Mediation

“Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.” - Abraham Lincoln

An Overview of the Mediation Process

The discussion that follows is written particularly for attorneys to give to their clients and for those who are not familiar with the mediation process.

However, even if you are already familiar with the mediation process, you might find it interesting, but in any event, your attention is directed to the paragraph regarding Settlement Authority and Good Faith below.

Definition of Mediation Process

Mediation is a process through which a neutral third party assists people in finding their own mutually acceptable solution to their differences.

Mediation Functions and Process

As a mediator or neutral third party, it is the mediator’s job to help you find your own solution to your differences.  Although we have had over 50 years experience as trial lawyers and trial judge, it is not our job to act as a judge or a lawyer. The mediator will not tell you what to do, but will try to help you ultimately decide what to do in your own best interest and/or that of your clients under the existing circumstances. Mediation is a consensual process between the parties, not a judgmental one. People who attend a mediation conference in good faith do so because they want to resolve their differences by mutual agreement rather than proceeding to litigation seeking a mandate.

Generally, the process works like this: First, the mediator will briefly meet with each side to explain his role and answer questions, followed by a joint meeting with each side presenting a brief statement of the issues and their position.  Next, the mediator will meet with each side in a separate, private session in an effort to better understand individual interests. Separate sessions will continue for awhile and then there may be another joint session until, hopefully, everyone reaches an agreement. The mediator will confirm the agreement with everyone orally and/or it can be reduced to writing, if preferred.

Confidentiality

Communications (written and verbal) during the mediation are confidential, and are protected by the Texas Civil Practices and Remedies Code 154.073 (1987) and may not be used as evidence in court or an administrative proceeding. Everything you tell the mediator during the separate sessions is confidential, and the mediator will not communicate anything learned in a private session to anyone without permission to do so. Obviously anything said during a joint session that might lead to something through the discovery process is usually not protected by law. Private sessions are to encourage frankness and candor; you seldom, if ever, have this kind of opportunity in a traditional trial setting.

Advantages of Mediation

One advantage a mediation conference has over a trial is that you are not bound by the rules of evidence and procedure. We can proceed informally making the rules as the conference progresses. Remember you have control over the ultimate destiny of the mediation conference – you are not turning this ultimate decision-making process over to a judge or jury, it is your process and your decision.

Rules

The only rules are as follows:

  • Each person is asked not to interrupt one another. If you have any questions or comments, please jot them down – the mediator will make sure everyone has a chance to explain and state each of their concerns and positions. With your attorney’s permission, the parties or corporate representative(s) are encouraged to participate, particularly during the private sessions.
  • The mediator will ask everyone to agree that it will be my decision, as mediator, to continue, or to recess for awhile, or decide whether or not we have reached an impasse. The reasoning for this is that I have the benefit of the input from each private session, thus usually providing me more insight regarding the mediation process and the prospects of a resolution.

Private Sessions and Mediation Role

When I meet with you in a private session, please do not attach any significance to the order or length of these private sessions. I will meet with each of you separately as I deem necessary to move the process along. Sometimes it simply takes longer to talk with one side than the other because of the issues; different interests and the length of time has nothing to do with the importance or lack of importance – everyone’s interest is equally important to me.

During the private sessions I may play the role of “devil’s advocate” and argue with your position(s). It might appear I am taking a side or I am criticizing; I am not. My reason for this is to get each of you to re-evaluate, or re-consider, or look at your position from a different perspective. You have been living and working with your side of the dispute for some time and may be emotionally or professionally attached; this is normal. The only information I will have about the dispute will be the confidential pre-hearing position documents (if the attorneys have elected to submit them) and opening statements presented by the attorneys, so I will have a very objective, neutral position. This means I may be able to point out something you may not have thought about because you are so close to your side of the case either as a party or advocate, or I might be able to suggest a perspective(s) that a judge or jury will have if the case proceeds to trial (i.e. a strength of the other side or a weakness on your side or vice versa.)

