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RSI Board Secretary Marinello on the Role of Arbitration and How It Has Changed

Sandy Wiegand, February 16th, 2023

Welcome to RSI’s Board Member Profile series! Each profile will feature a different member of RSI’s talented and dedicated Board of Directors. This month we focus on Board Secretary Mitchell L. Marinello.

RSI Board Secretary Mitchell L. Marinello

Mitchell L. Marinello has been a member of RSI’s Board of Directors since 2013 and has been Board Secretary since 2015. He is a partner at Novack and Macey, where he handles complex commercial cases through litigation, arbitration and mediation. Mitch also serves as a commercial arbitrator for numerous organizations including the American Arbitration Association, the International Center for Dispute Resolution, the International Institute for Conflict Prevention & Resolution (CPR), and others. We asked him to tell us about how alternative dispute resolution fits into his work, what he likes about the RSI Board, and more.

Can you share a little about your law practice and how you use ADR in your practice?

My practice is complex commercial arbitration. It involves contracts, real estate, employment, some intellectual property, and partnership law including break-ups in law firms and other businesses. Over the years, I have gotten a wide variety of cases. It’s fun in that you often learn about types of business or industries that are new to you, you litigate the issues involving those matters and then, when the case is over, you go on to something else. Of course, I also do counseling.

These days, ADR is an integral part of a commercial litigation practice, and I often represent clients in ADR settings. Arbitrations are a forum where trials are much more common than they are in court and you get to the merits of the case much faster. That has advantages for clients and for lawyers who usually find trials to be one of the most enjoyable aspects of litigation. I also serve as a mediator and arbitrator myself. To date, I have served as a mediator in about 20 cases and as an arbitrator in more than 240. As a mediator, I have had good success in settling cases, and my mediation practice has been picking up.

Mediations generally don’t work unless both sides are genuinely interested in them and enough information has been shared so that both sides can calculate the benefits and risks of going to a judgment on the merits. An extremely high percentage of commercial lawsuits eventually settle, so once enough information is on the table, there is a reasonably good chance of settling the case. I recommend mediation in appropriate settings. There are several factors to consider.

What led you to join the RSI Board?

I met (RSI Board member) Hon. Morton Denlow (ret.) years ago through the Chicago Bar Association and knew him from his time on the bench. He also knew other people in my firm very well. And then I had a mediation in front of him that was settled as a result of his efforts. He knew that I was interested in ADR, and some time after that he asked if I would be interested in joining the RSI Board. He gave a positive review of the organization, and I thought it would be interesting to learn about the organization and get to know the other Board members who at that time were mostly retired judges. I was and still am primarily focused on arbitration, while RSI is focused exclusively on mediation, but I thought RSI’s mediation programs would be interesting to learn about.

What’s your favorite thing about being on the RSI Board?

The people who work at RSI are very good at the services they provide. They are intelligent, dedicated and easy to get along with; getting to work with them is one benefit of being on the Board. Another benefit is that the Board members are a varied and interesting group of people.

When/where were you first introduced to alternative dispute resolution?

I started off as an attorney in New York City. We had some clients in the textile business, a client in the steel business, and a client in the paint supply business. They all had arbitration clauses in their agreements, and they ended up filing arbitrations involving breach of contract claims against companies they had supplied products to. The firm let me handle those arbitrations as a young lawyer, and I enjoyed them. I also started to think about how the arbitration process could be improved.

One thing people don’t necessarily know is how much arbitration has changed since the early 1980s. Then, like now, you would get a list of potential arbitrators and each side would get to strike and rank them. Well, I would try to find out information about the panel members, and it was very hard to do. There was no internet, of course, and the information in lawyer listings was pretty minimal, and it all sounded the same. I also discovered that some of the people on the arbitration panels were completely retired and that others had passed away! Also there wasn’t much arbitration in those days. People volunteered to be on the panels, but even if they were senior attorneys, that didn’t mean they had any significant experience as arbitrators.

