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Mediation Or Lessons To Be Learned From "The Untouchables"

"I want him dead. I want his family dead. I want his house burnt to the ground." Robert DeNiro as Al Capone in the movie "The Untouchables" spoke these words in formulating a strategy to resolve a particular dispute. In my meetings with clients to discuss litigation strategy, some have echoed similar approaches.

While adhering to Capone’s strategy has a certain allure all its own, there are those pesky criminal impediments to consider. A rapidly growing alternative to the "beat your opponent into submission" approach is mediation. Mediation has generally been described as a "facilitated negotiation". The setting is defined by the use of a neutral third person called a mediator – often a retired judge – whose job it is to assist parties in facilitating a settlement of their dispute. Two critical components of mediation are that it is non-binding and the mediator is not a decision-maker. This results in the parties maintaining responsibility for their own decisions and if they are unable to settle their conflict, they are not prejudiced by an adverse judicial ruling.

Mediation is not for everyone or for every dispute. I recently engaged in a pre-trial with a judge to consider settlement. The other side made such outrageous demands that the judge responded, "I think they need to feel more pain before we discuss settlement". Make no mistake about it, litigation is painful. It is expensive, time-consuming and draining of both emotions and personnel. Since statistics show that more than 90% of all civil litigation will settle prior to trial, many clients and attorneys are asking themselves if the Nike slogan of "No pain, no gain" should be reserved for exercise. Mediation offers a quicker, informal and cheaper alternative to litigation. It usually only takes hours or days, discovery is either non-existent or limited and it often takes place either prior to litigation or in its early stages. Even if a mediation does not result in a settlement, it is still often successful. Since the parties present their positions at the mediation proceeding, each party has an opportunity to explore the theories of its opponent and determine the strengths and weaknesses of its own case by requesting feedback from the mediator.

In responding to Capone’s "dispute resolution strategy", Sean Connery, in "The Untouchables", stated that the best available remedy was to handle it "The Chicago Way". "He pulls a knife, you pull a gun, he sends one of yours to the hospital, you send one of his to the morgue". Since neither strategy proved all that effective for Capone or Connery, perhaps it is time to consider a different approach. Mediation – "The New Chicago Way"?

Louis D. Bernstein is both a trial lawyer and certified mediator. He is a partner in Gould & Ratner's Litigation Practice Group. He may be reached at 312/899-1667 or at

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