ADR FROM A MEDIATOR'S PERSPECTIVE

Lynette Fons

When I started practicing law 12 years ago, you didn't hear anything about mediation. Then, about eight years or so ago, trial lawyers started talking about it, but few litigators knew much about the process. Mediation was looked at with suspicion by lawyers and their clients. How did it work? What was expected of the participants? What do you take to a mediation session? Besides being "new," mediation was being court-ordered without input from the lawyers, and mediators were an unknown commodity. Times have changed.

Judges still order mediation, but the participants go more willingly and often have informed the court that they agree to mediation, have selected a mediator or even that they have settled their case through mediation without the necessity of court intervention. Sophisticated clients often suggest mediation, have opinions as to when in the life of the case mediation should be attempted and have preferred mediators. Lawyers for the most part have come to understand that even if the case doesn't settle, time spent preparing for mediation and spent eye-to-eye with the opposition and their own client has been time well spent. They realize that their preparation for mediation will easily translate into trial preparation or the groundwork for post mediation settlement.

I have an active trial practice and have served as a mediator by judicial referral and attorney request. As a trial lawyer, I am an advocate during mediation. As a mediator, I am a neutral third party. From these perspectives, I offer legal assistants the following advice.

When to Mediate

Mediations can be conducted any time before litigation is initiated, during discovery, while the parties are awaiting a ruling or when the case is on appeal. Unless court-ordered to take place within a specific time frame, the most opportune time to mediate will depend on the nature, facts and value of the case, the sophistication of the parties, litigation strategies and/or budgetary constraints. A determination should be made as to whether the issues have been crystallized sufficiently for the participants to appreciate them as well as their defenses and exposure and whether appropriate parties can be assembled. An early mediation can substantially reduce defense costs, but your case may require discovery before the decision makers can make an informed decision relative to settlement. Unless your practice is routine and you have been given marching orders to follow for a particular type of litigation, the lawyers and your client should be involved in determining when the case should be mediated.

Select a qualified mediator

Currently, there are no state licensing, certification procedures or mandated educational requirements in place to guarantee minimum qualifications for the available pool of Texas-based mediators. As a consequence, the term "mediator" can represent or be applied to persons, including non-lawyers, of various levels of expertise and training. Participants should be comfortable with and trust their mediator. I have no experience with non-attorney mediators but, for a matter in litigation-or likely to be litigated-I would favor an attorney mediator absent special circumstances.

Consider the persons who will be attending mediation and their preferences and peculiarities. Although not the most "politically correct" concept, there may be circumstances where a mediator of a certain sex, age, level of experience or style would be most effective. Special skills such a fluency in a foreign language might also facilitate the level of communication necessary to promote case resolution. Your own interpersonal skills and knowledge of the case will help you make these initial assessments.

When confronted with a mediator you do not know, ask questions. Ask lawyers in your firm about mediators they have used and liked. Ask your fellow legal assistants for recommendations. Who do they call when scheduling a mediation? If you are scheduling mediation for a client whose representatives frequently attend mediations, the client can be a valuable resource. Your client may direct you to a mediator they have used and liked. This approach has the benefit of insuring the client will be happy with your choice of mediator.

Professional organizations exist which are organized to promote alternative dispute resolution procedures such as mediation and to serve as a resource and network for their membership. Mediators may be - but are not required to be - affiliated with professional organizations. While no assurance that attorney mediators affiliated with a professional organization will serve your needs, organizations such as the Association of Attorney Mediators and the Society of Professionals in Dispute Resolution (SPIDR) have minimum training and experience requirements for their members. Many professional organizations will provide a roster of mediators in your area, upon request.

And ask the mediator for a resume. The 1987 Texas Alternative Dispute Resolution Act outlines suggested qualifications for neutrals in court-annexed alternative dispute resolution proceedings. These include a "basic training" program providing 40 classroom hours of training by an alternative dispute resolution system or dispute resolution organization approved by the court. The family courts generally require additional training specific to family dynamics, child development and family law disputes. Some mediators keep a count of and will provide you with the number of mediations they have performed. Again, ask questions, be proactive and do not be afraid to try someone new. And, everything else being equal, the mediator who serves a nice lunch, preferably with cookies, is almost always a good choice.

Consider the subject to be mediated

Because the mediator is a neutral facilitator who does not advocate a position, decide the facts or issue a judgment, and because the parties ultimately decide whether settlement will be reached, it is often not important for the mediator to be an expert in the subject matter of your dispute. If, however, the case is complex or esoteric either legally or factually, experience in the subject matter can be a plus. If the case is multiparty or fraught with personality conflicts an experienced mediator who has worked under these circumstances in the past may best be able to help the parties overcome these potential barriers to case resolution. Absent a mediation that requires "special handling" or a "special mediator," armed with the case background provided in the attorneys' premediation information sheets or position papers, their own special knowledge of the mediation process and capabilities in the area of shuttle diplomacy, a capable mediator should be prepared to enable the parties to explore and examine the facts of their case and possible settlement options.

