How Mediation Developed — A Local Example (Part 2)

Douglas County Courthouse, Omaha, Nebraska

By: Donald L. Swanson

Michael Mullin is an Omaha attorney.  He is a mediator and has been mediating lawsuits for many years. Mike mediates cases all-day, every-day — literally: including Saturday’s, Sunday’s and holidays, as needed.

Mike became active as a mediator when mediation began taking hold in the Omaha area back in the mid-1990’s.

Mike explains how mediation developed from non-use to common use  as follows:

Initially, “there was some reluctance by attorneys on both sides of the bar to the concept of mediation.” But both sides soon realize they have “strong incentives to mediate their disputes.”

Michael Mullin, Mediator

In the early- to mid- 1990s, Mike served on a committee that drafted proposed local rules giving the local state court judges “authority to order cases to mediation.”

The Plaintiff’s Bar

Initially, the plaintiff’s bar “emphatically opposed” the rule but then changed their position as they realized that mediation “is the best thing to happen” for them.  Here are some of those best things:

–“getting files closed more quickly, with less expense, and with greater client satisfaction”;

–quickly settling a new case “for 70% to 90% of full value, without risking a defense verdict or lowball verdict”;

–having happy clients: “it is a rare plaintiff who wants to go through the discovery process, a trial, and then a possible if not probable appeal prior to knowing whether they would recover anything on their claim”; and

–reducing substantially “the risk of a malpractice action by a dissatisfied plaintiff.”

The Defense Bar

Insurance companies are “notoriously” opposed to paying legal fees. Prior to the rise of mediation, they and their corporate defendant counterparts “had no choice but to hire the best (and frequently the most expensive) defense attorneys” to defend the suits against them. But “once mediation became available, insurers and corporate defendants saw the opportunity to save on legal fees, cap their exposures, and get files closed.” As a result, “almost all files involving insurance defense claims end up being mediated, and very few get to trial.”


In short, “every player and decision-maker in civil litigation benefits from the mediation process.”

So, the result for civil litigation in the Omaha area has been a progression from little-to-no mediation in the early 1990s to mediation serving a major today

What are the odds something like this could happen in bankruptcy?





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