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Jamesnew

Can I Settle This Now, Pay The Other Party, And Stop Paying My Attorney?

TABLE OF CONTENTS/QUESTIONS

  1. WHAT IS MEDIATION?
  2. WHAT IS ADR?
  3. IS MEDIATION AGREED OR ORDERED?
  4. IS MEDIATION CONFIDENTIAL?
  5. DO I HAVE TO HAVE AN ATTORNEY REPRESENT ME AT MEDIATION?
  6. CAN WE MEDIATE WITHOUT A MEDIATOR?
  7. WHO PAYS FOR MEDIATION?
  8. IS MEDIATION “BINDING”?
  9. OKAY, WHAT REALLY HAPPENS AT MEDIATION?
  10. CAN YOU MEDIATE, THAT IS, JAMES J. DOYLE III?

“THOUGH AN UNSUCCESSFUL MEDIATION MAY BE DUBBED A WASTE OF MONEY, A SUCCESFUL MEDIATION, MAY BE PRICELESS, ESPECIALLY IN THE LONG RUN. MEDIATION IS OFTEN AN EXPENSE THAT IS WORTH THE RISK, AND ALMOST ALWAYS WORTHY OF CONSIDERATION, ESPECIALLY AT THE BEGINNING OF A CONFLICT.”

I. WHAT IS MEDIATION?

Mediation

“Mediation may be just what you need.”

Mediation is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. All participants in mediation must participate in the process. Mediation is a “party-centered” process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses techniques to guide the process in a constructive direction and help the parties find their optimal solution. A mediator is facilitative in that she/he manages the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms, while refraining from providing prescriptive advice to the parties ( e.g., “You should do . . .”).

II. WHAT IS ADR?

Mediation

“Many times ties are worn to mediation but they are not required.”

ADR is the acronym for Alternative Dispute Resolution and refers to any means of settling disputes outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation including attorney fees, and time delays continue to plague litigants, courts in Texas have experimented with and utilized ADR programs, mostly centered around mediation. Some of these programs are voluntary; others are mandatory. While the two most common forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. It is the preeminent mode of dispute resolution. Negotiation allows the parties to communicate and/or meet in order to settle a dispute. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution and typically costs the parties less than other forms of ADR such as formal mediation.

III. IS MEDIATION AGREED OR ORDERED?

Mediation

“They say that a successful mediation is one in which all the parties leave upset (arguably because one party gave more than they planned and the other party accepted less than they expected).”

Mediation may be ordered by a civil court, but can always be agreed upon by the parties either ahead of time through a prior agreement such as a clause in a contract saying the parties must mediate before filing a lawsuit, or prior to an impending lawsuit in an attempt to reach an agreement prior to the expense and cost of litigation. Whether a court orders mediation depends on the court. For example, most courts in Dallas County order their cases to mediation prior to trial. However, certain courts in other counties do not order mediation for their cases as a matter of course, although such courts may order mediation if they determine that such is necessary in a particular case. Many times a court’s local rules will provide information on mediation such as whether mediation is ordered as a matter of course.

IV. IS MEDIATION CONFIDENTIAL?

Mediation

“The mediator attempts to stop the fighting and promote a reasonable compromise so the parties can move forward focusing on more positive things than antagonistic conflict.”

Most probably “yes.” Most courts will not allow evidence in the form of settlement communications. All communications during mediation are arguably settlement communications and thus most probably prohibited as evidence. There are exceptions to this rule that I will not delve into presently. However, courts want cases to settle at mediation, and know that mediation is more apt to be successful if the parties feel free to engage in open and honest communication about their claims, defenses, related facts, etc. Thus, courts take the disclosure of settlement communications very seriously, and there seems to be a presumption that anything that happens at mediation is off limits for the courtroom.

