The Mediation Process by Judge Mark Schuering
I. MEDIATION SETTLEMENT LETTERS
A. DEADLINE AND CONFIDENTIALITY
Counsel should submit their settlement letters and documentation to the mediator a minimum of 2-3 days before the scheduled mediation by regular mail or electronically by email
All letters, materials, will be held strictly confidential by me
Please inform me if counsel elects to exchange their mediation settlement letters with one another. In that instance there would not be the need for strict confidentiality. However, the mediation details would nevertheless remain confidential to outside sources
Depositions or other materials may be forwarded electronically. Senders will receive confirmation for each email by a return email
B. Contents of Mediation Submissions
To insure an effective mediation, the form for Settlement Letters should include the following:
First) Case Status (pre-suit; pre-discovery; pre-trial; impending trial; appeal)
Second) Statement of Facts
Third) Liability (Plaintiff & Defendant strengths or disadvantages)
Fourth) Damages (Plaintiff & Defendant strengths or disadvantages)
Fifth) Depositions, reports, documents, photos
Sixth) Plaintiff’s last demand
Seventh) Defendant’s last offer
Eighth) List and status of liens
Ninth) Special Factors
These are simply suggested Settlement Letter Guidelines.
Counsel should modify the same for the specific nature of their case
Submissions to the mediator are held in strict confidence & any and all copies will be shredded and/or deleted after the mediation has concluded
II. PRECEPTS
A. In 1924 United States Supreme Court Justice Benjamin M. Cardozo said -
"Fulfillment may fall short of expectations"
B. Abraham Lincoln said in 1850 -
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a loser in fees, expenses and waste of time.
As a peacemaker the lawyer has a superior opportunity of being a good person"
C. Importance of Precepts?
- Never assume your case will be tried just as you expect it to happen
- Never assume the result will be just as you anticipate
- Taking settlement negotiations seriously is a sign of your serious concern for your client
- Even if settlement is not achieved, the mediation effort will be worthwhile
III. WHEN
Mediations are opportune
- pre-suit;
- pre-discovery;
- pre-trial;
- impending trial;
- post-trial/appeal
IV. WHO
- Counsel responsible for trial shall appear in person with settlement authority
- Plaintiffs, defendants, claims adjusters should attend in person
- “Advisor", i.e., close family member or friend are encouraged to accompany parties
- If your claims adjuster or principal is unable to attend in person, please re-schedule
V. WHERE
- Typically at a location agreed upon by Counsel, often at one of the attorney’s offices
VI. CONFERENCE PROCEDURE
- BRIEF INTRODUCTION I will give a brief introduction, explaining the process and ground rules. Included among my comments will be the ground rules for the session.
- As a general rule counsel will not be asked to make an opening statement
- In instances where it may be useful and productive for counsel to make an opening statement or acknowledge a loss, please inform me ahead of time
- NON-BINDING Unless otherwise agreed, this will be a non-binding mediation. Offers, promises, conduct and statements, whether oral or written, made in the course of the non-binding mediation by any party , witness or mediator are confidential, privileged and inadmissible and shall not be used for any purpose, impeachment, nor disclosed to non-participants, except those associated with the parties
- ADJUSTORS PRESENCE Claims adjusters should appear in person or by video (Zoom) with their attorney.
- MEDIATION PROCESS Mediation will as a rule employ the Facilitative method. As counsel requests or circumstances dictate, use of other mediation techniques will be employed
Definitions of mediation methods:
(1) Courier. Neutral delivers, transports or conveys settlement demands and offers from one side/party to the other
(2) Facilitative Mediation. Neutral facilitates resolution between parties without expressing views or positions (absolutely neutral). Includes creative or non-traditional solutions
(3) Evaluative Mediation. Neutral provides the attorneys and parties an opinion on the potential outcome(s) regarding the case. This is largely based on the mediator's experience, knowledge of legal issues, locale and training
(4) Hybrid Mediation. Combination of Facilitative and Evaluative mediation techniques
*Transformative Mediation. Transformative techniques are regularly employed. Aspects of transformative mediation include: (a) empowerment of parties; (b) recognition of the parties needs, values, point of view; (c) conferencing with all parties and their counsel together
If a settlement is achieved, it must be an entirely voluntary resolution by all sides
Keys to a successful mediation include consideration of the following:
First) The Facts
Second) The Law
Third) Liability
Fourth) Damages
VII. MEETING SEPARATELY WITH EACH PARTY
- At the mediation I will caucus (meet privately) with each side to explore settlement
- Confidential communications will not be disclosed unless authorized by counsel.
- I will not be an advocate or agent for any party
VIII. SETTLEMENT ACHIEVED
- If the settlement is agreed upon, an appropriate record shall be made of that resolution
IX. COSTS
Mediation costs are $250 per hour. Mediation costs include file review and time spent conducting the mediation. The responsibility for payment rests with the attorneys and their law firms. Unless instructed otherwise, I will assume that counsel for each of the respective parties/sides will pay an equal portion of the fees and that this arrangement is satisfactory to you
Mileage for out-of-town travel is a flat .50-cents per mile. The mileage charge is from my address in Quincy to the mediation location and back. However, there are no hourly charges for any time simply spent in the car driving to the mediation
X. CANCELLATIONS OR RESCHEDULING
If the mediation is cancelled at least three days in advance of the set date, fees will only be charged for any pre-mediation time. Simply re-scheduling for a new mediation date will not result in any increased expense for any attorney or party
XI. CONFIDENTIALITY
Regardless of whether or not a Confidentiality Agreement is formally executed, I will treat the mediation as strictly confidential. After the mediation is concluded, I delete or shred all documentation. If a Confidentiality Agreement is requested, the parties may submit their preferred "form" for signature by all parties, attorneys and the mediator
XII. IN A NUTSHELL
- No case is so good that it can’t be lost
- No case is so bad that it can’t be won
Thank you for the opportunity to serve as the mediator in your case
I will use my very best efforts to be efficient, economical and effective as I serve the parties and counsel to resolve their dispute
Mailing Address:
Judge Mark A. Schuering (Ret)
Civil Mediation
1652 York Street
Quincy, IL 62301
Mobile Phone #:
Email:
Emails will typically be responded to within 24 hours
Counsel should feel free to contact the mediator at any time to ask questions about the process or discuss particulars for an upcoming mediation. Ex parte communication prohibitions do not apply to the mediation process