The Mediation Process – An Alternative To Litigation
Every case is different, and every case requires a unique strategy tailored to the facts of that situation. While many disputes require lawsuits to be filed, telling the opposing party “we will see you in court” and leaving the ultimate decision in the case up to a judge or jury is not always the best tactic. As such, the best litigators have an extensive toolbox of alternative dispute resolution techniques. One such tool is mediation.
The Mediation Process
Mediation is a process similar to a negotiation, but uses an impartial, third-party mediator to help facilitate settlement discussions between the parties. Mediation is very different from arbitration in that the mediator is not there to make any judgment or ruling, and cannot “force” the parties to enter into a settlement agreement. Further, a mediator cannot be called to testify against a party, nor can he disclose confidential information about the case.
While the mediator does not have any direct power over the parties or the case, I’ve found that mediation can be a tremendously effective tool. The presence of a mediator can help give a “reality check” to a party. Again, while a mediator does not act as a judge or an arbiter, a mediator often will “push back” on any positions or arguments that he thinks are unsupportable. Allowing a party to see how an impartial mediator views his position can often cause that party to reassess his level of risk, and could cause him to make more reasonable settlement concessions than he might have offered previously.
Another benefit to mediation is the possibility of negotiating creative solutions to disputes. When a case is left up to a judge or jury, the types or judgments that they can enter are limited by the authority granted to them under applicable laws and procedures. However, in mediation, the parties have an opportunity to offer and negotiate settlements that may work better for the parties than a simple monetary judgment would.
One of the keys to an effective mediation is timing. Optimally, the facts of the case will be clear to both parties prior to any mediation. This allows the parties to have a better idea of the “value” of the pending claims, and for both sides to assess their level of risk. However, on simple cases (with clear facts) and a high probability of settlement, it is often prudent to try to mediate the case as quickly as possible in order to attempt to settle the dispute before both sides begin to incur substantial legal fees.
Unfortunately, litigants don’t always get to choose when or if they have an opportunity to mediate. One party cannot force the other party to mediate absent a court order, or a contractual agreement requiring mediation. Many courts (including those in Lubbock County) order parties to attempt to mediate prior to their trial date, but if one of the parties refuses to negotiate in good faith, there aren’t many options for the other party but to report to the judge that the mediation resulted in an impasse and begin to prepare for trial. Nevertheless, parties are generally amicable to the concept of mediation since most litigants would rather try to settle a case than “roll the dice” on the final ruling of a judge or jury.
A Lawyer’s Role in the Mediation
The assistance of a lawyer familiar with the mediation process can be crucial to steering a dispute towards a fair settlement. I have worked with good mediators and bad mediators, and have had success with both. While I obviously would prefer to work with only good mediators, my experiences with both have helped me to develop specific skills and tactics that are helpful throughout the mediation process. These skills are generally related to communication, as effectively communicating with the mediator is absolutely vital, and often requires significant work before the mediation even begins.
Frequently, I will prepare a letter to the mediator that outlines my client’s position, outlines the significant facts and background of the case, and details what outcome we are hoping to achieve at the end of the mediation. This gives the mediator an understanding of the case prior to the mediation and saves a significant amount of time on the day of the mediation as the “basics” of the case have already been communicated to the mediator.
It is also in the preliminary letter that I usually indicate to the mediator whether I believe it is better for the mediation to occur with the parties in the same room, or if I believe that the parties need to be separated during the mediation. This is often a crucial decision for the mediation. While some mediators have a particular preference (some prefer the parties to speak directly to each other in hopes that they can talk through their positions) I’ve found that in a lot of situations, certain personality conflicts and “hurt feelings” over the dispute can cause for unproductive settlement discussions where the parties focus too much on the past, rather than focusing on ways to effectively resolve the dispute before them. It is in these situations that I advise that the parties be seated in separate rooms, and that the mediator conveys any offers back and forth.
On the day of the mediation, I will continue to act as advocate for the client in communicating with both the mediator and the other side. This will consist of effectively communicating our case and the underlying facts, along with communicating our offers to the mediator and the opposing party. I also will advise the client of the legal implications of the settlement offers being discussed and help them to determine the pros and cons of accepting, rejecting, or countering the offers presented.
At the end of the day, our hope is always that the parties are able to find some overlap in their positions in order to come to a settlement. If that happens, a mediated settlement agreement will be signed that day, with me drafting the final settlement in the days.
A Skilled Attorney Can Help Guide You Through The Mediation Process
The information outlined above is merely a basic summary of Texas law and does not cover the full breadth of the mediation process, nor the specific considerations required to determine the best procedures and choices for a particular business. A skilled attorney can discuss your business with you to advise of your best options, and tailor contracts and best practices to fit the specific needs of your business.
Please feel free to make a call today to schedule a free consultation with me to discuss your businesses’ needs.
– Thomason
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