Dealing With Disputes

When J. Miles Sweeney retired as Greene County presiding judge in November 2007 after 23 years on the bench, he already knew that total retirement wasn't for him.

"All I did was retire from government service," he said.

In the two years since, Sweeney has handled nearly 50 mediations, and he saw an opportunity to improve the quality of alternative dispute resolution services available.

There are two types of ADR - mediation and arbitration - and both entail bringing a third party into a dispute to settle a disagreement that could otherwise end up in court.

"Over the years, I had heard complaints from the attorneys about the arbitration process," Sweeney said. "What they didn't like was that it cost a lot of money, took a lot of time and sometimes (a national company) would supply arbitrators that were not qualified."

Regardless of which type of ADR is used, it's important, he said, that the third party enlisted has the appropriate background to deal with the issue at hand.

"How'd you like to go across a bridge designed by an attorney?" he asked.

Sweeney's solution was to recruit about 15 former judges to act as arbitrators, tapping into their knowledge and legal backgrounds through Judicial ADR Group, or JAG, a business he launched in June in partnership with Kelley Still, a certified public accountant and accounting professor at Drury University. Still also has mediation training from the Washington University School of Law and Missouri State University's Center for Dispute Resolution.

JAG also uses a wide array of mediators, from Still to Sweeney's wife, Karen, who got her mediation skills through 33 years at Drury University where she handled myriad issues as vice president and dean of students, to Nelson Nichols, owner of Nichols Construction Co. Inc., who specializes in construction-related disputes.

Still said Sweeney contacted her about the possibility of setting up a mediation and arbitration firm when he retired.

"I mean, the minute he decided to retire we started talking about this," said Still, who had been appointed as a special master on some of the cases tried in Sweeney's court.

The two strongly agreed that arbitrators should be retired judges.

"We wanted to have a different arbitration model for the region to draw from," she said.

How ADR works

Arbitration and mediation are similar in that third parties help settle disputes outside of the courtroom, either shortly after a lawsuit has been filed or in lieu of a suit being filed. The primary difference between the two is that arbitration is binding, meaning that whatever is decided is final. There are rare exceptions, but generally speaking, there is no option to appeal arbitration.

"That's one of the reasons some attorneys have reservations about it," Sweeney said. "They're particularly concerned about having a binding arbitration with an arbitrator they don't trust."

With mediation, the parties in a dispute agree to have a mediator help them reach a settlement that is just for all parties, who then have the option to either accept or reject the settlement.

And mediation, Sweeney pointed out, is not about finding a compromise, though it's rare for anyone to walk away with everything they want.

"We're trying to get to the heart of the matter for both parties and find a solution that actually meets their needs," he said. "It's not about splitting the difference."

There are similar benefits to either course of action, Sweeney said, including settling a dispute quickly.

"The trial docket could be 10 months to a couple of years and then the irony is, the better you do at trial, the more likely the other side will appeal, which adds another year ... before you ever see a nickel (from the lawsuit)," Sweeney said.

That timeliness is important for people who need to make decisions for their business or the future.

"Uncertainty is hard on the human soul," Sweeney said.

Either approach also sidesteps the uncertainty of a jury trial.

"If they go to a jury trial, they're placing their fate in the hands of 12 people they've never met before," Sweeney said, noting that jurors might be sympathetic or skeptical about a case.

Then there's the expense of a jury trial. Beyond attorney fees, experts are hired to testify, and depositions have to be taken, which means court reporters will have to be hired as well.

"Most disputes are generally resolved, mostly because they're too ... expensive to try them," Sweeney said.

"When I was on the bench, I'd probably try, oh, 18 to 25 jury trials a year, but I'd have an inventory of about 500 that were filed in my division."

A different model

Sweeney said so far arbitration accounts for about one-quarter of his business.

"It will take a while to mature, and I knew that," Sweeney said.

But he's hopeful the services he offers will help raise attorneys' comfort levels with mediation. And his pricing is competitive, he said, noting that national companies may charge several thousand dollars to refer an arbitrator.

JAG charges $350 to provide a list of potential arbitrators. If a JAG arbitrator is selected, there's an hourly fee of $250 an hour.

There's no list fee for mediators, but the hourly rate is the same.

Sweeney is hopeful that by offering a selection of proven judges who are known to attorneys in the area, lawyers will be more comfortable with pursuing arbitration. People going through the selection process would be able to make legitimate decisions based on knowing who the arbitrators are, Sweeney said.

If a lawyer had a previous issue with a judge, for example, the lawyer could strike that judge from the list of potential arbitrators. The mediation side of the business has been well-received in the legal community.

"Locally, the lawyers (have) really bought into the mediation process because they know they're not locked into anything," he said.

Mediation is by far the most popular route to settling civil matters, said Crista Hogan, executive director of the Springfield Metropolitan Bar Association.

"Mediation maintains control in the parties' hands," she said.

The SMBA has space available for members' mediation or arbitration meetings.

"Maybe 5 percent of the time, it's actually arbitration," she said.

The problem most attorneys have with arbitration is "you lose your right to appeal, which is fundamental," Hogan said.[[In-content Ad]]