By Robert M. Meisner
Most judges in circuit court these days do whatever they can to see if a case can be resolved quickly and reasonably. To that end, the mediation-facilitation process is widely utilized to complete that task.
Mediators are usually trained specifically to accomplish their responsibilities, but many times, there are persons who serve as mediators, presumably ex-judges, who take on that task as well given their wide range of experience in handling and settling cases while they were on the bench.
Serving as a mediator can be a very rewarding and worthwhile undertaking, and some attorneys do nothing but mediation-facilitation in the practice of law. Others like myself have done mediation on an occasional basis as well as having served as case evaluators appointed by the various circuit courts.
There is a difference between mediation and case evaluation. Mediation is a process whereby a neutral is appointed or agreed upon by the parties or, for that matter, appointed by the court to try to settle the case. The mediator makes no determinations as to liability or damages, but his or her sole function is to bring the parties together towards resolution. Case evaluation, on the other hand, is a process mandated by the court rules in certain types of cases for the “case evaluators appointed by the respective circuit courts to determine the value of a case for settlement purposes.” That is, to try to bring the two competing parties together to reach a dollar amount which will result in the disposition and settlement of the case. There are sanctions, if, in fact, one or both parties do not accept the case evaluation award depending upon the amount of the award and the ultimate resolution or verdict in the case.
However, in choosing a mediator, it is important that the mediator be someone whom the parties can trust. Recently, I had the occasion to have a mediator appointed by the court who was a former associate of this firm. He left the firm under somewhat unethical circumstances and, unfortunately, continues to attempt to undermine this firm. Moreover, the proposed mediator appointed by the court was someone who was in a clear conflict of interest, being involved as counsel in another case that indirectly implicated this firm in an ongoing lawsuit. Unfortunately, the former associate chose not to voluntarily withdraw from mediation when asked to do so, no doubt, to have the opportunity to say that he mediated a case over this firm’s objection. We were compelled to bring a motion before the court to disqualify the mediator who, under the rules of ethics concerning mediation, should have withdrawn where the propriety of his involvement is was in dispute. The motion resulted in the former associate being disallowed as a mediator, and another mediator was found.
This underscores the need to find a mediator who is not only ethically appropriate, but understands the role of a mediator, namely, to try to get the parties together with no preconditions on the part of either party as to the trustworthiness of the mediator who is handling the case. It is also essential to have a mediator who has some expertise in the area of law which is the subject matter of the lawsuit. For example, this firm has been involved in commercial litigation with particular emphasis on community association and condo law for nearly forty-five (45) years. It is with that background of experience that we are called upon to facilitate community association issues, including construction defect claims against the developer, bylaw enforcement issues, and other internal issues that arise in the community association setting. In any event, you should work closely with your attorney in picking the right mediator, as most judges encourage the parties to reach a resolution at mediation which generally can be a very rewarding and cost saving experience.