Magistrates take on more mediation work

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When federal magistrate judge Aaron E. Goodstein steps down at the end of June, he still plans to do what he can to keep the civil caseloads lighter for his colleagues on the bench.

In the last several years, Goodstein and the other magistrates in the United States District Court for the Eastern District of Wisconsin have seen an increase in mediation settlements.

And Goodstein expects his successor will allow the court to continue to expand its mediation workload, in addition to the typical criminal and civil pre-trial work done by magistrates.

Though the court didn’t have statistics charting the increase, both judges and lawyers say there has been a better utilization of the alternative to trial.

“It’s been very successful in resolving a lot of cases and saving the time and cost of trying cases,” said Goodstein, who does up to three mediations a week.

Or as Eastern District Bar Association President Cristina D. Hernandez noted, “It’s free.”

While mediation is not mandated by the district court as it is in state court, it can be an attractive option, said Hernandez, especially in “low dollar” cases.

“I think it makes a big difference, particularly in small cases,” said Hernandez, of Quarles & Brady LLP. “Someone who doesn’t have a lot of resources is still able to get in front of a judge and that’s important.”

In her experience having cases mediated in federal court, Hernandez said the judges do a good job advertising the option to attorneys and individuals.

Foley & Lardner LLP attorney G. Michael Halfenger suggested that the poor economy combined with the cost of litigation is also a factor.

“In times such as these where everyone is cost-conscious, if you can get someone skilled in mediation without having to pay, I think that’s something we’re trying,” he said. “And most of the time parties agree to it.”

Magistrate Judge Patricia J. Gorence said she generally may handle one mediation per week and often times they will take an entire day.

But mediator Joseph D. McDevitt doubts that the federal system will get to the point of mandating mediation, simply because the civil caseload isn’t as heavy as in state court.

Typically, parties will request mediation through the district court judge, who in turn reviews the details and can refer it out to a magistrate.

“When there is a legal impediment one side feels strongly about, it’s hard to mediate, and in that case all you are doing is wasting everyone’s time,” McDevitt said.

While complexity and the willingness of the parties to participate are factors as to whether a case warrants mediation, Gorence said judges tend to encourage it whenever possible.

But that is less so in the U.S. Western District court.

“If I get one a month, that’s a lot,” said Magistrate Judge Stephen Crocker. “It’s just not what we do here.”

Crocker attributed the difference in part to the fact that he is the only full-time magistrate in the district, although Clerk of Courts Peter A. Oppeneer serves in a part-time capacity.

Also, the two district courts have different reputations as to how they schedule and process cases, with the Madison-based Western District often referred to as the “rocket docket.”

“We do approach things differently,” Crocker said. “Basically, Peter serves as our gatekeeper, which means he may talk to parties about mediation, but we don’t require it in any cases.”

With a smaller staff, Crocker also noted that it’s simply a matter of appropriately allocating resources.

“I talk to the judges down in Milwaukee and a big part of their job is devoting a whole day to one case,” he said. “I just don’t have the time to do that.”

Attorneys downplayed the notion that mediation may be more of a necessity in the Eastern District.

Hernandez said it’s more a matter of the judges being skilled mediators and being willing to take on the task.

“I don’t get the sense it has impacted the pace of the decision-making of the court, one way or another,” she said. “I think it’s the notion of having an experienced judge just to examine the case early on, prior to trial, that parties like.”

Jack Zemlicka can be reached at [email protected].