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Mediation is a process in which an impartial person, the mediator, facilitates communication between disputing parties to promote understanding, reconciliation and settlement that could result in cases being settled at earlier stages. Essentially, mediation is assisted negotiation. The mediator acts as a catalyst for dispute resolution by asking questions, helping to define issues, opening channels of communication and assisting in the creation of alternative settlement proposals or solutions. The mediator has no authority to render any decision or to force a settlement.
Working with the mediator, counsel advise, support and protect their client's interests through negotiation and problem solving. The process allows the parties to retain control over the settlement of their dispute and offers responsibility for participation in a resolution.
To implement section 652(a) of the Alternative Dispute Resolution Act of 1988, 28 U.S.C. § 652 et. seq., the court provides mediation conducted by the clerk/part-time magistrate. Mediation is available throughout all phases of all civil litigation (except those matters specified in Local Rule 3 LR 16.6). To the extent his docket permits, a district judge from the Northern District of Illinois is also available. Mediation is voluntary and non-binding, unless the parties agree otherwise. The recognized mediators are judicial officers of the court and subject to disqualification in accordance with federal statutes, such as 28 U.S.C. § 455 and the Canons of Judicial Ethics.
Purpose of Mediation
The purpose of mediation is to permit an informal discussion between the attorneys, parties, party representatives and the mediator. This process provides the advantage of permitting the mediator to privately express views concerning the parties' claims and defenses. The mediator may talk with the lawyers, the parties or the party representatives outside the hearing of others. With the assistance of the mediator, the mediation provides the parties with an enhanced opportunity to settle the case.
Role of the Mediator
The mediator presents a broad range of resolution options to the parties. The mediator helps parties engage in productive dialog, helps each party understand the other side's views and interests and communicates views or proposals in more palpable terms. The mediator also gages the receptiveness of proposals, helps parties realistically assess their alternatives and helps generate creative solutions. The mediator has no power to impose settlement or coerce a party to accept proposed terms.
Circumstances Appropriate for Mediation
Mediation provides creative solutions to a variety of problems that might prevent speedy resolution during litigation. When communication between the parties is a major barrier, or the interests of the parties are obscured by rigid legal positions or emotions, mediation may help resolve the issues involved and open communication between the parties. The most important prerequisite to successful mediation is that all parties are genuinely interested in informal resolution and realistic good faith negotiation.
Typically, the Preliminary Pretrial Conference Order requires each party to submit a settlement statement to the Clerk of Court, email@example.com, by a specified date. The settlement statement sets forth the relevant positions of the parties concerning factual issues, legal issues, damages and the settlement negotiation history of the case, including a recitation of any specific demands and offers that may have been conveyed. The confidential statements submitted by the parties are not shared with the other side and are not filed with the court or shared with the presiding judge.
Confidentiality & Ethical Standards
The settlement statements and all communications occurring during the settlement conference are confidential. There will be no disclosure to anyone, including any judicial officer not serving as a mediator in the matter, of any confidential dispute resolution communications. Any information obtained during the settlement conference cannot be used by any party with regard to any aspect of the trial in the case. No information exchanged during the mediation process will be shared with the court except as specifically authorized or as permitted by the Federal Rules of Evidence.
Any party that feels a mediator has violated confidentiality or ethical standards is encouraged to submit a written statement to the Chief Judge, with copies to the mediator and all parties. The Chief Judge will review the matter and take appropriate action.
Mediations are set before either Magistrate Judge Peter Oppeneer or Senior U.S. District Judge Philip G. Reinhard (by designation from the Northern District of Illinois). Magistrate Judge Oppeneer has been conducting mediation at the court since 2008 and worked as a law clerk in chambers for the previous 20 years. Judge Reinhard has 20 years of experience on the federal bench and has been successfully mediating cases in the Western District of Wisconsin since 2008.
Our mediators participate in mediation training sessions provided by the Federal Judicial Center, the training component of the U.S. District Courts. They are also kept abreast of changing ethical standards and mediation techniques through Federal Judicial Center publications.
Any mediator who believes there is a conflict of interest immediately notifies the parties and will assist in the selection of an alternate mediator. If a party believes there is a conflict of interest, that party is to notify the mediator and all parties of interest. The mediator will work with all parties to locate an acceptable alternate mediator. After a conflict of interest is disclosed, the parties are to cease all settlement efforts with the conflicted mediator until a new mediator is found.
Magistrate Judge Oppeneer may initiate contact with the attorneys based on the settlement letters submitted or other circumstances in the case file that suggest mediation might be successful. Attorneys are also welcome to initiate mediation by contacting Magistrate Judge Oppeneer's office at (608) 261-5795. This might be especially useful when attorneys believe that early mediation could successfully avoid discovery and trial preparation costs.
Advantages of Mediation
For Attorneys: The process facilitates negotiation and assists a settlement which may be more favorable than expected trial results. It can accomplish the goal of the client without a disproportionate expenditure of costs and fees. Using mediation can provide a more effective use of attorney's time and, if the case is not resolved, the mediator can assist in focusing the remaining discovery.
For Clients and Litigants: The process allows an element of control over the resolution of the dispute. Clients and litigants can bargain through counsel and make decisions that a court or jury could not.