How civil lawsuits in Cook County proceed to resolution: Mediate—Don’t litigate!

During the last 12 years we have presented several ADR programs focused on using the mediation process to resolve civil lawsuits, including divorce. The public for the most part has no idea what mediation is or how it can save thousands of dollars and weeks of lost time. Yes, we have produced videos and published pamphlets on the subject without any plan on how to educate the public in an alternate way to proceed to a resolution of a civil lawsuit. Our Chair, Jay Schleppenbach, Vice-Chair Sandra Crawford and retired Judge Allen Goldberg reviewed a draft of an article I was writing for a weekly community newspaper and I thank them for their suggestions. On July 26, 2017 the article appeared in the Journal, a publication read by people residing in Oak Park and River Forest, communities 12 miles west of downtown Chicago, with a combined population 63,050. The paper is delivered to homes and stores like CVS, Walgreens and 7/11. It also is sold in restaurants and small businesses. I am guessing the article, “Mediate, Don’t Litigate!” was read by 3,000 people.

The Chicago Tribune and Sun-Times did not publish the article, most likely because it is commercial, asking litigants to call their lawyers. I have given copies of the article to doctors, dentists and business owners I know. One e-mailed: ”Thank you so much for the informative article. It is a topic I will share with family and friends, as our time and resources are so valuable. All the best, John.” When I finished “Mediate-Don’t Litigate!” I intended it to be given to the public in general. After reading the comments of some lawyers who have read it I also suggest that a copy be given to any client who is or might be engaged in the litigation process.

As of May 1, 2017 we have over 800 ADR section members receiving our newsletters. If each of us would spread the word to 10 people who may pass it on to three others we can assist our Chair, Jay Schleppenbach, in how best to go about promoting a better understanding of ADR statewide. Please see the June publication of In the Alternative. If a civil lawsuit has only a 2% chance of being resolved with a trial the public should be aware of it.

Here is the article:

Every year in Cook County 2.4 million lawsuits are filed. The majority of the cases involve personal injuries, breach of contracts and divorces, followed by disputes involving wills and foreclosures. Did you know that only 2% of all civil cases are actually decided by a judge or a jury? A small number of the cases are dismissed by a judge because they are legally defective. The rest are settled, some within a year after filing. Most of the cases settle within six months of the day the case is to be tried before a judge or jury. If 100 civil lawsuits are filed today in the Richard J. Daley Center Courthouse only two will be decided by a jury or by a judge. Many settlements take place with the help of a mediator. In this article you will learn about the mediation process, how cases proceed through the court system and the litigation process.

When I began my law practice, some 50 plus years ago, lawyers would negotiate, sometimes with a judge present, in an attempt to settle their cases. In the 1980s mediation was introduced to the trial lawyers as an alternate way to help clients resolve their disputes. Today the mediation process is used to settle civil cases like those mentioned above.

Litigation starts after the lawsuit is filed. It is a time consuming and costly process used by lawyers to prepare for a trial. Parties and witnesses sit for hours while lawyers ask them questions during depositions. Parties must produce documents and answer written interrogatories. Meetings and phone calls with lawyers, appearances by lawyers in court and clients paying bills sent by lawyers are part of the litigation process. Litigation can end at any time before a lawsuit is tried.

Any person involved in a lawsuit may find mediation a better alternate than going through the litigation process. Mediation can start at any time, even before a lawsuit is filed. The meditation process begins when the parties agree to hire a mediator who is a neutral person. Attorneys, retired judges and people with special training are selected based on their experience in mediating the kind of dispute the parties have: divorce, personal injury: etc. Mediation is informal and confidential. The parties and their lawyers meet with the mediator who previously received written statements from the lawyers describing the lawsuit and the expectations of their clients. The lawyers make opening statements, followed by the mediator who will meet privately with each side. This is the time that both the client and the attorney are encouraged to explore their positions. In my experience as a lawyer, judge and mediator I have concluded that there are very few lawsuits that can be called a sure thing. On occasion as a sitting judge I would meet with lawyers and their clients in chambers before the selection of a jury. There were cases that I felt could be lost and I would ask this question: Have you ever considered the possibility that you may not win? The client would look at the lawyer and I was sure the question had not been asked. A good mediator will have the parties focus on the strengths and weaknesses of their case.

Mediation is non-binding with the objective being to help the parties reach a mutually acceptable agreement on all or part of their dispute. Most mediations are completed in one or two sessions. 60% will settle at the first meeting. The mediator cannot make a finding of fault and cannot impose a decision on the parties. The parties make the deal, not the mediator or the lawyers. The parties can end the mediation at any time and decide to have their day in court. Any statement made by a party during mediation cannot be used against that party during a trial. If you are ready to resolve your lawsuit and end the litigation process, call your lawyer and discuss what you have read here. For a list of mediators in Cook County go to Google.

In closing, I hope you never fall into the 2% category of cases that are decided by a judge or jury. The millions of dollars awarded to people who have suffered permanent and disabling injuries or lost a family member will never bring back good health or replace a husband or child. 

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This article was originally published in the November 2017 issue of the ISBA's In the Alternative newsletter.