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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

  5. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

ADVERTISEMENT