EAST ST. LOUIS - Mediators have achieved 111 settlements of civil suits in U.S. District Court since Chief Judge Nancy Rosenstengel introduced mandatory mediation.
“We are pleased with that,” Rosenstengel said in a review of results from the plan on Dec. 4.
She said, “Our docket is such that we can’t try every case.”
The number of settlements equals about one a week since she adopted the plan in October 2021.
Her purpose was “to provide a more efficient and less expensive alternative to continuing litigation without impairing the quality of justice or the right to a trial.”
Rosenstengel wrote that mediation would be conducted at a point where parties have evaluated strengths and weaknesses but before filing and responding to dispositive motions.
The plan arranges for a mediator to learn a case at the same time as the presiding judge but not in the same way.
Parties can tell mediators things the judges don’t know.
Prior to her introduction of a mandate, parties could hire mediators or ask a district judge to refer them to free mediation with a magistrate judge.
Rosenstengel said she received an email a few years ago touting a 50% settlement rate for mandatory mediation in the Northern District of New York, which prompted her to pursue a plan for the Southern District of Illinois.
She said she has received 193 reports, and the parties settled 111 cases, or 57%.
That tops the 50% standard that caught her attention.
She said she and Magistrate Judge Mark Beatty hammered out the plan mandating two hours of mediation and encouraging further sessions.
Parties must discuss selection of a mediator and have 28 days to jointly agree to one from the approved Mediation Panel List.
If they can’t agree, the judge picks a mediator.
The mediator fixes a date for a session no later than 30 days before the discovery deadline.
Rosenstengel said, “By then, you know your case.”
“If you start the conversation early, before dispositive motions are filed, it saves the attorneys and the court expense and time,” she said.
Preparation for a session is very important to a productive mediation, according to Rosenstengel’s mediation coordinator Megan Arvola.
Rosenstengel said 80 cases referred to mandatory mediation settled prior to the mandatory session.
“They decide, you know what? We can work this out on our own,” she said.
No later than ten days before a session, each party submits a memorandum that the presiding judge must not see.
A mediator may request additional information from any party or participant or discuss the case separately with counsel, parties, or representatives.
All parties must attend a session with counsel primarily responsible for trial.
Insurers must attend if their agreement is necessary, and a mediator may meet privately with one side or both to determine the analysis that went into evaluation of a case.
Rosenstengel said she doesn’t know how often insurers attend.
Arvola said, “There’s a lot the court won’t know as mediation is confidential and private.”
Clerk of Court Monica Stump said, “It keeps the judge fair and impartial.”
For corporations and government agencies, someone with authority to settle must attend.
A mediator may require attendance of “any other individual who appears reasonably necessary for the advancement of communication and resolution between the parties.”
No one records or transcribes a session.
The plan states, “There shall be no communication between the presiding judge and the mediator regarding a case referred for mediation.”
“No communication made in connection with or during any mediation session may be disclosed or used for any purpose including impeachment in any pending or future proceeding in the court,” it continues.
Within ten days after a session, a mediator reports whether the parties settled.
If not, further sessions may occur until 15 days after the discovery deadline.
Rosenstengel said, “The goal is to put it in the hands of the parties.”
“You may not be thrilled about the result but you are in control,” she added.
All parties divide mediation fees equally unless otherwise agreed or ordered by the court.
The plan advises that members of the mediation panel must listen effectively, facilitate communication, and generate meaningful options.
They’re all entitled to immunities and protections for performance of tasks integrally related to the judicial process.
Rosenstengel said some courts set maximum rates or other controls for mediator fees.
“We said, let’s get a pool and they can charge what they want, and attorneys can select the mediator that best fits their case with respect to compensation and experience,” she said.
Former district judge Patrick Murphy of Marion and former magistrate judge Stephen Williams of Belleville are two of the most popular mediators, and parties pay between $450 and $500 per hour for their assistance.
Murphy and Williams achieved a series of settlements this year in controversies running to millions.
As to why Murphy and Williams are two of the most retained mediators, Rosenstengel said, “People think they know the courts; they know the juries in Southern Illinois.”
Her plan doesn’t automatically cover potential class actions but judges have discretion to refer them to mediation.
It doesn’t cover appeals from bankruptcy court, social security or internal revenue.
Arvola separately coordinates and conducts mediation for civil rights claims of prisoners.