BENEFITS OF MEDIATION
The Circuit Court Law Division Judges implemented the Major Case Court-Annexed Civil Mediation Program to offer parties involved in complex litigation an opportunity to explore settlement alternatives with a highly trained and experienced mediator. It is hoped that the mediation process will allow litigants to avoid the cost, expense and drain of a lengthy trial, with no guaranteed outcome. Parties determine their own destiny in mediation and they can often reach accord, with guidance from a skilled and qualified mediator.
Mediation may prove attractive for your case. It is a private and confidential process. At the first mediation session, all participants sign a Confidentiality Agreement, stating that all discussions and disclosures in mediation remain confidential. In mediation, parties can present their view of events to other parties, without the traditional constraints of the trial process. They often vent, clear the air and educate opponents as to case strengths and weaknesses, renewing settlement discussions in the process.
Unlike a judge, the mediator is not limited by ex parte communication. The mediator can meet (“caucus”) with parties and counsel individually, confidentially discussing underlying issues and concerns. In caucus, the mediator can gain insight as to the parties’ motivations and goals, then use that information to confidentially explore settlement options with each side, before any formal offer is made.
A successful mediation can salvage an ongoing business relationship between parties who would like to get beyond the present dispute and resume business relations. It can also avoid setting legal precedent, should such an outcome be undesirable.
Mediations typically demonstrate high success rates. Several circuits have reported that at least 50% to 65% of cases referred to mediation have resulted in either a full or partial agreement. A mediated settlement can save parties significant time, expense, and effort. Even if a settlement cannot be reached in mediation, many mediated cases settle at a subsequent judicial conference, still avoiding the time and expense of a later trial.
In the Circuit Court of Cook County, major civil cases seeking damages in excess of $30,000 are eligible for referral to the Major Case Court-Annexed Civil Mediation Program. Many types of cases have been successfully mediated, including:
- Personal injury litigation.
- Complex contract cases.
- Product and professional liability actions.
- Commercial litigation.
- Cases where parties wish to preserve an ongoing relationship.
- Cases with cooperative parties who have been unable to reach settlement on their own.
- Cases involving highly confidential or proprietary information.
- Cases where quick resolution would avoid serious economic harm to parties.
- Cases where a confidential settlement is desirable or where legal precedent should be avoided.
REFERRAL TO MEDIATION
Local Circuit Rule 20.02(A) allows the Presiding Judge of the Law Division, individual calendar judges and motion judges to order a case to mediation or the parties may agree to mediate any issue between them at any time during the litigation. An Order of Referral to Civil Mediation is entered by the court upon motion of the parties or on the judge’s order.
REQUIREMENTS TO INITIATE MEDIATION
The order requires parties to name their selected mediator or to designate a mediator within 21 days. If parties cannot agree upon a mediator, the court will appoint or assist in the appointment of a mediator.
Next, the parties should communicate with the mediator to coordinate all mediation scheduling. The first mediation should take place within eight (8) weeks of the Order of Referral and mediation should be concluded within seven (7) weeks thereafter, unless extended by leave of court.
Finally, counsel for each party should prepare and submit a case summary to the mediator at least ten (10) days prior to the first mediation session, together with copies of any relevant pleadings, unless some other type of summary information is requested by the mediator.
SELECTION OF THE MEDIATOR
The mediator may be appointed by the court or selected by the parties. Local Circuit Rule 20.03(A) allows parties to select and designate a mediator, who may or may not be on the list of court-certified mediators, within three (3) weeks of the court’s Order of Referral. If parties cannot agree upon a mediator, the court will appoint one from its list of certified mediators.
A number of attorneys have been certified as civil mediators in the Circuit Court of Cook County’s Major Case Court-Annexed Civil Mediation Program. The credentials for becoming a certified mediator are described in these Rules. (Local Circuit Rule 20.08.)
Mediator Résumé Books are available at the Mandatory Arbitration Center and in the Law Division assignment room, Room 2003 of the Richard J. Daley Center, for your reference in selecting a court-certified mediator.
SCHEDULING OF MEDIATION
Once a case is referred to mediation, the parties must call the mediator to obtain possible mediation scheduling and meeting dates.
With multiple litigants, it is often easiest to fax a calendar list of available dates to all mediation participants (including the mediator). They can each designate which dates and times are available, and return the fax to the attorney scheduling the mediation. This method avoids multiple phone calls and schedule changes, which can be frustrating.
