ADR Systems’ senior mediators and arbitrators are so effective at settling contract, insurance coverage and employment disputes that they appear in almost every edition of the Commercial Settlement Report. Our neutrals’ skill at settling these cases is rooted in their legal acumen and ability to facilitate dialogue between business professionals, underscore the risk of litigation and the security of settlement and even repair relations so parties can return to the less expensive task of transacting business. Here’s how they do it.

Contract Mediations

Offer, acceptance and consideration are the elements of any classic contract[1] — but at ADR Systems, our neutrals frequently see that the issues involved in mediation are not those of formation but performance, interpretation, expectation, reliance, misrepresentation and the alleged violation of the implied covenant of good faith and fair dealing. The central question is often: Was there a breach, or was the defendant justified in their action or inaction?

“Contracts are about private agreement, so claims of breach of contract are claims of broken trust. There’s a real relationship at play — between two people or two businesses — with valuable interests on the line,” said Hon. Brigid M. McGrath, (Ret.), senior mediator and arbitrator at ADR Systems. “My job is to mend fences. This doesn’t just mean negotiating a settlement sum. It may often mean renegotiating the terms of the contract to re-set the relationship.”

To mend those fences, our neutrals take great pains to first understand the parties’ business relationship. Is it novel, or are the courses of dealing established? What role do the parties play in their industries, and how do their promises benefit one another? How do they depend upon each other?

Then, our neutrals identify what the parties want. Is it a settlement that satisfies an expectation interest or reliance interest and closes the relationship? Or is this dispute disrupting ongoing projects and financial stakes? Do the parties need to renegotiate contract terms to make doing further business easier?

Our neutrals gather all this information to facilitate a settlement. Simultaneously, they also build up the one thing without which a contract dispute mediation cannot succeed: Rapport.[2]

“Rapport is camaraderie — it’s trust in me and the other side,” said Judge McGrath. “I can’t do my job as effectively if I don’t know about the parties’ reservations and goals for the mediation. I need them to trust I will appreciate what they say, help them understand each other better and rebuild the trust they once had. That’s how contract disputes are settled.”

Insurance Coverage Mediations

Insurance coverage disputes are often breach of contract cases involving adhesion contracts. Plaintiffs are frequently alleging the insurer is entitled to recover costs, is obliged to cover costs or indemnify another (such as a third-party claimants) or has improperly denied coverage to a first party insured.

In these cases, our neutrals encounter issues of conditions precedent and subsequent, notice, interpretation, promissory estoppel and the alleged breach of the covenant of good faith and fair dealing. Like an iceberg, these disputes also sometimes carry a weight of emotion under the surface. This is because many insurance coverage disputes involve property damage from water, hail, fire and alleged negligence.

To settle these disputes, our neutrals underscore two important points: attendance and timing.

As to the first, in pre-mediation conferences, our neutrals underscore that those with necessary settlement authority must be present — or at least very easily available. Policyholders and third-party claimants do not always attend mediations, and insurance representatives possess only so much settlement authority before they must contact superiors. By leaving the mediation to their agents to handle until they are needed or giving representatives little settlement authority, parties stymie the rhythm, creativity and momentum needed for settlement. When those who need to be in the room are also truly empowered to settle the case, more work gets done.

As to the second, the case must be ready to mediate. “Mediation is an information-based process. Parties need enough information to think about the good, the bad and the uncertainty of their positions,” said Hon. Dennis J. Burke, (Ret.), senior mediator and arbitrator at ADR Systems. “But if parties haven’t taken enough discovery or exchanged enough information to negotiate the release or understand the scope of exposure, they can’t accomplish much. But they can mitigate this through a pre-mediation conference, which helps them understand what else they need to know before settlement can happen at the right time.”

Employment Mediations

Employment disputes are, like injury disputes, highly personal. Frequently, our neutrals must navigate claims of race, sex and gender discrimination, wrongful termination, retaliation, breach of contract, constructive discharge and alleged violations of the Civil Rights Act of 1964, the Fair Labor Standards Act, the Illinois Human Rights Act, the Illinois Gender Violence Act, the Illinois Wage Payment and Collection Act and the Illinois Whistleblower Act, inter alia.

Therefore, employment disputes often feature the emotionality of tort cases in the business context. So, our neutrals intentionally create space for both sides to simply : What they think happened, how they feel they have been wronged, what they want, and how the other side can provide that. Parties universally want their “day in court,” their chance to be heard. When they feel they have been heard, they are more likely to regard their dispute resolution process as fair and, thus, effective.

“I frequently encourage parties to allow me to share some of what they privately said to me with the other side. This information is often more personal and likely didn’t appear in the submission. When I relay the information, I can also relay the empathy or other sentiments which might not come through as clearly in a submission.” said Hon. Margaret A. Brennan, (Ret.), senior mediator and arbitrator at ADR Systems.

Judge Brennan does this to reduce information asymmetry, when one or both sides lack — or suspect that they lack — vital information about the deal, opposing positions and the other side’s perspective.[3] Parties may reject a settlement term because they lack information that contextualizes it. When parties lack key information, suspicions may rise. Distrust may germinate. Tensions may compound. Bad faith may be presumed. And settlement may be delayed — all because of a lack of understanding. In something as complex as an employment mediation, where the personal and professional intersect, mutual understanding is essential to settlement.

Mediate Your Contract, Insurance Coverage & Employment Disputes at ADR Systems Now

Contract, insurance coverage and employment disputes raise numerous legal issues that are fundamental to commercial and employment law. Our neutrals’ firm comprehension of these issues and their experience navigating hundreds of like cases makes them highly effective at settling these disputes — so much so that they have comprised the supermajority of all cases featured in our monthly Commercial Settlement Report since its early 2022 launch. Their proven ability to consistently settle contract, insurance coverage and employment cases makes it possible for parties to return to normal business and reconcile business relationships.

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Hon. Margaret A. Brennan, (Ret.) served for 19 years in the Circuit Court of Cook County Chancery and Law Divisions and cultivated expansive knowledge of commercial cases such as employment matters involving discrimination and retaliatory discharge, construction and legal malpractice disputes. Colleagues commend Judge Brennan’s intelligence, persuasiveness, remarkable patience, careful case preparation and boundless energy, which contribute significantly to her success as a senior mediator and arbitrator.

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Hon. Dennis J. Burke, (Ret.) has expertise in both commercial and personal injury matters. Following a 23-year legal career, he spent 15 years in the Cook County Circuit Court Law Division. An early advocate of alternative dispute resolution, Judge Burke created a program to mediate complicated discovery disputes – a program that is still used in the Circuit Court today. Judge Burke is well known for his keen ability to build trusting relationships with all parties.

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Hon. Brigid M. McGrath, (Ret.) has handled complex commercial and personal injury case types throughout her 34-year legal and judicial career, including construction defect, legal malpractice, medical malpractice, insurance coverage and product liability matters. As a senior mediator and arbitrator, she is skilled at diffusing conflict and identifying root causes of disputes. Counsel know Judge McGrath will prepare thoroughly for every case and work diligently toward resolution.

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ADR Systems, It’s Settled. ®

[1] Restatement (Second) of Contracts §§ 24, 50, 71 (A.L.I. 1981)

[2] Harvard Law School Program on Negotiation, Mediation Secrets for Better Business Negotiations: Top Mediator Techniques.

[3] See Guhan Subramanian & Michael Klausner, Deals: The Economic Structure of Business Transactions, Harvard University Press (2024), p. 18.