V. DO I HAVE TO HAVE AN ATTORNEY REPRESENT ME AT MEDIATION?

Mediation

“If successful, mediation can eliminate conflicts, but it comes with a price. “

If a court orders mediation the attorneys have to attend (unless a party is pro se, that is, representing his, her, or itself, and doesn’t have an attorney). If mediation is done apart from a court order, attorneys are not required to attend, but such is often advisable.

VI. CAN WE MEDIATE WITHOUT A MEDIATOR?

Mediation

“Mediation is a time to put the bullets down in order to try and a find a solution that works for everyone. If there were no financial or emotional costs to litigation, mediation might not be such a sought after option.”

“Yes” and “no.” If a court orders mediation you must use a mediator. If the parties agree to mediation ahead of time in a contract, the contract language governs, but usually a mediator is required. However, if the parties voluntarily mediate apart from a court order or contractual requirement, the parties can agree to any form of mediation they like, even one that doesn’t utilize a formal third party mediator. If the parties are not represented by counsel, an informal mediation without a mediator is impossible and would just amount to a negotiation (which I typically encourage prior to mediation). But if the parties are represented by counsel, or even just one party is represented, the attorney(s) can facilitate an informal mediation by essentially taking on certain roles of the mediator. An informal mediation using counsel can many times lead to an agreement prior to the expense of hiring a formal mediator and/or the filing of a lawsuit.

VII. WHO PAYS FOR MEDIATION?

Mediation

“Mediation is typically a confidential process in order to promote honesty and the exchange of true facts in the hope that this can more effectively lead to resolution over, for instance, lies and posturing.”

Typically a court order requires the parties to split the mediator’s fees equally. If the parties agree to mediation, costs are divided as agreed. The total mediator fee can start at the very, very low end, of say $200 for a half day, and climb easily to $1,000 and up, again, for a half-day. A full day mediation can start in the thousands of dollars depending on the number of parties, the complexity of the case, and the mediator selected. Some mediations can even move into the tens of thousands of dollars. The court has discretion to order one party to pay for mediation or a disproportionate division of the cost. If the parties have attorneys, they will also have to pay their counsel for their time preparing and attending mediation (pursuant to their particular attorney-fee arrangement). The costs of formal mediation can be significant, but the benefits of a successful mediation may be priceless.

VIII. IS MEDIATION “BINDING”?

Mediation

“A mediator can feel like a referee at times, but mediators usually don’t use whistles.”

The term “binding” is typically used in relation to arbitration, and not mediation. If mediation occurs, it is usually required or advisable that every party come with an open mind and make a good faith effort to honor the mediation process with a sincere attempt to settle the case. However, settlement is not required, and unsuccessful mediations are probably as common as successful ones (I don’t know of the exact statistics or if they exist

IX. OKAY, WHAT REALLY HAPPENS AT MEDIATION?

It is not unusual for parties to never talk or interact directly during mediation. Sometimes parties do not even see one another. Usually the parties will drive to the mediator’s office, at the appointed date and time, and will be lead into a conference room where they and their counsel will stay during the entire mediation. The other party will be in another conference room. Though the parties will typically not leave their conference rooms, sometimes a joint session is held where the parties come together in one room for a short period of time for introductions and possibly summaries of positions or dialogue on a particular issue. However, joint conferences have become rare, and most mediations do not conduct them. During the mediation, the mediator will travel back and forth between each room, communicating with both parties in an attempt to move each of them towards settlement. If successful, a settlement agreement will be signed at the end of the mediation, although there may be a further need for more detailed settlement documents to be drafted and signed in the days subsequent to the mediation. If unsuccessful, the parties will leave and start or resume civil litigation in the courthouse.

X. CAN YOU MEDIATE, THAT IS, CAN JAMES J. DOYLE III ACT AS A MEDIATOR?

I can surely perform informal mediations for my clients, and have experience doing so. Though I am not an experienced mediator in the traditional sense, I would be willing to mediate if asked and if the subject matter of the dispute is something I feel comfortable with.