Some helpful hints for mediators. - Mark P. Loftus

duda • September 26, 2025

Any lawyer that is involved in litigation of any type has, by now, been introduced to the concept of mediation. Mediation is an increasingly popular form of “alternative dispute resolution” which is legalese for “let’s avoid that whole trial thing”. Mediation involves the voluntary gathering of trial lawyers and parties in an effort to settle a case. There is no evidence offered, exhibits marked or arguments made. Instead, a mediation is essentially a protracted negotiation between motivated litigants. The mediation is typically chaired by a former judge who presides over the negotiations. Before the actual meeting, the parties submit position papers that summarize the relevant law and evidence, which the judge will review to formulate some ideas as to settlement range. Over the course of several hours, a negotiation will take place, prodded along by the mediator. With a little luck, the case may settle for a fair number. Over the last 15 years or so I have seen LOTS of mediators. Some were very good. Some not so much. The following are some suggestions I would offer to all mediators and potential mediators.

1. Read the submissions. Yeah, I know, seems pretty obvious. But I recently mediated a construction site injury case before a highly recommended mediator. Within 2 minutes it became pretty clear to me that he hadn’t read my submission. Yeah, I get it. You are really smart. You presided over lots of 7 figure cases when you were on the bench. You don’t have to read the submissions when value barely cracks six figures right? Wrong. Your firm got a big deposit from myself and opposing counsel. That Mediation Agreement indicated the deposit would cover your time preparing, which I assume means actually reading my submission. Sure, you can choose to ignore the submissions if you like. That decision however, just causes us to chew up valuable time as you learn the case on the fly. And is the refund check[for the “preparation time”] going to be mailed out soon?

2. Be nice. I once had a mediator tell my client he would “be stupid not to take the money.” Um, beg your pardon? Sure my client may not be as smart as you, your Honor. He doesn’t do mediations three times a week, like you do. And he hasn’t sat through dozens of them like the lawyers. In fact, as I think about it, my client has NEVER done this before. He needs to achieve a certain comfort level in order to make an important decision about money. Pointedly questioning his intelligence certainly isn’t going to help him get there.

3. Have a little humility. I had a medical malpractice mediation several years ago involving injuries my client suffered when his bowel was perforated during a hernia surgery. Defense counsel, an honorable guy, had submitted what he considered helpful[i.e. low] jury verdict reports to the mediator and sent copies to me. I figured I should at least offer an opposing point of view and dug up some some reports that showed substantially higher verdicts. When I entered the mediation I handed them to the mediator who tossed them on the table without even a glance. “I don’t need those,” he told me. “I know what the value of this case is.” Oh. I see. Will you give me some kinds of heads up when I am getting warm? I was under the mistaken impression this was a collaborative process.

4. Acknowledge the process is frustrating. At a recent commercial mediation, the mediator huddled with myself and my clients beforehand and told my clients a) it was going to be a long day, and b) there will be moments of frustration. That may have been the first time I had heard a mediator openly acknowledge the process can be frustrating – especially for non-lawyers. And he wasn’t whistling Dixie. That particular mediation moved along glacially for a variety of reasons. And the clients did get frustrated. But not enough to really disrupt the proceedings. Because they had been told what too expect, they were able to grit their teeth and keep talking.

5. Watch the sidebars. Clients get wary when there is lots of huddling with their lawyer outside their earshot. I understand sometimes a brief sidebar may be necessary. If that has to happen occasionally, fine. But let the client know why you needed to talk to their lawyer in private. No need to recite all the gory details – and yes, sometimes, things are better left unsaid. But work to keep the client included. Again – the client may be asked to make a decision about what may be the largest lump sum of money her or she will see in their lifetime. A client who has been repeatedly left alone in a conference room while the mediator and his lawyer whisper outside might wonder why he isn’t being included in discussions about his case. Remember – the odds of getting the case resolved go up if the client feels like he is part of the process.

6. Some analysis helps. Don’t just walk in, convey an offer and then blankly stare at us, waiting for an immediate response. If you are going to do that, you might as well cue the Jeopardy music. The negotiation process is maddening for clients. They see only the strengths of their case. Put some context on the numbers when you present them. Something along the lines of: “I recognize this number is really low. First, remember that we are early in the process. The numbers will go up. Secondly they feel the exposure is limited because: a) you conduct might be considered a breach as well, or b) those cliff-diving pictures on Facebook are NOT helpful, or c) let’s face it, drunkenly jumping on the officer’s horse was a bad idea.” Clients need to understand that there are factual and legal issues that make that number rolling around in their head unrealistic.

