my mediator?
There are mediators trained for any type of dispute. An attorney’s decision to choose a mediator may rest on the type of training that mediator received, on the mediator’s track record, or on the mediator’s expertise in the instant dispute. The 18th Judicial Circuit maintains a list of Certified Court Appointed Mediators in the Office of the Chief Judge. The list contains people who have been trained to mediate any civil dispute in a 20 hour course by the Center for Conflict Resolution. Currently, there are 34 Certified Court Appointed Mediators on the list. The list contains the mediator’s name, their resume and their legal experience, which, in most civil cases, should provide sufficient information about the attorney.
Do mediators have different styles?
Yes. As attorneys become more cognitive about mediation’s different facets, they may want to probe deeper into the mediator’s persona to find out whether she or he is right for their clients’ cases.
Some mediation training programs train and require their mediators to conduct the process using one style, while other programs train mediators to vary their approaches when the situation dictates that they must. The professional backgrounds of the mediators are as diverse as the issues presented to them; some are accountants, some psychologists, and some are attorneys.
There are three main mediation styles typically employed in Illinois: facilitative, evaluative and co-mediation. The style(s) your mediator regularly uses is important when considering whether a mediator is the right one for your client’s case.
No matter what style the mediator follows-and there is a fine line between facilitative and evaluative-the attorney must remember that the mediator’s role is to explain to the parties why they are attempting to settle their case themselves, as opposed to allowing a judge, jury or arbitrator to decide the case for them.
Facilitative mediation exists as a tool to encourage parties to present and discuss their positions and interests directly to the other party. When the mediator follows this approach, she is making sure that each side is heard and is understood by the other. She asks questions and rephrases arguments such that both sides are clear on the issues to be settled. She does not offer her own legal advice, nor does she predict an outcome if the parties were to be in court. This style of mediation is also referred to as "empowerment mediation," which implies that the parties are negotiating a resolution for themselves, and the mediator’s role is to facilitate that process. This style requires the mediator to be creative and intuitive in order to keep the process running (making sure the discussions overcome impasses) until a settlement is reached. According to Marjorie Corman Aaron, in her book Mediating Legal Disputes, this style is best used when the parties feel as if they lack a sense of empowerment and they perceive barriers to the negotiation process.
Evaluative mediation allows the mediator to assist the negotiation process by focusing on the case’s value in litigation, offering her views on the merits of the case, and assessing an outcome if the case were to be adjudicated. This style presumes the mediator is capable of analyzing each side’s strengths and weaknesses. When the mediator evaluates the case, she forms judgments on the issues and influences what the parties believe to be a reasonable settlement range. Marjorie Corman Aaron suggests this style is best utilized when the mediator can confirm that both parties base their assessments of the damages on essentially the same discovered evidence and case or statutory law.
Co-mediation is a process whereby each disputant is represented by counsel who act in tandem to resolve the dispute. According to Carol McHugh Sanders, in her article Rush-Pres-St. Luke’s Hopes its Mediation Program is Contagious, it can also be described as the process where one mediator concentrates on the factual content of the dispute while another assists the parties in overcoming communication barriers by observing nonverbal clues and listening for underlying interests. For example, if the dispute concerned the mental health of one of the parties, one mediator, experienced in psychiatry or psychology could co-mediate the case with an attorney-one delineating the patterns of behavior impeding settlement, and one discussing viable options for settlement.
Another way to look at co-mediation is that a combination of legal expertise and/or scientific expertise are employed on both sides of the bar (plaintiffs and defendants) in order to facilitate agreement such as suits involving technical issues in construction or professional liability disputes. For example, in a complex construction dispute, the attorneys may want to choose mediators who possess knowledge and skill in that area, such as a construction expert or a mechanical engineer, along with a mediator with known facilitative skills to mediate the dispute. A professional will be more willing to resolve a case if a fellow professional is one of the mediators. In a mediation or co-mediation, both parties can agree that one of the mediators could be a mutually respected professional with expertise in the area at issue. Hence, co-mediation allows technical issues to be presented and discussed among various groups of professionals. For example, another co-mediation "neutral" combination could be a lawyer from the plaintiff’s bar and a lawyer from the defense bar working together as neutrals to resolve the suit.
In addition to mediation training and style, what else might attorneys want to know before choosing a mediator?
Aside from the type of style a mediator typically chooses, there are some subtle qualities an attorney may believe are the true selling points of a mediator. An attorney may want to know whether a mediator can maintain emotional distance from the issues. A mediator should feel comfortable manipulating people such that she can perceive the proper moments during the mediation where she should suggest how the parties can begin to move closer together in their settlement range. An attorney may want to know whether a mediator can react to parties’ hostilities in a way that allows them to vent their frustrations such that they will be able to focus on their true desires once they have released their surface tensions.
Attorneys should want to consider whether the mediator has settled disputes more often than not, and if possible, whether the mediator has settled disputes of the same character as the instant case. Attorneys must remember, however, that everything in the mediation session, including its possible settlement, is probably confidential. Attorneys can still ask the mediator about her success rate. Although finding references for your possible mediator may be difficult, as parties want confidentiality, it is important to acquaint yourself with the mediator’s reputation. Attorneys should not rely solely on the mediator’s reputation as an attorney, if she is one, because, while she may have never lost at trial and is considered a tremendous advocate for her client, it does not necessarily follow that she is a good peacemaker who can remain neutral throughout a mediation session.
