U.S. District Judge Thomas M. Durkin has sat on the federal bench since 2013, after spending many years as a litigator. We happen to go way back — he’s a fellow graduate of the DePaul University College Law Class of ’78.
We met to discuss all sorts of topics relating to mediation and negotiation — and we discussed so much that our chat will be split among several Mediation Circus columns in the coming weeks.
Panter: I’m here with the Honorable Judge Thomas Durkin, my classmate. We’re all so proud of him.
Durkin: I’m wearing the wig.
Panter: Wearing the wig, and he’s out of his wig today, I think. I can’t tell because his hair looks very gray. Yeah, sandy. Let’s say sandy.
Durkin: All right. That’s better.
Panter: Tell us your thoughts on mediation and negotiation.
Durkin: I think as a party you absolutely have to go into a mediation from a position of strength, which means you can afford to walk away. If you walk into a mediation where you must positively, absolutely have to settle because your case is so weak, you’re going to walk out with an unsatisfactory result.
If you walk in from a position of strength, you will come up with a better result. A position of strength doesn’t mean you have a winner of a case. It means you are so well-prepared, you know the facts so well, that you can both impress the mediator with the strength of your position, but more importantly, impress the other side with the strength of your position.
That goes hand in hand, because if you impress the mediator with the strength of your position, when the mediator meets with the party privately on the other side, they’re going to be more inclined to say, “Well, they’ve got a pretty strong case. Maybe you’d better consider that offer carefully.”
I think the key to mediation as a party is walking in and being in complete command of the strengths of your case, because if you’re not, you simply won’t get a good result.
Panter: What do you do if you have a weak case?
Durkin: No case is so weak that you can’t find something, even if it’s an appellate issue, that can’t be at least thrown out there as a potential reason for the other side to want to avoid a trial. At the very least, you always have the costs of litigation.
The bottom line — the lowest common denominator for any party, even when they’re in a strong position — is they avoid the cost of litigation.
Secondly, the party with a strong case will at least avoid the minimal risk that it will go the wrong way. There’s always a risk that a jury could act irrationally or a judge could act irrationally.
Third, you can be creative. In many cases, parties would rather settle than risk a bad verdict. That’s, of course, why people settle.
More importantly, parties will sometimes settle if they know that the settlement won’t be used against them by other parties in other cases. There is the avalanche effect of it. If I settle with you, I will have to settle with a hundred other people in the same position, so you have to think creatively about how you would structure that with some kind of confidentiality agreement, some type of relief that is particular to your client that wouldn’t apply to others so that other parties who are suing the same company, for instance, can’t hold that out and say, “Look, you gave them X, so I want X or X-plus-one.”
There’s always a way, no matter how bad your case is — and you can note I’m laughing when I say, “How bad your case is” — to come up with a reason for the other side to want to settle with you.
That to me is the key, as a party at least, walking into a mediation. Extol your strengths. Minimize your weaknesses, and if there’s nothing but weaknesses, find something that the other side will feel that, “Well, it’s probably worth my getting out.”
It’s not just important to convince the other party. It’s important to convince the mediator, who will then act as your private advocate when they’re dealing with the other side privately.
Panter: Any other thoughts in general on mediations or on getting things settled?
Durkin: In federal court at least, we have a wonderful system where we have magistrate judges who are assigned to each of the cases randomly when we’re assigned to a case. The magistrate judge sometimes has no role in the case, but sometimes has a huge role in the case.
There are three things that can happen. The parties can consent to the jurisdiction of the magistrate judge and basically transfer the case to the magistrate judge for all purposes. Many parties do that, because the district court judges have a criminal docket that can often dominate our work.
The magistrate judges, although they have many responsibilities in the criminal area, don’t have felony criminal trials and criminal sentencings, so you can often get to trial sooner with a magistrate judge than you can with a district court judge. That’s a big thing for many parties who want to get the case resolved more quickly.
Two, we can refer discovery disputes or discovery supervision to a magistrate judge, who are often experts in electronic discovery and resolving complex discovery disputes. They’re very good at it. I refer especially complex discovery disputes to them.