The first mediation session must be held within eight (8) weeks of the court’s Order of Referral.
Mediations may be conducted anywhere the parties agree, either at the mediator’s office or the Mandatory Arbitration Center, 222 N. LaSalle Street, Chicago, Illinois 60601.
Mediation cannot be successful unless all essential players are at the negotiating table, ready to talk. Trial counsel must attend the mediation session, as well as each party or their representative with full settlement authority. If insurance is involved, an adjuster with authority to negotiate and recommend settlement should also attend.
COMPENSATION OF THE MEDIATOR
All fee arrangements should be made directly with the mediator, and should be fully discussed and agreed upon prior to the start of mediation. Unless otherwise agreed to in writing between the parties and the mediator, the mediator is to be compensated at the rate of $250.00 per hour, with each party paying a proportionate share of the total mediation charge. In the event that a person appointed with the assistance of or by the court declines to accept the appointment at a rate of $250.00 per hour, the court will appoint or assist in the appointment of an alternate mediator from a list of court-certified mediators who is willing to accept that rate.
PREPARATION FOR MEDIATION
Each party must prepare and present the mediator with a brief case summary at least ten (10) days prior to mediation, unless the mediator sets a different procedure. You must advise the mediator in writing if any portion of the case summary is to remain confidential. The case summary should include a list of all pending and resolved claims, and all issues to be addressed in mediation, including the following information:
- The names of all mediation participants
- The facts of the occurrence
- Opinions on liability
- All damage and injury information
- Any offers or demands of settlement
In addition, you should also include copies of all relevant pleadings for the mediator’s review, prior to the first mediation session.
Like any other important event in your case, mediation requires serious preparation to be successful. Lack of preparation wastes everyone’s time. It can cause an unfavorable result for your client, leaving them confused and alienated. You also miss the opportunity to impress your opponent with the strength of your case. Don’t view mediation as simply another settlement conference or another hurdle to get to trial. Prepare extensively and use it effectively, to promote a fair and efficient result for your client.
There is no hard or fast rule as to the length of mediation sessions. Mediation of complex civil cases can take a full day negotiation, or several sessions to reach full agreement. Less complex mediations may conclude after just a few hours. Sometimes, the mediator discovers that additional information is needed before a settlement can be reached. In those instances, mediation will be rescheduled to allow parties additional time for discovery or to obtain ultimate settlement authority before the mediation resumes.
Local Circuit Rule 20.03(C) requires mediation to be completed within seven (7) weeks of the first mediation session unless extended by court order or by agreement of the parties.
DISPENSING WITH MEDIATION PRIOR TO SETTLEMENT
Any party may move the court to dispense with mediation, within fourteen (14) days after the Order of Referral. A case may be inappropriate for mediation if the issues were previously mediated between the same parties; the issue presents a question of law only; or for good cause shown. Under the Rules, parties may also bring a motion to defer mediation, or for interim or emergency relief, if appropriate.
FAILURE TO APPEAR
Local Circuit Rule 20.04(A)(3) sets forth sanctions for failure to appear at a duly noticed mediation session without good cause. Certain fees and costs may be assessed against a party failing to appear.
At the conclusion of the mediation session, the mediator and all participants sign a “Memorandum of Agreement/No Agreement.” This document will be filed with the court, reporting the outcome of the mediation.
The Memorandum reports one of three outcomes:
- Whether a full agreement resulted;
- Whether a partial agreement resulted; or
- Whether no agreement resulted.
In the event of an agreement, parties can specify whether they intend to file the actual agreement with the court (as an attachment to the Memorandum) or whether they will retain the original agreement themselves, thereby preserving its confidentiality.
A post-mediation status date will have been previously set by the court. Parties should appear in court on the date to dispose of the case, should settlement terms have been met, or to resume and/or reset their trial schedule, should mediation prove unsuccessful.
The court views the mediated agreement as a contract among the parties. Basic contract principles apply to its enforcement. Local Circuit Rule 20.05(E) specifies, “In the event of any breach or failure to perform under the written settlement agreement, the court upon motion may impose sanctions, including costs, attorneys’ fees, or other appropriate remedies, including entry of judgment on the agreement.”
Parties may elect to include a clause in the agreement, requiring them to mediate any subsequent disputes arising from the agreement, prior to resorting to further court action.
FOR MORE INFORMATION
Court-Annexed Mediation Supervisor: Kimberly Atz
Telephone: (312) 793-0125 Facsimile: (312) 793-0147