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

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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. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  2. Low energy. Next!

  3. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  4. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  5. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

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