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.
ACTIONS
ELIGIBLE
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.
MEDIATION
SITE
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
PARTICIPANTS
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.
TIME
PROVISIONS
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.
SETTLEMENT
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.
ENFORCEMENT
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