Consensual Cooperation and Problem Solving Process

I want to re-emphasize that Mediation is a consensual process and you have control over the outcome. If there is not a final agreement, you can still go to the courthouse.

On the other hand, if you go to court and litigate before a judge or jury, even though most judges and jurors are very conscientious and fair, you are asking persons to arbitrarily resolve a dispute who will not have the same degree of flexibility, interest, and control over the issues as you do as litigants.

 Everyone Must be Realistic

It is very important that each of you realistically determine in your own mind what a true objective value or position of your side of the case might be before a judge or jury. Next, be sure you understand that to even hope to arrive at this figure or position you must continue to litigate with more wear and tear and stress on your mind, body, business, pocketbook, and probably your family. And when you do get to court there is still no guarantee what the outcome might be. There could be a mistrial and you might have to start all over again, you might get nothing (“poured out”) or the other side might get a big verdict or both sides might get hit with a verdict neither wants or expects, (“shock verdict”) the other side can appeal. In litigation you gamble, in mediation you know what you are getting. Litigation oftentimes involves high risks based on educated, but theoretical probabilities. Mediation involves low risks based on things actual, material and realistic.

Compromise and Cooperative Problem Solving Process

Naturally, you must approach the mediation process with a spirit of compromise and a reasonable mind toward cooperative problem solving. A compromise might not yield what a successful high risk endeavor will, but the loss or down side is not usually as great. A compromise is not a roll of the dice. In mediation, you usually do not “hit a homerun,” but you usually do not “strike out” either. If anyone has their mind set in concrete at either end of the spectrum and plans to be completely unyielding, then the dispute probably needs to go to arbitration or to trial.

Settlement Authority and Good Faith

1. All parties and/or representatives whose interest will be affected must be at the mediation conference.

2. If there is a possibility of a structured settlement, please bring a range of annuity figures.

3. Settlement authority should be adequate to address an extreme change of view during the mediation. Although phone calls to the home office are interesting, they are not a substitute for on-site negotiation and settlement authority and they can be very counter-productive. Simply coming to the mediation with little more than your pre-conceived notion of the value of the case is usually a waste of time that can be viewed as “bad faith.” Experience has taught that the negotiator at the mediation conference can better represent his/her side of the dispute when there is an uninterrupted flow of events and no “armchair” quarterbacks back at the office. Also, usually when there is more than adequate authority, the dispute is usually satisfactorily resolved for all involved with much less ado.

In conclusion the mediation process allows the attorneys and parties an informal, flexible, cost-effective way to resolve a dispute.

Moreover, an Agreed Settlement is a problem solved by people reasoning together rather than a conflict won or lost.

Mediation Fee Schedule

Mediation fees are based on a fixed amount per party per day.  A full-day mediation usually begins at 9:30 a.m. and continues until completed.  An additional charge will be assessed if mediation continues past 6:00 p.m.  A working lunch is provided.

The mediation fee is based upon: (1) the amount in controversy, (2) the number of parties, and (3) the experience level of the mediator.  The “amount in controversy” is the total of all claims (including counterclaims and attorney’s fees) but excludes court costs or exemplary damages.  All parties represented by the same attorney or law firm are considered one party for the mediation fee.

 

Amount in Controversy

Price Per Party

 
2 Parties
3 Parties
4 Parties

Less than $300,000

$1,250

$1,125

$1,000

$300,000 - $999,999

$1,500

$1,250

$1,125

$1,000,000 – up

$1,650

$1,500

$1,250

One-half day mediations, when appropriate, will begin at 9:30 a.m. or 1:30 p.m., and the fees are $750 per party for 2 parties and $650 per party for 3 parties.

As scheduling permits, County Court cases can be mediated on a half day, three hour morning or afternoon sessions for $500 per party.

Fees for mediations involving more than four parties are arranged on a case-by-case basis.