7. Opening statements aren’t necessary. There is no jury in sight. You hourly rate is pretty healthy. Why waste valuable time making everyone listen to a series of spectacularly drab opening statements? Everybody in the room knows the relevant facts and law. Opening statements are best left for the courtroom. Of course you can give counsel the option to make an opening statement but be sure to let them know they can stand on their submission. Most of us are only too happy to stand away.

8. Sometimes the Kracken must be unleashed. At another medical malpractice mediation, my client’s mother was well, unpleasant. Ah, hell – she was brutal. She was a half hour late, without explanation or apology. Her nonstop commentary was often borderline offensive. I dragged her into the hall a couple of times to read her the riot act but it fell on deaf ears. Moments later she would be back at it. A couple hours into it she suddenly announced the process was a waste of her valuable time and she was leaving. She got up and started walking toward the door. The mediator, who had been remarkably patient, let her have it. “Ms. Smith,” he began, “This mediation process isn’t about you. It never was. It is about your son. We are talking about large sums of money that will be paid to him over the course of his lifetime. What we are doing is very important – to your son. You have an obligation as his mother to sit down and participate in the process. Your impatience frankly doesn’t really matter to me. My primary interest is the welfare of your child. I would think you would have the same interest, but perhaps not. You can walk out that door if you wish. But if If you do, know that this case will NOT settle today and may never settle. And you will have done your son a grave injustice.” She deserved every word, and probably more. Ms. Smith sat down. And she shut up. And the case settled. Sometimes people like Ms. Smith, or the recalcitrant adjuster deserve to get their ears pinned back. If so, have at it.

9. NEVER do away with the freebies. Pens, notepads, ferrets, whatever. The parties are paying lots of money for the pleasure of your company. Taking a little souvenir home takes a little bit of the sting out of it – even if they never use it. And you would be surprised how many lawyers walk out of your offices with 12 new pens in their briefcase.

MENTAL SUFFERING DAMAGES ALLOWED UNDER NEW LAW - Mark P. Loftus

By duda • September 26, 2025
Illinois Governor Rod Blagojevich recently legislation that will permit successful plaintiffs to receive jury awards for grief, sorrow and mental suffering in Wrongful Death cases. The new law finally allows the surviving spouse and next of kin to recover for their anguish over the loss of their loved one. Prior to passage of the law, family members couldn’t even mention their grief at trial, as any such mention just might be grounds for reversal of the verdict. Illinois has now joined with 23 other states that allow such damages.

FILE THOSE RULE 222 AFFADAVITS!!! - Mark P. Loftus

By duda • September 26, 2025
The Fourth District Appellate Court of Illinois[Champaign County] recently came down with an opinon that will make Illinois personal injury attorneys check their complaints a little more closer. In Grady v. Machini[opinion filed on July 31, 2007] the plaintiff filed a complaint to recover damages for injuries she suffered in an auto accident. The complaint did not have an affadavit, as required by Supreme Court Rule 222, stating whether the damages sought did, or did not exceed $50,000. The case went to trial and the jury awarded $97,700. The defendant brought a post-trial motion to reduce the damages to $50,000. The trial court did so and the plaintiff appealed. The Appellate Court felt that Rule 222 was very clear – in effect, it requires that a party to attach an affadavit stating whether the damages sought did or did not exceed $50,000. The rule goes on to say any judgment that exceeds $50,000 shall be reduced to $50,000 if the damages sought do not exceed the $50,000 mark. The court ruled that as plaintiff did not file an affadavit asying she was seeking more than $50,000 she could not recover more than that amount. Ouch.

