MAKING THE MEDITATION PROCESS WORK
As noted in an earlier comment on picking mediators, mediation has become a staple of the civil and family litigation process in Texas. Hardly any case gets tried without mediation first and many judges include mediation as part of routinely issued scheduling orders. Parties and their lawyers almost certainly have to participate in mediation, so permit us to offer a few suggestions for making the process work better:
- Understand what does and doesn’t happen in mediation. I had one family law client recently who kept having trouble distinguishing between mediation and arbitration, no matter how many times I explained the difference. Put simply, an arbitrator (sometimes a panel of three arbitrators) decides the case. The arbitrator hears and weighs the evidence and the arguments of the lawyers and decides who wins and who loses. Mediators do no such thing. They can only work at helping the parties arrive at an agreement. If the parties settle, the mediator may write up the agreement and it becomes, in effect, a binding contract between the parties. The mediator, however, doesn’t decide liability or award damages as an arbitrator does.
- Prepare the mediation ground. The lawyers can assist the mediator by writing a short, concise pre-mediation statement and submitting it in advance. This helps, even in ordinary car accident cases, basic breach-of-contract actions, and family disputes involving limited assets and simple custody issues. The mediator needs (1) to understand the facts and the applicable legal principles and (2) to know what interests drive each party. Sending a mediator pleadings and discovery responses may help (many mediators ask for them), but I get a lot more from a brief narrative drafted by each side describing the case and how they see liability, damages, and the basic legal and factual issues on which the case turns.
- Set realistic expectations of the mediator and the opposing party. Back in the day, before I’d been in many mediations as a lawyer and certainly before I started mediating cases myself, one of my old-school litigation mentors told me he liked a certain mediator because he would “knock sense” into the other side. I have to say that mediators taking that approach in today’s litigation world probably wouldn’t stay busy. Parties and lawyers don’t appreciate that kind of behavior. Good mediators listen, try to discern each side’s interests, and promote understanding between the parties. A mediator may have to get firm with one side or the other in letting them know they’re taking an unreasonable position, but expecting the mediator to hammer a party into submission only increases the likelihood of a failed mediation. Similarly, it’s not realistic, or helpful, to expect the other side to cave in under the weight of your evidence or your lawyer’s dynamic advocacy. Most cases arrive at mediation with (1) each side having positive and negative aspects to its case, (2) some intransigence on the part of both sides, and (3) each party confident they will prevail at trial. Expecting a quick capitulation just isn’t realistic.
In future articles, we’ll share other ideas about how to make the mediation process work and maximize the chances of settlement. In the meantime, call us at 281/367-8007 for information about how we can serve you as a mediator.