ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share
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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. 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)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

ADVERTISEMENT