The third area that deals particularly with the subject you’ve raised is we can refer cases to them for settlement purposes. The magistrate judges in this building are experts at settling cases.
One of the retired magistrate judges, Morton Denlow, for instance, is a national expert on mediation and arbitration issues. The magistrate judges are just terrific at getting parties to settle cases.
I will not refer a case to a magistrate judge for settlement if one side doesn’t want to go. The magistrate judges have many cases. They often devote anywhere from half a day to a full day to a settlement conference, which is a lot of time. They are booked out one, two, three months in advance. But they are very successful. I don’t know what their rate is, but it seems to me it’s got to be at least a third to a half that they end up settling. It might be more.
They devote the time to it. They’re very experienced. I think they do what I wish I had more of.
They have enormous patience. They will not give up on the parties, when they’re $1 million apart and they’re negotiating a 10 or 20,000 back and forth.
I will often throw up my hands and say, “Let’s set it for trial.” I don’t have that patience. I wish I did. It’s a wonderful trait. Magistrate judges will never give up.
They will keep the parties there and keep their feet to the fire until they are convinced that it’s impossible to settle. I admire that trait in the magistrate judges. It’s a wonderful judicial and human trait they have that I’m afraid I don’t have enough of.
I can refer cases to magistrate judges for settlement purposes, and it’s a wonderful luxury. I don’t like doing settlement conferences myself for three reasons.
One is if I have dispositive motions pending, I think it’s unfair to the parties to have them in front of me and tell me the weaknesses of their case and the strengths of their case and have me, by body language or English language, tell them what I think of their case when there’s a pending motion.
They then will think somehow I am holding it against them if they take an unreasonable position and with then rule against them on a dispositive motion. That’s not a good dynamic for them. It’s not a good dynamic for me. Frankly, it’s not fair, so that’s one reason.
Two, if it’s ever a bench trial, I can’t do the mediation. I can’t do a settlement conference, because again I may start reflecting on my feelings about the case. I think the key to any good mediation is an impartial evaluation by the mediator of the strengths and weaknesses of the case.
That especially works with lay clients — not the law department-type clients or insurance companies, who are pretty savvy and know the strengths and weaknesses of their case — but private clients who are unfamiliar with the judicial system.
When they hear someone wearing a robe say their case is un-winnable or tells a client on the defense side, “You’re going to lose big time,” that carries a lot of weight.
I can’t do that if there’s a bench trial. Magistrate judges can do it. In fact, they can often use me, saying, “Judge Durkin won’t buy that,” or, “Judge Durkin will find that argument preposterous.”
I can’t say that if it is set for a bench trial.
The third reason is, as I already said, they’re very good at it. I’ve had a pretty good batting average on the few mediations I’ve done, getting cases settled, but I generally do them right before trial when all dispositive motions have been decided. I will never have final pretrial conference, which I typically do a week before trial, without saying at the start “Have you exhausted all efforts to settle the case?”
If there is a hope, an inkling, even a whiff of potential for a settlement, I will put a hard stop to all proceedings and I’ll get them back in chambers and we’ll discuss settlement. Sometimes that’s unsuccessful, because at that point the parties are geared up for trial. But they also know their case as well as they’re ever going to know it, so it may be a good time for them to evaluate risks and rewards.
I sometimes try and stop parties midtrial to discuss settlement. Often when the plaintiff testifies, the plaintiff knows how good the case is going and the defendant knows how good the case is going, and I’ll ask the parties if they want to talk about a settlement, just to keep the communication lines open.
I’ve had one settle midtrial, but I had nothing to do with it other than I told the parties I thought the jury was lost. Maybe that had something to do with it. It was a technical case involving a complex electronic set of systems involving copyright law, and I just said to the plaintiff on a Friday, “I think you’ve lost the jury and you better do a better job of getting them back to the case, because if we’ve got another two weeks of this …” and it settled over the weekend. Anyway, those are my thoughts.
In the next portion of Mike Panter’s conversation with Durkin, the two will discuss preparing a timeline for a case headed to trial.