Mediation: An Effective Means of Settling Lawsuits
The process of mediation is fundamentally an assisted settlement negotiation. The proceedings are private, confidential and privileged. The mediator cannot be a witness in this matter and will report to the court only that the case did or did not settle. The mediator will facilitate settlement negotiations between the parties but will not impose a settlement upon anyone and will not act as an advocate for any party. The parties remain responsible for achieving a mutually acceptable agreement.
In order for the mediation process to work it is necessary that:
- All individual parties and/or corporate agents with full discretion, authority, and information to resolve the matter (including the insurance representative, with full limits discretion, where insurance is involved) be present for the entire process. Client participation is essential;
- Adequate time be allocated for the process (generally one full day);
- All parties and their counsel commit to give their best efforts to resolve the case by agreement; and
- All parties and their counsel bring to the mediation their entire file(s) and/or any additional information necessary for us to address every issue between the parties.
The Mediation Process
Mediation is a form of settlement negotiation conducted and assisted by an impartial third party trained in the art of settling lawsuits. Unlike arbitration and other kinds of alternative dispute resolution, mediation is non-adjudicatory. The mediator makes no findings of fact or law, whether binding or non-binding.
The mediation process, a private meeting, comprises three stages. First, all parties and their counsel, if applicable, meet with the mediator, sometimes in a joint session and sometimes privately. During this session, the mediator explains the process and sets forth the ground rules. Afterward, each attorney, if applicable, outlines his or her client’s theory of the case and the legal and factual issues. The clients are encouraged to speak, but are not required to do so. The mediator asks clarifying questions, determines areas of agreement, and inquires as to the status of prior settlement negotiations.
If the initial session was a joint session, the parties separate into different conference rooms for private meetings called caucuses; the second stage of mediation. These caucuses are confidential. Anything said to the mediator during a caucus will not be repeated outside the caucus if the party desires that it be kept confidential. This confidential meeting allows counsel, if applicable, to express matters that he or she would be unwilling to state in the presence of opposing counsel. Here, the mediator, the party, and counsel, if applicable, undertake a candid discussion of risks, the party’s interests sought to be protected, settlement flexibility, and strengths and weaknesses of the case. At some point during the caucus stage, the mediator will begin serving as a shuttle diplomat between the parties, conveying settlement offers back and forth.
When it appears that a consensus has been reached the mediator assists the parties in memorializing the essential terms of the agreement which is signed by each party and their counsel, if applicable.
Privileged and Confidential Communications
The entire proceeding is privileged and confidential. Indeed, the law prohibits the mediator or any party from telling the court anything said during the mediation. At most, the mediator may report that the case did or did not settle. See Tex. Civ. Prac. & Rem. Code 154; Tex R. Evid., 604.
Effectiveness of Mediation
Mediation works. For years judges and attorneys throughout the country have been using mediation as an effective means of resolving disputes. Here’s why:
- The mediator neutralizes hostility and emotion inherent in many disputes.
- The parties and counsel undertake a realistic risk/benefit analysis of litigation.
- The mediator serves as a bridge between the parties and has knowledge of each party’s interests and goals extending beyond the knowledge of any one party.
- The mediator serves as a neutral advocate of settlement, encouraging and helping the parties achieve an agreement.
- Communications with the mediator are private, privileged and confidential.
- The cost of mediation is a fraction of litigation.
Rules for Mediation
1. Definition of Mediation. Mediation is a process under which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement or understanding among them. The mediator may suggest ways of resolving the dispute, but may not impose his own judgment on the issues for that of the parties.
2. Agreement of Parties. Whenever the parties have agreed to mediation they shall be deemed to have made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement to mediate.
3. Consent to Mediator. The parties consent to the appointment of Tom Bartley as Mediator and he shall act as an advocate for resolution and shall use his best efforts to assist the parties in reaching a mutually acceptable settlement.
4. Conditions Precedent to Serving as Mediator. The Mediator shall not serve as a mediator in any dispute in which he has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the Mediator shall disclose any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties.
5. Authority of Mediator. The Mediator does not have the authority to decide any issue for the parties but will attempt to facilitate the voluntary resolution of the dispute by the parties. The Mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties in achieving a settlement. If necessary the Mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice. Arrangement for obtaining such advice shall be made by the Mediator or the parties as the Mediator shall determine.
