Mediation could speed up process

Steve Horrell
http://www.goedwardsville.com

With a new mediation rule in place now for Madison County, every civil case under $50,000 dollars will go to arbitration and every medical malpractice and nursing home case will go to mediation. Participants in other types of civil suits can use a mediator if the parties agree to it.

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“Nobody’s right to trial has been taken away,” Circuit Judge Dave Hylla said Friday in comments to the county’s Judiciary Committee. “Even with arbitration, but especially mediation, if the parties don’t agree to resolve the case they can still have their day in court.”

While the Illinois Supreme Court officially approved the rule this week, the county adopted it last summer. So far, there is no data available to show how many cases have settled through mediation, Hylla said.

“My thinking – and I think the rest of the judges – was that even if 20 percent of the cases are settled through the mediation process, that lessens the load of cases and people come out of that having controlled their fate and agreeing to something, rather than having a jury decide. A lot of times people think the jury was wrong, so at least the parties decided.”

The processes have several distinctions. In arbitration, plaintiffs and defendants make their case to an arbitrator and give them what they consider to be a fair settlement figure. Unless both sides agree to the figure, the case proceeds to trial.

In mediation, each side submits facts to a mediator, who encourages them to reach an agreement. “They don’t come up with numbers saying this is what the value of the case is, or this is what we think you should settle for,” Hylla said. “We leave that to the parties.”

Nursing home cases were included in the mediation rule at the urging of East Alton attorney Robert Gregory. Gregory says he saw several similarities between nursing home and medical malpractice cases and felt that nursing home cases would have more success. Medical malpractice cases require that doctors approve a settlement proposal, he said. “That’s a big problem,” Hylla said. “In nursing home cases, you have an institution, and they’re more likely to agree to a settlement.”

Circuit Judge Dan Stack suggested requiring civil cases over $50,000 to use mediation but others suggested holding off. For now, mediation in those cases is voluntary. “Where both sides say they want to do that,” Hylla said. “They would probably be cases where the parties are close to settling and they just need a little push.”

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