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Justice-turned-mediator: ADR does work

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When he was a member of the state’s highest court, former Justice Ted Boehm recalls reading a fair amount about alternative dispute resolution and even crafting rules about the topic.

But since leaving the appellate bench in September, he is seeing the modern ADR system for the first time from the trenches.

boehm After retiring from the Indiana Supreme Court last fall, former Justice Ted Boehm started working with Indianapolis-based Van Winkle Baten Dispute Resolution and is seeing the alternative dispute world up close and personal. (IBJ Photo/ Perry Reichanadter)

His verdict: It truly does work.

That is a common theme among jurists-turned-mediators, who may not have been able to personally witness the ADR benefits and only heard stories told by others about how effective an option it can be. Many say they are in some ways constrained by their robes from actually talking to parties and finding mutually beneficial resolutions. Boehm may be unique in moving from the state’s highest appellate bench to the ADR world, but he echoes what others have said when making the move.

“Before now, I’d had an Olympian view of mediation,” Boehm said, referring to his 14 years on the Indiana Supreme Court. “Not too many former judges are doing this, but I’m a little of an unusual character being the only former justice. As an appellate judge, I read a fair amount about it and helped create some rules but never

witnessed it on the ground level and didn’t know what it was truly like. I’m really surprised at how well it really does work.”

The first months with Indianapolis ADR firm Van Winkle Baten Dispute Resolution haven’t presented any new substantive challenges. The issues he is addressing are much like those he handled both as a practicing attorney and saw from the judge’s perspective. Boehm began his legal career at Baker & Daniels in the 1960s before taking on corporate counsel roles at General Electric and Eli Lilly in the late 1980s to 1995. Those jobs gave him the chance to participate in negotiated settlements of many large complex business disputes on acquisitions, dispositions, real estate transactions, and commercial agreements.

All of that combined with his court experience set the stage for what he’s doing now. The use of ADR really exploded during the time he was on the bench, so this is his first practical experience participating since that boom happened, he said.

Devoting about a third of his time to mediation work, Boehm said he just recently started handling his first arbitrations and most of his cases at this point have been focused on business, contractual, or regulatory scheme issues between shareholders, corporations, or employees. He hasn’t had a personal injury or domestic relations case, which are the most high-volume type, he said.

“I’m really enjoying the mediation so far and like that it’s something I can do on my own schedule,” he said, noting that his calendar has at least one mediation or arbitration per week. “The issues aren’t really different, so it’s really just the ADR aspect that I haven’t experienced before. My biggest surprise has been how unsurprising it’s been so far. But I am really interested to see firsthand how well it works.”

Boehm is keeping busy, balancing his time between the dispute resolution firm and other work such as senior judging for the Indiana Court of Appeals. He’s also been spending much time handling a high-profile trustee role in the estate of the late Mel Simon, who died in 2009 and whose family is battling in court over how the former mall owner’s estate will be split. Boehm is also staying involved in civic activities and the legal community, such as chairing an Indianapolis Bar Association political action committee focused on changing how judicial candidates receive campaign donations.

“I’m trying to keep my hand in the civic and legal communities as much as I can give back,” he said.

That schedule flexibility and ability to apply past experience to something new is one of the reasons other judge-turned-mediators agree ADR is an attractive professional option.

Kim Van Valer left the Johnson Superior bench in 2009 to return to her family firm in Greenwood where she is helping to run the office and has created an ADR focus.

“As a judge in my second term, I started seeing that there was so much good I could do if I could just step around that big bench and sit at a table to talk with these people,” she said. “I loved being on the bench, but it can be frustrating that you aren’t able to just talk casually with people about what options might exist. In court, you’re trying to win rather than agree on something.”

Though her ADR emphasis at the firm took off slowly, she said it has started to pick up and she is seeing cases from not only lawyer or judicial referrals but unexpected places like church counselors and therapists. She works as a mediator to avoid the “shuttle mediation” method between rooms. Though she’s running for a part-time position on the Franklin City Court, Van Valer said she’s eager to continue mediation work at the law firm. She also serves as a senior judge statewide and is on the ADR Committee for the Judicial Conference of Indiana.

“If we expect our courts to function as problem-solving centers, we need to send only those cases in which resolutions are impossible between the parties themselves,” she said.

Former Shelby Superior Judge Russell Sanders, who retired at the end of 2010, has entered the ADR world as a member of The Mediation Group in Carmel. He’s one of two former judges there.

Sanders said his judicial experience gives him a better feel for evaluating cases – he knows how he might approach a case as a litigator or how he would view it if it came before him on the bench – and helps him to craft a mutually beneficial resolution. He uses the perspectives of both as a neutral party.

“This was just too good an opportunity to pass up, getting to stand on the third leg of the system,” the former judge said, referencing his 20 years as a practicing attorney and 14 years on the bench. “They’re all complementary and a part of what this practice of law is all about – resolving disputes for people. That’s why we got into this profession in the first place.”•

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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