How much can mediators charge for their services?
Compensation for mediators is not guided by any laws yet, and most mediators charge set fees for their services which are typically based on an hourly rate. After such time, the mediator and the parties may negotiate a fee rate bearing in mind the default rate is $150.00 per hour. Some mediators may ask for additional compensation if they arrange for certain facilities to be used during the session. The payment issues should be worked out in the form of a contract when the parties meet the mediator for the first time.
Are mediators held to some ethical standards?
There is much debate in the alternative dispute resolution area about whether mediators should be guided by ethical principles much the same as the legal profession. This concern stems from the fact that many more attorneys than previous years are becoming mediators. The question for this set of neutrals is whether attorneys can wear an advocate’s hat in one situation, and put on a neutral’s hat when mediating a case full of legal issues. The question non-attorney mediators ask is whether attorneys can ever be neutral at all, and if they cannot, where does that leave the mediation profession?
The DuPage County Bar Association has recently suggested Model Standards of Conduct For Mediators based on initiatives from the American Arbitration Association, the American Bar Association, and SPIDR. These Standards require mediators to recognize that parties choose to mediate their disputes because they can maintain self-determination throughout the process. This means that the mediator may provide information about the process and may explore options, but the mediator may not engage in the process if she cannot remain impartial. This includes avoiding the appearance of losing neutrality, disclosing actual and potential conflicts of interest, and mediating only those disputes which the mediator believes she has the competence to mediate. Further, the mediator shall inform the parties that the entire process of mediation shall be kept confidential. This means the mediator and parties may not testify as to anything that was discussed in the mediation session if the case ends in litigation.
What happens after the Court allows a case to be mediated?
If the parties enter an order of referral to Court-Ordered Mediation, and a mediator is agreed upon by both parties, a mediation conference is scheduled when the plaintiff’s attorney contacts the mediator, the ADR Center, and all parties. Written confirmation of the session is entered and acts as notice to all parties. Rule 14.06 allows either party to change this date by written motion. At the mediation conference, Rule 14.08 suggests that all parties, attorneys, and representatives with settlement authority be present. Since Court-Ordered Mediation is a voluntary process, one may assume that each person with a vested interest in settling the case would be present at the conference.
What role does the attorney have at mediation?
A meditation conference/session may be conducted in many and varying ways. An attorney should prepare his case for mediation. For example, the authors suggest pre-conference submissions should be prepared for the mediator such as statements of facts, theories of liability, expert reports and status of any concurrent litigation. An attorney should also prepare his client for the mediation. The client should be made aware that he may participate in the session, may ask questions of the mediator and other parties, and may vent his frustrations or exclaim his legal arguments. An attorney should, however, remind his client that he may want to preserve information for certain times throughout the mediation session. For example, each lawyer typically will have the opportunity to make an opening statement, where legal arguments and personal interests may be expounded. Afterwards, the mediator or the parties may also request a caucus, a private meeting with the mediator, where a party may make offers or disclose information to the mediator that the party did not want the other party to hear. Exhibits, legal documents, charts and case law to support the party’s case can be used any time during mediation to influence the other side, should the lawyer and his client choose to utilize them.
The attorney should also make sure the mediator has described her or his role in the process, the rules the mediator will follow, the role of confidentiality throughout and beyond the mediation session, and what happens when a case settles. Mediators typically begin with their opening statements describing their roles and what confidentiality means for this mediation. If the parties have not signed a "Confidentiality Agreement" at the start of the conference, they should sign one immediately after the mediator has described confidentiality.
According to Rule 14.10, if a settlement is reached through the mediation conference, the parties will reduce their settlement to writing in the form of an Agreement, signed by all parties, and the mediator will complete a Memoranda of Full Agreement. If the parties settle only part of the dispute, Rule 14.10 simply requires a Memoranda of Partial Agreement to indicate which issues have been resolved and which have not. If the parties do not settle, the mediator will prepare a Memoranda of No Agreement.
When the mediation is complete, the attorneys will file the proper Memoranda. When a Memoranda of Full Agreement is filed, the court case is no longer pending, and the matter is considered closed, so long as the party or attorney designated to file a consent judgment appears on the post-mediation conference status date, and the consent order is entered by the Supervising Judge. If a Memoranda of No Agreement or partial agreement is filed, the case will be reassigned to the original trial judge, or, according to Mediation Rule 14.11, may be reassigned to the Supervising Mediation Judge.
Attorneys should make themselves aware of the mediation process in DuPage County. The 18th Judicial Circuit has crafted rules which make mediation a self-determinative process, and allows the client to be active in his or her own case. Attorneys with cases in DuPage who believe their client’s case has a likelihood of being settled should consider mediation.
Rita Lowery Gitchell is a Principal of Alholm & Monahan, Wheaton. Her practice is concentrated in Professional Negligence Defense. She received her Undergraduate Degree in 1977 from Illinois State University, her Masters Degree in Speech and Hearing Science in 1979 from the University of Illinois-Urbana, and her Law Degree in 1985 from I.I.T./Chicago-Kent.
Andrew Plattner is a third year law student at DePaul University.
The authors thank Brigid Duffield and Anne Swanson, DuPage County Arbitration Administrator, for their assistance with this article.