In the early ’90s, things really started to change. The panels were updated, and a more rigorous process was put in place before you could become an arbitrator. Gradually, that also corresponded with an increasing number of arbitrations and with larger cases. I got really interested in arbitration and applied to be on the AAA panel. I got on the AAA panel in the early ’90s, and I started off getting small cases to arbitrate. And over time it just gradually grew. So now I get some very large and complex cases.

The increasing popularity of arbitration coincides with Supreme Court decisions that have given the Federal Arbitration Act new life and with the crowding of the courts, the high cost of litigation, and the long time it takes in court to get to trial. Arbitration and mediation benefit clients, but they also are in a very major sense relief valves for the court system. And, as RSI has shown, mediation also can help people who cannot afford the high cost of litigation resolve their disputes and get a chance to be heard.

Reintroducing Brian Roche, New President of the RSI Board of Directors

Just Court ADR, May 25th, 2022

Welcome to RSI’s Board Member Profile series! Each profile will feature a different member of RSI’s talented and dedicated Board of Directors. We begin this month with Board President Brian Roche, who was elected to the position in April to fill the unexpired term of Raven Moore. Raven stepped down amid increasing demands from her expanding role in the counsel’s office at McDonald’s Corporation, which will take her overseas. (Lucky for RSI, she is able to remain a Board member.)

Prior to being elected Board President, Brian Roche served as Board Vice President since 2015. He has been on the RSI Board since 2010. Brian is a partner in Reed Smith’s Litigation Department, focusing on intellectual property and technology disputes. We asked him to share a bit about how alternative dispute resolution fits into his practice, the importance of RSI’s work, and his goals as Board President.

RSI Board President Brian Roche

Can you tell us a bit about your law practice?

My practice is intellectual property litigation. I focus predominantly on patent, trade secret litigation, high-tech wireless communications, medical devices, electronic securities trading and software, database networking and telecommunications. I’ve been doing this work for about 25 years. It’s been an exciting area, especially as we’ve seen the technology breakthroughs in telecommunications in speed and bandwidth. What has come with that is a lot of disputes with patent holders over who owns the technology, who owns the rights. It has involved some of the largest companies in America trying to protect what they are developing. And people trying to preserve what they have developed against people who say, “Hey, I did it first; I got a patent.” 

How do you use alternative dispute resolution in your practice?

It’s a central part of (intellectual property) litigation in the US today. The courts favor having parties try to resolve the litigation through negotiation. Every court does it differently; some encourage mediation early on, some recognize that it’s not effective early on and encourage it after there’s been more evidence developed in the case before the trial. Others do it right before you go to trial. But these mediations sometimes last a couple days. The mediators tend to be active and retired judges, and retired litigators that used to do what I do now. I have actively been doing ADR since it began. It became a normal thing in the kind of work I do in the 1990s. Before then, it was really unusual.

What attracted you to/made you want to join the RSI board?

I didn’t have much contact with what RSI was doing until a colleague introduced me to the organization, and that was (RSI Board member) Hon. Morton Denlow. He was a federal magistrate at the time, and before that he was a partner with me at this law firm. He was recruiting to try to expand the board to get younger lawyers who were active in law firms. At that time RSI’s board was heavily focused on former and current judges. So he invited me, and I joined.

What’s your favorite thing about being on the board?

What I have really enjoyed is that the mediation RSI focuses on is not between big corporations that have the best law firms and best lawyers in the country working for them, and that can afford to hire the best private mediators. That’s not what RSI’s about.

RSI is about making the legal process that ordinary people occasionally run into better by having a way to have it resolved quickly. They get to participate immediately and don’t have to spend years litigating. That’s really what RSI is trying to do and has been able to do effectively in areas where people in these lawsuits are not regularly in the legal world. If there’s a problem with their mortgage, or a family dispute, such as divorce or child custody. And also small disputes, like with a contractor or a neighbor. Those are the kinds of disputes we believe can really be solved with mediation, if the courts are supporting and encouraging it.

