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 percent 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.
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 mediation 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 when 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. Sixty percent 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 percent 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.
Charles R. Winkler, a River Forest resident, is a retired Cook County judge.