ILLINOIS HEALTHCARE SERVICES LIEN ACT - Mark P. Loftus

By duda • September 26, 2025
I recently had a situation with an Illinois Healthcare provider that I had managed to avoid for the last twenty years. Represented an older man for injuries he had received in an automobile accident. The client was a very nice guy who had come here from another country decades ago, worked hard and raised his family. Didn’t have much education, but always worked. He got pretty smashed up in the collision and had a fairly substantial hospital bill. He didn’t have any insurance at the time, so the hospital agreed to issue a lien for the outstanding amount, to be paid out of any settlement. Typically, [at least in my experience] the healthcare provider will usually accept a discounted amount in FULL AND FINAL SETTLEMENT OF ANY OUTSTANDING BILL. The reduction is an implicit acknowledgement that but for the efforts of the attorney, the medical bill would not have been paid. Getting back to my client, his bill was outstanding for a long time, so the hospital sent it out to collection. Collection agency contacts me and advises that after payment of the lien, they will pursue the client for any outstanding amount. I call the hospital and speak to personnel in management who agree that normally, after payment of the reduced amount, they forget about the balance. I pass this onto the collection agency, who insists on pursuing the client for any amounts outstanding. So although the hospital has conceded that their custom and practice is to accept the discounted amount in full settlement, the collections bloodsuckers refuse to budge. The inmates have apparently taken over the asylum. My only option is to bring a Motion to Adjudicate the Lien, which isn’t a particularly good option. Under 770 ILCS 23/45, healthcare providers are entitled to go after the entire amount. Hopefully the judge will recognize the unfairness of the collection agency ignoring hospital policy, and give my client a break. To be continued…

SEVENTH CIRCUIT WEIGHS IN ON RETALIATORY DISCHARGE - Mark P. Loftus

By duda • September 26, 2025
The United States Court of Appeals for the Seventh Circuit, located in Chicago, Illinois, recently discussed the proof a plaintiff must offer when prosecuting a retaliatory discharge case. In McCoy v. Maytag, Thomas McCoy brought a retaliatory case against his former employer, Maytag, for firing him after he filed a Workers Compensation Act. The Court, in the course of its opinion, set forth the elements a Illinois plaintiff must prove: 1) that he was the defendant’s employee before the injury; 2) that the employee exercised a right granted by the Illinois Workers’ Compensation Act and 3) that he was discharged from his employment with a causal connection to his filing the Workers’ Compensation claim. The hard part in these cases is the third element – causation. The Court noted that “The element of causation is not met if the employer has a valid basis, which is not pretextual, for discharging the employee.” So what does that mean in English? The Court explained that in order to show pretext, “…a plainitff must offer evidence to indicate that the employer did not honestly believe the reasons it gave for its action and is simply lying to cover its tracks.” Pretext “…means more than a mistake on the part of the employer; pretext means a lie, a specifically a phony reason for some action.” In short, the plaintiff has to show the employer’s reason for discharge was a lie. Not an easy thing to prove, as Mr. McCoy found out. The Seventh Circuit upheld the Trial Court’s decision to grant summary judgment against plaintiff, ruling that the plaintiff’s failure to provide regular updates to justify his absence from work[required under the Collective Bargaining Agreement]was a non-pretextual reason for the termination.

TRENT LOTT HAS AN EPIPHANY ABOUT INSURANCE ABUSES - Mark P. Loftus

By duda • September 26, 2025
Senator Trent Lott, the powerful Republican Senator from Mississippi, has seen the light. Lott, who, until very recently, was a longtime defender of insurance companies, is no longer. Senator Lott lost his home to Hurricane Katrina in 2005. He filed a claim with his insurer, State Farm. The “Like a Good Neighbor” people denied coverage on Lott’s claim, as well as the claims of tens thousands of other homeowners. State Farm claimed Lott’s home, and the other homes, were actually damaged by flooding, a non-covered risk under the policies Lott filed suit, litigated the case over a year, and only recently settled. That experience caused Lott to re-think his allegiance to insurance companies. He has now concluded that the insurance industry needs some reforms[gasp!!!]. To quote Senator Lott: “I’m like a woman scorned. I’m prepared to to continue to kick their fanny until the last day I’m alive on this Earth because they have mistreated too many people.” Better late than never Senator.

HOW LOW CAN PROGRESSIVE INSURANCE GO? - Mark P. Loftus

By duda • September 26, 2025
Pretty low, if the allegations made by an Atlanta couple prove to be true. Bill and Leandra Pitts, the couple in question, were injured in a 2004 auto accident. According to an recent article in the Atlanta Journal-Constitution, the insurance company involved, Progressive Insurance, established a new low while “investigating” the claims made by Mr. and Mrs. Pitts. According to the article, investigators for Progressive snuck into the Pitts’ church in August of 2005, posing as prospective members. Then they slimed their way into a private confessional meeting at a church member’s home, hoping to overhear a damaging admission from the Pitts about the auto case. After the Pitts learned of Progressive’s tactics, they filed a lawsuit claiming invasion of privacy and fraud. Progressive’s President and CEO, Glenn Renwick issued a statement acknowledging that the story appeared to have merit and apologizing for the actions of the investigators. Interestingly, Renwick’s statement didn’t mention what disciplinary action, if any, were taken against the investigators in question.

