Mediating Justices: Former justices find that ADR is often a fertile field for life after the court

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Indiana Lawyer Focus

After years deciding disputes in the state’s highest court, two former justices now devote at least part of their practices to helping feuding parties find their own resolutions.

Former Indiana Supreme Court Justices Ted Boehm and Myra Selby each count corporate clients in their mediation and alternative dispute resolution portfolios, Boehm with Van Winkle Baten Dispute Resolution and Selby with Ice Miller LLP.

apb_tedboehm02-15col.jpg Retired Indiana Supreme Court Justice Ted Boehm sits on Monument Circle near the offices of Van Winkle Baten Dispute Resolution, where he practices primarily in mediation and arbitration. (IL photo/Aaron P. Bernstein)

Boehm said his practice is primarily ADR; Selby said ADR makes up only about 10 to 15 percent of her practice, but it’s growing. Other current and former justices are certified in alternative dispute resolution if only to understand the process, but few have much, if any, practical experience as mediators.

For Boehm, handling his own schedule of mediation and arbitration cases allows flexibility.

“The common thread of all of them is I can do whatever I want when I want,” he said. “I can act like a retired person if I want to.”

It’s not like having a real job, Boehm said, because he sets and keeps appointments on a sort of freelance basis, allowing time for golf and travel, freeing time to spend “the dark days of February in Florida.

Besides, Boehm’s expertise comes at a price that limits the number of disputes in which his services would be sought. He charges $400 an hour for mediation, more for arbitration, and more again for legal advice, though he declined to quote those fees.

“I don’t get asked to mediate more than I can handle,” he said. Most of the conflicts presented to him involve multiple parties, usually involving finance, business litigation and/or transactional law.

While most mediation and a fair amount of arbitration is confidential, Boehm recalled one high-profile case he arbitrated: A 2012 dispute involving Chevrolet and Honda over an IndyCar ruling concerning the specifications the racing governing body would allow for turbochargers.

Boehm recalls having to learn on the fly about the technology involved in open-wheel racing, and he ultimately affirmed IndyCar’s ruling allowing a Honda turbocharger design that Chevy objected to. “It was basically a conclusion that IndyCar had properly issued the regulations and could enforce them,” he said.

Boehm’s ADR practice typically involves business disputes or unsolved legal issues whose results are unpredictable, he explained. Selby said a good volume of her mediation work has involved health care or insurance or corporate contract issues.

Neither Boehm nor Selby were sure if their tenures as justices would have a persuasive impact on parties that come to them for mediation services.

“That’s hard to know,” Selby said. “I believe that it equips me with a certain perspective and set of experiences that’s valuable to the process. I think the appellate court experience really necessitates a perspective of objectivity, and that’s one of the most important things to bring to mediation.”

John Krauss runs an intensive, week-long, 40-hour public policy mediation course at the Indiana University Robert H. McKinney School of Law that fulfills the basic requirement to become a civil mediator in Indiana. He has trained 45 trial court judges and two appellate judges along with third-year law students who typically take the course.

Krauss said he believes experienced judges may be at a disadvantage in some ways when they later become mediators. He tells judges who take the course, “One of the things you have to do is make your role very clear to the parties, because you’re not a judge, and they have to know you’re not a judge. You’re not going to decide.

“A lot of deference is going to be given to you because of the role you’ve had, and you’ve got to diminish that,” Krauss said.

Unlike their roles as fact-finders, Krauss said, judges who take on a later career as a mediator have to acquire a new skill set – namely, navigating parties toward a solution in which both sides can feel they have made their positions clear. And the solution might not be one found in the law.

selby Selby

“A judge could never order someone to say they’re sorry,” Krauss said. “Sometimes in mediation, it’s not the money, but being heard, and being validated, and having someone say they’re sorry, that solves it.”

It’s unknown whether anyone said “sorry” in the recent dispute among Lake Superior judges in which the Supreme Court dispatched former Justice Frank Sullivan to mediate – his first and only foray into ADR. The matter involved multiple claims on a single judgeship, and Sullivan said the effort wasn’t successful. Ultimately, the Indiana Supreme Court decided the matter.

“It was a long shot,” Chief Justice Brent Dickson acknowledged of Sullivan’s mediation effort. “He had a unique command of the political history and was well aware of how things happen in Lake County. He was respected by all the parties, and they knew he had that knowledge and that historical perspective.”

Selby is unconvinced that former judges and justices may have a disadvantage as mediators. Rather, she thinks their experience makes them better able to focus on the possible solutions.

“I think we have an understanding of both the purpose of the process and the alternatives along the continuum of alternative resolution services,” she said.

While former Chief Justice Randall Shepard said he’s had no experience as a mediator, he believes judges and justices may be ideally suited to the task.

“I think who mediates does add something, and there are people who are able to sustain the attention of the combatants, if you will,” Shepard said. “That’s something a former judge or former justice can do.”

Krauss said he believes judges do have an advantage in evaluative mediation, in which they can share with parties based on their experience the likely outcomes of cases or what they believe juries think about in particular conflicts.

Boehm concedes that in some cases parties to mediation may be influenced by his past life as a justice. “I do get some cases where I think the parties actually want me to give them an answer,” he said.

In instances where both parties ask him for his opinion, Boehm said, “I try to point out to each side what it seems to me are the weaknesses of their positions on both sides” so they can recognize the risks they may experience going forward.

Studies show an increase in the use of ADR, Selby said, a trend she believes bodes well for the legal profession and parties that otherwise might resort to litigation. “It’s a more efficient and economical way to resolve disputes,” she surmised.

Dickson is required by mandatory retirement to depart the bench no later than July 2016, and he said working as a mediator in retirement is a possibility. “It might well happen one day, if lawyers will have me,” he quipped.•


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.