Pricing

There are no rules here other than what the traffic will bear. However, with a little effort on your part you should be able to find a mediator in your price range. Most participants seem to be paying from $250 to $1600 per party per day, although some mediators charge less and others in excess of these amounts. I currently charge $650 per party for a full day of mediation involving two parties and reduce my per party fee if additional parties participate. I do not base my fee on the amount in controversy, although some mediators do. I will also consider special circumstances. The fee charged for mediation will likely be a factor of who the mediator is, the amount in controversy and/or the number of parties participating in the mediation.

To decide what you can or should agree to pay, know your client and your case. Some clients are unwilling to or prohibited from paying over a set amount for the services of a mediator. Some municipalities fall into this category. For a complex or high-dollar case, a skilled mediator charging "top of the line" prices may be worth every penny of the fee. On the other hand, selecting the same mediator for a case involving limited damages might not be cost effective.

Be aware that a too-large mediation fee may become a barrier to an otherwise acceptable settlement if expenses on the file are to be paid out of the settlement funds. This does not mean a small case can't be mediated. Often these cases are ideal candidates for the process. For smaller cases that do not exceed a certain maximum amount in controversy, investigate the use of Dispute Resolution Centers in your county. These centers, present in most large population centers, will help you find a neutral third party to mediate your case at no charge. You might also choose a less-experienced mediator who will agree to mediate the case pro bono or who will negotiate with you to arrive at a more acceptable and affordable fee. Be creative and a bit bold. You will never know whether a mediator will be willing to reduce his or her fee to get your business unless you ask. Finally, if you run into price resistance by a party, options such as having the remaining parties cover all or a portion of the fee can be explored and may provide an acceptable solution to the problem.

Where to mediate

I have attended mediations in hotel rooms, sparsely furnished offices, the offices of opposing counsel and lush conference rooms. Mediations can be marathons and comfort and amenities such as phones, secretaries and fax machines are welcome. The offices of mediators vary but most offer the basics. If you have special concerns or needs, ask. In some instances, the mediator will not have an office that can accommodate the number of parties who will attend the mediation. If space is a problem and you want the mediator, be creative and look for suitable options. Beware that for some clients or attorneys, conducting a mediation at the office of an opponent may be awkward due to a reduced sense of privacy during caucus sessions or because the host may be perceived as having a "home turf" advantage. It is also more likely the host will be tempted to work on other matters instead of focusing on the mediation at hand. Some attorneys and clients could care less about where the mediation will take place if having the mediation at the office of a party can save money, cut down on travel time or provide greater comfort.

Scheduling

With a multiparty mediation, scheduling can be a headache. If you are using a popular mediator, if your mediator is also involved in an active legal practice or if the attorneys and clients in the case have more on their plate than the case to be mediated, you may have to schedule your mediation several months in advance. If more than one mediator can be agreed upon you might determine the schedules of several of them and select the mediator whose schedule is best for the parties. If possible, avoid calling around with only one or two available dates. If the dates present a conflict with anyone you are back to square one. Try circulating a calendar showing two or three months with dates that do not work for you scratched out. Also send a letter asking the other participants to circle good dates or alternatively scratch out bad ones and return the calendars by facsimile so you can compare the calendars and select dates suitable for everyone. You will likely get a better selection of dates this way with a lot less hassle. Once you arrive at a suitable date, remember to confirm the date with the mediator and the parties as quickly as possible. Calendars change rapidly and a delay in confirming your mediation date may result in the need to reschedule the mediation.

When booking flights or working with over-booked schedules, realize that most mediations last a full day and it is possible for a mediation session to go into the evening hours. Do not be too optimistic and schedule your attorney or client on a return 3:00 p.m. flight or for a mid-afternoon meeting. When an attorney or client leaves a mediation, the process often shuts down. This upsets everyone at the mediation and interferes with a process that, if given another hour, may have resulted in the parties resolving their case.