CHICAGO HEAVYWEIGHT BEING SUED - Mark P. Loftus

By duda • September 26, 2025
According to a recent article in the Chicago Sun-Times, the next fight for Chicago heavyweight Andrew Golota might take place in a Chicago courtroom. Golota is being sued by a Chicago woman after a traffic accident in April, 2007. The woman, Juliet Mendez, is claiming that Golota blew a stop sign and slammed into her car. The lawsuit claims that Mendez suffered permanent injuries to her back and neck. Golota’s wife, attorney Mariola Golota, claimed that the accident was a simple fender bender. According to the Sun-Times article, no ambulance was called to the scene, and the accident report referred only to property damage.

LORD OF THE DANCE STAR PREVAILS AFTER RAPE ACCUSATION - Mark P. Loftus

By duda • September 26, 2025
According to a recent Chicago Sun-Times article by Bill Bird, Michael Flatley, the Irish dancer, also known as the Lord of the Dance, has prevailed in his lawsuit against a Joliet woman and her attorney. The woman, Tyna M. Robertson had accused Flatley of raping her in Las Vegas in October of 2002. No criminal charges were ever filed. Some five months later, Robertson filed a lawsuit against Flatley in Lake County, Illinois, seeking $35 million dollars in damages. Dean Mauro acted as her attorney. Mauro directed a letter to Flatley demanding millions of dollars to settle the case and accused Flatley of rape. Flatley then countersued Mauro and Robertson for extortion and defamation. The case was concluded several weeks ago, with Mauro paying Flatley more than $400,000. A default judgment has been entered against Robertson. Robertson subsequently had a son with Chicago Bears star linebacker Brian Urlacher and was involved in litigation involving visitation rights in October of 2006.

ILLINOIS TEEN SETTLES WITH POLICE AFTER GETTING TASERED - Mark P. Loftus

By duda • September 26, 2025
A south suburban teenager, Travis Alexander, has agreed to settle his lawsuit against a south suburban Chicago Police Department. Alexander sued the Riverdale Police Department after he was tasered and attacked by a police dog. Alexander was 17 at the time of the incident. He and a friend were walking home from a store when they were stopped by a police officer. The police maintained they had received a tip that Alexander’s friend was involved in a drug deal. Alexander and his friend ran, claiming that they were scared of the Police. Alexander was only two doors from his house when caught. He was then handcuffed and tasered. In addition, the plaintiff alleged that the police allowed a German Shepherd Police dog to attack Alexander, causing him injuries on the leg and head. Although no contraband was found on Alexander, he was charged with resisting arrest and trespassing. He was ultimately exonerated of those charges. As a result of the incident, Alexander suffers from post-traumatic stress disorder. The Riverdale Police department agreed to pay Alexander $345,000 to dismiss the case.

MORE DETAILS ON CHICAGO PRIEST ACCUSED OF SEXUAL MISCONDUCT - Mark P. Loftus

By duda • September 26, 2025
More details are emerging about precisely how early Church authorities were aware of alleged sexual misconduct on the part of Rev. Donald J. McGuire. McGuire was a teacher at Loyola Academy in the late 1960’s. In 1969, Rev. Charles Schlax contacted the the president of Loyola, Rev. John Reinke, to complain about McGuire. A young man had complained to Fr. Schlax that McGuire was a “pervert”. The youth had apparently been staying at Loyola for as much as a week at a time, including nights. Schlax had requested an investigation into McGuire. Shortly thereafter McGuire was informed he was going to take a sabbatical. Then in 2000, several families who had sons working as aides to McGuire expressed more concern about McGuire’s behavior. One family reported that their son told them McGuire was overwhelming him with pornography and sexual discussions. Another family complained that McGuire was pressuring their son to avoid college, family and friends – and instead spend more time with McGuire. McGuire apparently encouraged the kid to sleep on the floor in his room, or in his bed. Shockingly, McGuire’s superiors have indicated as recently as 2005 that they had no knowledge of McGuire’s proclivities. Turns out they had plenty of notice and allowed this guy to terrorize kids for 40 years.