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MEDIATION: AN EFFECTIVE MEANS OF SETTLING LAWSUITS
The Mediation Process
Mediation is a form of settlement negotiation conducted and assisted by an impartial attorney 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 meet with the mediator in a general session. During this session, the mediator explains the process and sets forth the ground rules. Afterward, each attorney 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.
After the general 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 cannot be repeated outside the caucus except by express permission of the party. This confidential meeting allows counsel 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 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 process 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 brings the parties back together figuratively or literally, for the third stage; closure. The mediator assists the parties in memorializing the essential terms of the agreement, signed by each party.
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.
THE EFFECTIVENESS OF MEDIATION
Mediation works. For example, federal and state judges in Dallas have been utilizing attorney-mediators trained by the Dallas Bar Association. Thus far, at least 75% of cases referred to those mediators have settled as a result of the mediation, and some mediators have enjoyed a success rate of over 90%. Several reasons account for this success:
1. The mediator neutralizes hostility and emotion inherent in many lawsuits. During the caucus sessions, the parties do not see or communicate directly with each other. All communications are filtered through the mediator, who serves as a lightning rod for vehemence and frustration.
2. The mediation process causes parties and counsel to undertake a realistic risk/benefit analysis of continued litigation. Often, unrealistic expectations of a client or his counsel impede settlement of a lawsuit. The mediator serves as a catalyst for attention to reality.
3. Because the mediator serves as a communications bridge between the parties, the mediator has knowledge of each party's interests and goals extending beyond the knowledge of any one party. Thus, the mediator is in a unique position to suggest solutions and explore settlement possibilities.
4. The mediator is a neutral intermediary and does not act as advocate for either party. The mediator serves as a neutral advocate of settlement, encouraging and prodding the parties toward an agreement.
5. Likewise, in cases where I assist in preparing a written settlement agreement in connection with the provisions the dispute resolution services, each participant to the mediation should have the settlement agreement independently reviewed by the participant's counsel before executing the agreement.
THE COST OF MEDIATION
Most mediations require only one day and, typically, cost no more than a single deposition. Some mediators charge an hourly fee, and others charge a flat daily rate that varies according to the amount in controversy, nature of the dispute and the number of parties.
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