So what’s been exciting about what we’ve done with RSI is we’ve partnered with the courts, predominantly in Illinois to advance mediation as an alternative to full-blown litigation. During the mortgage crisis that began in 2008, seeing what RSI was able to accomplish was remarkable: people who thought they were going to lose their homes found a way to keep their homes through mediation. 

Another of the things that excites me about taking on the role of Board President is working directly with our Executive Director, Susan Yates, who is a national leader in mediation in the courts and a national leader in innovative ways to move mediation online. I’m very excited about working closely with her.

In your RSI bio, you say that court ADR is often “a better and more efficient process” than litigation. What makes it that way?

I think that was referring to the context of what I do in these large cases, but applying it more to RSI, it can also be the best way for disputes to get resolved. People get hauled into court unexpectedly; they don’t have resources to hire a lawyer for a long fight. Really, all they want to do is tell their side of the story to the other side. They can hear the other side, and they get a neutral person to help resolve it, and most of the time, things get resolved that way. There’s recognition that litigation might go on for years, so for people who aren’t familiar with the court process, mediation can be a savior.  

Do you have any particular plans or things on your to-do list as Board President?

One focus is attracting younger people to the board who are excited about RSI’s mission, so there is confidence the organization will continue for years into the future; that it’s influenced by younger people who see different ways to resolve these kinds of problems, who have new ideas, new energy, new blood. Getting younger people from all different communities to join the board is a high priority.

The second priority is to see if we can expand services in the area of family disputes – in particular child protection cases in which children have been removed from their homes due to allegations of neglect or abuse. These are so difficult for families. Mediation has proved to be effective – it can be even more effective with online tools available today. And also just to be supportive of the courts in their own efforts to expand ADR in small claims, mortgage and rent disputes, among others.

RSI’s Board Member Alyson Carrel Co-Authors New Negotiation Textbook

Just Court ADR, May 6th, 2021

Congratulations to RSI’s Board Member Alyson Carrel for co-authoring a new negotiation textbook entitled Negotiation and Lawyers. Joining Alyson as co-authors are Art Hinshaw, Leonard L. Riskin, Chris P. Guthrie, Richard C. Reuben, Jennifer K. Robbennolt and Nancy Welsh. The textbook is responsive to the increased role technology plays in the negotiation practice and presents the core concepts, skills and strategies lawyers need to be successful in negotiation both online and offline. In particular, Alyson crafted a chapter on technology and negotiation.

Congratulations to Alyson and the entire team of authors on this terrific new resource!

RSI Welcomes the Honorable Nancy Katz to its Board of Directors

Just Court ADR, August 12th, 2019

RSI is proud to introduce the Honorable Nancy Katz (ret.) to our Board of Directors! Since 2017, Judge Katz has been working with JAMS as a mediator and an arbitrator, having served for 17 years as an Associate Judge on the domestic relations bench in the Circuit Court of Cook County (Chicago), Illinois. Prior to her appointment to the bench, Judge Katz served as Assistant General Counsel for the Illinois Department of Children and Family Services and as Project Director and Staff Attorney for Legal Assistance Foundation of Chicago.

Judge Katz is active as an educator in family law issues for judges, attorneys and the public. As a Judge on a domestic relations calendar for 17 years, Judge Katz has substantial judicial and settlement experience in all kinds of family law cases. The American Academy of Matrimonial Lawyers recognized Judge Katz in 2013 with its prestigious Samuel Berger award recognizing her “high(est) standards of integrity, courtesy, knowledge of family law and the extraordinary ability to solve human problems.” Judge Katz received her undergraduate degree from Northeastern Illinois University and her law degree from Chicago-Kent College of Law, Illinois Institute of Technology.

RSI is proud to have Judge Katz join our Board and we hope you will join us in welcoming her to our organization!