Mediation offers a way to resolve legal claims that is faster and less expensive than courtroom litigation. Judge Terry Brady, a retired Lake County judge, has been practicing mediation for the past 10 years. His 27 years on the bench have equipped him with a wealth of experience that allows him to bring people together to resolve a claim without the expense and time of a trial.
Mediation differs from arbitration or a courtroom trial in that both parties must agree with decision reached during the mediation proceedings. The mediator however, unlike a judge or jury, is not the decision-maker. There are 2 routes to the mediation process; the attorneys in a case can voluntarily agree to submit to mediation or a judge can order a referral to court mediation. In Lake County, once a case is on the mediation track, the attorneys on the case choose a mediator from a list of 47 court-certified mediators; the mediators are trained attorneys and a number of retired judges.
Once Judge Brady receives a mediation case, he sends the attorneys on the case a letter of engagement with available dates for mediation, his fees ($300/hour split between 2 attorneys or $375/hour split between 3 or more attorneys) and a schedule of submissions for the case. One of these submissions is the prehearing memo, submitted by each party, which can be accompanied with supporting evidence such as photographs, records and reports.
Judge Brady recalled his first mediation case which involved a discharged employee accused of embezzling money. The mediation began with all parties assembled in the same room. However, the opening statements quickly dissolved from opening statements to name calling as tempers flared. After that, Brady has kept the parties in separate rooms.
He has found that business and commercial mediation matters typically have a higher level of acrimony even though those relationships usually began with a higher level of trust, such as with a family business or a business partnership. The issues of money and perceived effort put forth towards a business venture are emotionally charged and can break up a business or partnership. Alternately, in a tort/accident case, the parties involved usually did not know each other before the claim arose (unlike a business/commercial venture), and such cases are usually not as emotional.
Besides, offering a faster and less expensive method to resolve a claim, mediation allows the parties themselves the benefit of “venting” or telling their story to the mediator. In a courtroom setting, a party cannot directly speak to the judge or jury except through their testimony. Mediation allows parties more access to the mediator and possibly the satisfaction of having their side of the story be heard.
Mediators act as risk managers as they seek to find common ground for all the parties to come to an agreement and avoid one side winning and one side losing. Additionally, in negotiations for mediation, the mediator can offer up his or her perspective as to how a claim would fare with a jury including such factors as the likeability of a party or possible perceived injustices of a claim.
In closing, Judge Brady offered some tips to the listening audience should they require the service of an attorney. He stated that attorneys have an obligation to thoroughly explain the case to their clients in language that is understandable. Moreover, attorneys are obligated to expedite their client’s case, wasting as little time and money as possible.