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Litigants view mediation process as affordable option to settle cases quickly

| Sunday, Oct. 25, 2009

Legal mediator John Noble tells the story of two brothers killed in a car crash. The families, even in mourning, soon were divided over which brother was at fault.

With a six-figure insurance settlement at stake, they filed lawsuits. Expert witnesses were hired. Not surprisingly, the experts came up with conflicting scenarios as to which brother was behind the wheel.

In court, one side would win everything.

Attorneys for both sides decided to call Noble in to break the deadlock and stop the rising cost of litigating the case in open court.

Noble brought the sides together to settle the case in a private mediation session. In the end, the families divided the financial settlement and were able to take steps toward healing their strained relationship.

Similar scenarios are playing out across Pennsylvania.

A decade ago, Noble was a practicing attorney in Greensburg. Today, he is a full-time mediator. His career switch reflects a rapidly growing trend to try to settle civil suits outside of a courtroom with the help of mediators like Noble and Tom Frampton of Pittsburgh, an attorney who divides his time between litigating cases and mediating them.

Mediation has "exploded" in the past five years, said attorney Robert Johnston, another mediator in Westmoreland County.

"Mediation is typically faster, less expensive and more flexible than going to court," he said.

"In conflicts where ongoing relationships are at issue, enabling the parties to develop their own resolutions may also improve their ability to solve future disputes," he noted.

Mediators generally enter the picture at the behest of the parties' attorneys and typically are paid a flat fee by the parties in the dispute, Johnston said.

Anyone can work as a mediator, but many are attorneys. There are a number of training and accreditation programs available, but knowledge of the law is crucial, Noble said.

If a dispute goes to mediation but is not resolved, the parties can return to court for a settlement, he said.

No accurate count of cases

It's difficult to quantify how much private mediation is taking place, said Pat K. Chew, professor of law at the University of Pittsburgh. No one — including the government — is keeping count of the number of cases.

Five years ago, there were fewer than five Westmoreland County attorneys working as mediators. Today, the number of lawyers certified to mediate has jumped to 30 and still is growing, according to Johnston.

The federal district court in Pittsburgh now requires mediation in all civil cases, prompting 300 Allegheny County attorneys to become certified.

"That didn't exist two years ago," said Ann Begler, a Pittsburgh attorney with a vigorous private mediation schedule.

Starting in 1999, Noble rapidly expanded his mediation workload, reaching 163 cases in 2006, 250 in 2007 and 276 last year. He cut back this year and expects to handle 240 cases, or about 20 a month.

A matter of 'risk avoidance'

William Radcliffe, a full-time litigator in Uniontown who also mediates, said the process can work only when the parties come to the table equally at risk or when they are deadlocked.

Frampton, a former common pleas court judge in Mercer County, said mediation is a matter of "risk avoidance" on the part of the parties. "You look at both sides. You think to yourself, what does the plaintiff need out of this?"

Sometimes the stumbling block isn't a large sum of money, but an apology.

Frampton was party to a mediation in which a man's 52-year-old wife had died during gall bladder surgery.

"We went around the room," he said. "When the doctor spoke, he said he wanted to say something and looked at the husband. And what he said was, 'Would you ever find it in your heart to forgive me?'" Afterward, a settlement was quickly and easily reached.

Session length may vary

Noble said mediation isn't over until someone walks out. Though the sessions typically last several hours, Noble has sat through marathon sessions that ran 12 hours.

"I try to bring people to reality" by talking straight to them, Noble said.

Other times, he tugs at their emotions.

He told a story involving two brothers who had inherited a grocery store. After a falling-out, the brothers stopped speaking to one another. One filed a lawsuit. Eventually, Noble was asked to mediate. Shuffling between the rooms where the brothers were holed up, he told one, then the other, "Other than the case, your brother wants to know how you're doing."

Noble said the case was settled with a compromise. As for the brothers, he thinks they were on their way to renewing their relationship.

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