The Future for Mediation
Mediation as a means of resolving litigated disputes has gained traction since the turn of this century. For those who are professional litigation managers, posturing and then preparing cases for mediation has become routine. For the occasional litigant, the possibility of a mediated outcome provides substantial cost savings and the ability to exert some control as an end game is played out. So mediation has aspects that appeal to the full range of those that are forced to resort to litigation, or the threat of litigation, to resolve problems.
As mediation has gained in popularity, it is still no better than the abilities of the mediator. There are really two different types of mediators. The first is the evaluative type, who eventually serve as a quasi judge/jury in working to bring the parties together. The second is the facilitative type. These mediators work to move the parties to an area of common understanding. Obviously, one mediator can serve in both roles given the particular case, and in fact one mediator may need to serve as a hybrid, in some circumstances evaluating and in other circumstances facilitating, all to the end of reaching a settlement.
The best mediators are those who see that they have a client in the process, and that “client” is the settlement of the case. In serving that “client” it is not lost on the litigants and their attorneys that the mediator has placed finding a solution to the problem at the highest level, and when that message is clear the parties and their counsel may find themselves more able to strike a compromise. In Illinois, the role of the mediator is moving towards institutionalization. Commonly, former judges have served as mediators due to reputations they built in their careers as problem solvers. Of course, some practicing attorneys foresaw the growth in mediation early in the wave, and have committed to full time careers as mediators. More recently, the Illinois State Bar Association has recognized a 40 hour mediation training program. The ISBA has made the program part of its continuing legal education program for practicing attorneys to enhance their skills and careers. In addition, the growth of mediation has led to development of the first rules of ethics applicable to mediators in Illinois.
Notwithstanding the growth in popularity of mediation, efforts to make the process available as a court ordered device seem destined to fail. Almost by definition, mediation is a voluntary process as it requires willing participants. Anecdotally, this writer is unaware of any successful “court ordered” mediation. If the parties could not decide to try and resolve their differences with the assistance of a qualified individual, how can they ever be expected to accomplish that when they are ordered to try?
No mediation will ever be effective unless all parties have been able to gather sufficient information on the variables that can impact on any litigated outcome. This fact prevents many matters from being effectively mediated until after suit has been filed and the legal processes have been utilized to compel the production of documentary and oral evidence. So to that extent, mediation remains dependent upon the litigation processes to be completely effective.
The real conclusion is that mediation will never be a substitute for litigation, but it will remain an important tool to accelerating resolutions through the end game stage. There is simply no legitimate argument to the substantial cost savings that mediation affords. The more interesting issues relate to the developing creativity of trained mediators and their ability to take matters that are at impasse and find manageable solutions in the face of impasse. Developing a binding high-low agreement; convincing the parties to submit to arbitration on a disputed fact and then return to complete mediation; reaching agreement on liability and submitting damages to binding arbitration, or conversely, reaching agreement on damages and submitting liability to binding arbitration; all of these and other solutions remain largely unexplored. However, to open minded parties and their counsel, the only limit to mediated resolutions is the imagination of the participants and the willingness to substitute risk with sound, reasoned decisions and commitments.
Quinn, Johnston, Henderson, Pretorius & Cerulo has made mediation a part of its practice since the process first presented in central Illinois in the mid 1980’s. The firm is familiar with both evaluative mediators and facilitative mediators, and of course, those mediators with the blend of both disciplines who are suited to the seemingly impossible cases. The author of this article has trained and serves as a mediator when parties make the request.
Originally published in the Fall 2009 edition of Quinn Quarterly.