Preparing for Mediation

You are likely one of the more informed persons in your office relative to the case being mediated, the mediator on the other hand, knows even less than the lawyer you work for. If the mediator requests the preparation of an attorney information sheet or a letter outlining the facts of the case and the parties positions, the information received in return may be the mediator's only introduction to the background of the case before meeting with the parties. As the mediation goes forward, the mediator learns more about the dispute through the parties opening statement and discussions during general session or separate caucuses, but this can be a slow process. When preparing information for the mediator, do not confuse the mediator with your opponent. The mediator's file is privileged. The other side will never have access to the information you provide to the mediator or access to the mediator's file. The mediator's files, if retained at all following mediation, by law cannot be subpoenaed. Likewise, mediators are not at liberty to disclose confidences received from either party without permission to do so. During the mediation, the mediator will serve as a go-between and devil's advocate. The information you provide to the mediator helps prepare the mediator for both these roles. And do not wait until the last minute to submit your position paper if you want to receive the full benefit of your efforts. Most mediators will review all information provided by the parties if it is timely provided, but they do not have time to read once the parties arrive and the mediation session begins.

Some lawyers haul their entire file to mediation, others bring depositions, medical records, or hot documents only. If you have the resources-and if the case warrants the investment of your time - a mediation notebook containing items such as live pleadings, select discovery, critical documents, deposition excerpts and relevant statutes will likely be an asset during mediation. If you have ever assembled a trial notebook you have the general idea of what belongs in the mediation version. If you have reviewed and/or summarized discovery or other information relevant to your case, a memo pointing out inconsistent statements or problems present in the other sides case can be helpful when a party is asked to explain why the other side should accept an offer far lower than the last demand. Categorizing records by expected areas of interest will also provide ready access to decisive information. It is not unusual during mediation for a party to refer to a witness statement, accident report, incriminating photograph, deposition excerpt or the like as a reason why their case is worth what they are claiming. Having a copy of the document, deposition or other item at the mediation is a distinct advantage, allowing an opportunity to assess the evidence and determine if, indeed, the situation is as dire as your opponent would have you believe.

Additionally, unless there are strategic reasons why a smoking gun or important document should not be shown to the other attorney and his client, it can be an effective negotiation tool to have a copy of the incriminating photograph or excerpt available. Your opponent may not have focused on a point your side thinks is important, or may not have a clear recollection of the evidence. It is also possible that your client-or theirs-has been informed of the progress of the case generally but has never seen the evidence firsthand. If the mediator is provided with information and permitted to disclose some or all of it to the other side in a mediation, expectations can change and seemingly deadlocked negotiations can move forward. I have seen it happen.

Another reason to give some thought to the materials taken to the mediation is to avoid the frustration of being told by the mediator that he has permission to inform you that a witness statement (which you have left at your office) explains why you lose the case or are entitled to far less than you have been requesting. Ideally, a person paying money or accepting an offer should be in a position to satisfy doubts about a piece of evidence before agreeing to a settlement figure.

Since both sides have the opportunity to make an opening statement consider the use of visual aids, video tapes or blowups. The lawyers may be familiar with the materials you choose but the client on the other side of the conference table may, by reason of a carefully selected visual aid, begin to see his case in a new light.

Skilled attorneys with experience in the matters being mediated will likely have a good idea of the value of their case. On the other hand, out-of-town counsel, less-experienced lawyers and some clients may over - or underestimate the value of a case in your jurisdiction. Consider compiling information concerning the results of trials in similar cases. One source for this information is "The Blue Sheet." Published by Houston Trial Reports, Inc. and available by subscription, "The Blue Sheet" provides a compilation of information for cases called to trial during the publication's reporting period. The information includes the names of attorneys involved, the type of case, alleged injuries, the identity of expert witnesses and the dollar verdict or disposition of the case. "The Blue Sheet" has long been published in the Houston area and is now being published for other Texas markets. Evaluating a case's settlement value is not an exact science: much depends on the facts of the case, the stage of litigation and other factors. Having knowledge concerning the value of other cases can be helpful whether the information is derived from the attorney's own experience, the experience of other lawyers in the firm or from published sources or data bases.

In summary, anticipate the needs of the participants, be creative and ask questions and if you end up with a long list of mediators acceptable to everyone, do not be afraid to inquire about the lunch menu.

Lynette Fons is Of Counsel to McFall, Sherwood & Sheehy, P.C. a Houston law firm specializing in civil litigation. Fons has practiced civil trial law in State and Federal District Courts for 12 years. She has experience on both sides of the docket and has tried cases involving allegations of professional negligence, products and premises liability, breach of contract, intentional torts and deceptive trade practices. Fons has served as Guardian Ad Litem and Mediator by judicial appointment.
Fons graduated Cum Laude from South Texas College of Law, where she served as Editor-in-Chief of the South Texas Law Review and was a member of the Order of the Lytae. She holds a Bachelor of Business Administration degree with Honors from the University of Texas, Austin. Fons received additional legal training at Harvard Law School in Negotiation, the National Institute for Trial Advocacy (NITA) and the American Academy of Attorney-Mediators, Inc.