6. Commitment to Participate. While no one is asked to commit to settle his/her case in advance of mediation, all parties commit to participate in the proceedings.
7. Parties Responsible for Negotiating Their Own Settlement. The parties understand that the Mediator will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a settlement acceptable to them. The Mediator, as an advocate for settlement, will use every effort to facilitate the negotiations of the parties. The Mediator does not warrant or represent that settlement will result from the mediation process.
8. Authority of Representatives. Party Representatives must Have Authority to Settle and All Persons Necessary to the Decision to Settle Shall Be Personally Present.
9. Time and Place of Mediation. The Mediator shall fix the time of each mediation session. The mediation shall be held at any convenient location agreeable to the parties and the Mediator, or at the office of the Mediator, as the Mediator and the parties shall determine.
10. Privacy. Mediation sessions are private. The parties and their representatives must attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the Mediator.
11. Confidentiality. Confidential information disclosed to a Mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the Mediator. All records, reports or other documents received by a Mediator while serving in that capacity shall be confidential. The Mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceedings or judicial forum. Any party that violates this agreement shall pay all fees and expenses of the Mediator and other parties, including reasonable attorney’s fees, incurred in opposing the efforts to compel testimony or records from the Mediator.
In accordance with Sec. 154.073 no party or their representative shall rely on, attempt to, or introduce as evidence in any arbitral, judicial or other proceeding: a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute; b) admissions made by another party in the course of the mediation proceedings; c) proposals made or views expressed by the Mediator; or d) the fact that another party had or had not indicated a willingness to accept a proposal for settlement made by the Mediator.
12. No Stenographic Record. There shall be no stenographic, electronic or any other record of the mediation process.
13. No Service of Process at or Near the Site of the Mediation Session. No subpoenas, summons, complaints, citations, writs or other process may be served upon any person at or near the site of any mediation session upon any person entering, attending, or leaving the session.
14. Termination of Mediation. The mediation shall be terminated by the execution of a settlement agreement by the parties or by declaration of the Mediator to the effect that further efforts at mediation are no longer worthwhile.
15. Exclusion of Liability. The Mediator is not a necessary or proper party in judicial proceedings relating to the mediation. The Mediator shall not be liable to any party for any act or omission in connection with any mediation conducted under these rules.
16. Interpretation and Application of Rules. The Mediator shall interpret and apply these rules.
17. Fees and Expenses. The Mediator’s daily or hourly fee shall be agreed upon prior to mediation and shall be paid in advance or on the day of the mediation. The expense of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including fees and expenses of the Mediator, and the expense of any witness and the cost of any proof or expert advice produced at the direct request of the Mediator, shall be borne equally by the parties unless they agree otherwise.
Dispute Resolution Centers?
Everyone wants to save money and mediation is no exception. The typical way to try and save money on mediations is to go to a dispute resolution center, many of which charge a fee for the use of the facility and use community volunteers as mediators. Good people doing good works. And frankly, many disputes can be resolved this way. Simply getting everybody together sometimes is enough to get everyone talking and the problem(s) can be worked out. But some legal problems require more.
A lawyer with years of actual trial experience can use that experience to quickly analyze the facts of a given situation, know what the law is and how it applies to those facts, ask questions and engage in discussions with the parties and their attorneys to help them see things from a different perspective and propose solutions which someone without that experience, no matter how well intentioned, might not even know exist or are possible. This is what I do.
Since receiving my law license in 1977 I’ve done nothing in the law other than litigation. I’ve been involved in more types of cases than one can imagine or that I even want to think about, including, to name just a few: personal injury, products, premises and professional liability, insurance, real estate, family law, probate, guardianship, fiduciary litigation, deceptive trade practices, oil and gas, condemnation, business tort, contract, and even maritime and criminal. This broad experience gives me the ability to “get into the ballpark” quickly, analyze the situation and begin conducting a productive mediation.
Some problem(s) can be resolved by community volunteers at a dispute resolution center and in those instances money can be saved. But many problems require a greater level of experience and expertise. When the problems you have fall into that category, don’t be penny wise and pound foolish. If your problems can be resolved with the help of an experienced lawyer/mediator you will save much more money, time and energy in the long run as compared to not reaching a resolution and having to spend that time, money and energy completing the litigation process.