QA: Anytime is right time for ADR, says specialist Kirn
Kim L. Kirn is a trained mediator with US Arbitration and Mediation-Midwest, Inc. and graduate of University of Notre Dame Law School. Kirn, having authored a column in the Record in October, provided a more detailed look at her career in "ADR," alternate dispute resolution, in the following "QA."
Record: Are courts all over progressing toward alternative dispute resolution, or is this being adopted more so in "hot spots"?
Kirn: ADR is popular everywhere, but certainly, like many trends in the U.S., ADR was more popular on the East Coast and West Coast before it became popular in the Midwest.
Record: What stands out about how the practice of law has changed since you've been a lawyer...and in Madison County?
Kirn Since 1985 to today the biggest difference is easy to point out: computers. When I started it was unusual for secretaries, much less individual attorneys, to have personal computers at their desk.
In Madison County from 1995 to today, I am not sure I see much difference--probably the rise of the very large plaintiff and defense firms in Madison County is significant.
Record: Who decides what matters are appropriate for ADR?
Kirn: Many times the judge determines whether ADR seems to make sense for each case. You have heard the saying "bad cases make bad law" and that is true. So, bad cases are especially good for mediation.
Other times, the parties themselves want to try ADR to resolve the case and ultimately save themselves money. In my opinion, almost all cases can benefit from mediation and in some states, Indiana, for example, the court rules mandate mediation for all civil cases.
Record: When is a case ready for ADR?
Kirn: Anytime! Having said that, there are some opportune times for ADR: at the very beginning, before the parties have spent much money and become intransigent in their positions; after summary judgment motions are ruled upon by the court; and on the eve of trial when all the witnesses are identified, and in general, the evidence is known to both parties.
Record: Why did you shift your career from practicing law to ADR?
Kirn: Although I love practicing law, I saw the emotional toll litigation took on the participants. They lost sleep, had their careers held in limbo while the case pended and felt tremendous stress over the whole process. I also saw the huge financial costs that clients paid to properly prepare their cases for trial.
At a university, I knew the opportunity cost of student scholarships and student programs that were not funded because the money was spent to fund litigation.
Moreover, I mediated numerous cases and loved the ability to move the decision-making from the judge and the court back to the parties themselves.
Many times, the parties were open to compromise and made decisions they accepted and agreed to act within the bounds they set themselves. I saw parties forgive one-another and move on with their lives without the bitterness that litigation oftentimes engenders.
Record: Can you provide some anecdotes from successful and unsuccessful mediations?
Kirn: My favorite anecdotes are from the cases in which the parties warn me that the case is impossible and there will never be a settlement; then I work my "mediation magic" and, voila, the case settles. I do not have very many unsuccessful mediations but they are no fun to talk about!
Record: What are the best ways to prepare for a mediation?
Kirn: The absolute most important thing in a mediation is have the right parties present for the mediation. The plaintiff and his/her counsel must be physically present and the defense counsel and a decision maker within the defendant's organization must be physically present.
Typically, this becomes an issue on the defense side. I have seen the Defendant represented at the mediation through the person whose decision is being questioned by the litigation and that is a mistake. He/she will fight to protect the decision and not be as open to alternatives or compromise.
Also, many times a Defendant will send a representative from the law department to the mediation with only limited monetary authority. The problem with this is that if the representative calls back asking for larger authority, the true decision maker has not sat through the full mediation, does not know what additional information has been presented, and is not as committed to the process.
Record: You have a young family, tell us how you find balance?
Kirn: As a full time ADR professional, I have control over my schedule. I can accept or reject cases depending upon my children's schedule, and to be honest, my own schedule, because I am interested in lots of other things outside of the law. I play tennis, mountain hike, ski, paint and study art, to name a few.
Record: What are your future professional goals?
Kirn: I am looking forward to mediating and arbitrating even more cases and not just in Illinois and Missouri, but nationally. I am working with United States Arbitration and Mediation Services and I think they do a fantastic job with accommodating the parties and attorneys during the mediation.
I hope to expand my mediation expertise to many kinds of cases including more personal injury, malpractice and intellectual property disputes. Finally, I'd love to do some mediating on international disputes including some post-war tributaries.
Record Tell us about your professional and educational background, as well as your family.
Kirn: I am the oldest daughter of four children. My parents are still married and living in Perryville, Mo. I attended University of Missouri-Columbia on a full scholarship and University of Notre Dame Law School.
After graduation, I worked with Lord, Bissell and Brook in Chicago as an associate attorney before moving to Springfield and working for the Illinois State Senate.
I was appointed counsel to the Senate Judiciary Committee and for one legislative session I wrote legislation, reviewed proposed legislation and counseled the senators on pending legislation. In 1991 I began working as in-house counsel for State Comptroller Dawn Clark Netsch, the first woman elected statewide in Illinois.
In 1995 I became University Legal Counsel to Southern Illinois University Edwardsville (SIUE) and moved to Glen Carbon.
Earlier this year I officially left SIUE and dedicated my practice to alternative dispute resolution (ADR) because in my experience ADR is a faster, more efficient, more confidential and more satisfying way to handle disputes.
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