Hon. Mitchell L. Hoffman, (Ret.) and Hon. Marguerite A. Quinn, (Ret.), senior mediators and arbitrators at ADR Systems, recently presented at the Illinois State Bar Association’s Civil Practice Update on how attorneys can make the most of their mediations. Their presentation covered the rudiments and incentives of mediation, best practices for drafting mediation memoranda, the change of mindset attorneys need to embrace when representing a client in mediation and tips for successfully negotiating a settlement—even when the parties are hundreds of thousands of dollars apart.
“In litigation, you can be certain of one thing: the uncertainty of trial; twelve strangers are deciding your case—and on the public record,” said Judge Quinn. “But in mediation, you control the process and, most importantly, the outcome in a confidential forum.”
Mediation is further distinguished from litigation by the mindset needed to navigate the process effectively, explained Judge Hoffman. The archetypal “game face” that a litigator may default to at trial is too aggressive and, in fact, often counterproductive to the shared goal of mediation. Rather, counsel should evaluate their case objectively, advocating its strengths and acknowledging its deficiencies and risks for their client.
“An honest, realistic appraisal of your case facilitates a more open exchange of information between the parties and the neutral,” said Judge Quinn. “It demonstrates a willingness to settle—to be there in good faith—and make reasonable offers and demands that advance rather than hamper the process.”
Judge Hoffman and Judge Quinn noted, however, that meditation is not merely a discussion about how the tangible, legal substance of a case should affect settlement positions during negotiations. It is also about intangibles. As recently noted in an article in the Chicago Daily Law Bulletin, “[s]ettlement [in a mediation] can turn not on the tact of the negotiators but on extra-legal insights that a neutral receives about parties’ personal concerns, sensitivities and needs.”
Judge Hoffman explained that “if aspects of a case are influenced by emotion more than numbers—if the partners in a business dissolution case are behaving like a feuding married couple—let your mediator know. That information is vital to the process because it is the mediator’s job to understand the parties in detail and keep them on track.”
To be sure, understanding the parties and helping them understand one another takes time and patience—sometimes a great deal of both.
“Some meditations may seem hopeless at 9 or 10 o’clock in the morning,” said Judge Hoffman. “But by 4 o’clock in the afternoon, as offers and counteroffers begin to rapidly close the gap, parties see that the process really does work.”
Hon. Mitchell L. Hoffman, (Ret.) has cultivated over 38 years of experience as a legal practitioner, having spent 21 of those years as a judge and 17 as an attorney. On the bench, he handled both Chancery and Law Division calls, settling many commercial and personal injury cases. Judge Hoffman is known for his detailed case preparation and analysis. He is fair and even-tempered and provides a calming influence during mediations.
Hon. Marguerite A. Quinn, (Ret) brings 38 years of legal experience to her role as a senior mediator and arbitrator. On the bench she presided over both commercial and personal injury cases, including one of the largest toxic tort cases in Cook County. She values patience when working with parties to resolve disputes and urges everyone involved in her mediations to intentionally listen to each other.
ADR Systems, It’s Settled. ®