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I. What is Mediation?

A Simple Explanation

A mediator is a go-between, someone who helps two parties in dispute reach an agreement. A mediator is necessarily neutral, and cannot take sides. The mediator is sometimes referred to as neutral third party.

The mediator is not a judge. He/she cannot give legal advice. The mediator’s goal is not to have a winner and a loser, but to have two winners. In a meeting where confidentiality is the rule, the mediator helps the disputants reach an equitable settlement agreement.

Who is Who, and What is What?

Attorney: Legal counsel, licensed by the state, who represents the Plaintiff or Defendant.

Caucus: A private meeting of any two or more people involved in a mediation.

Cause: Another name for a court case, a cause of action. A cause is “styled” with the name of the Plaintiff and Defendant: Somebody vs Somebody-else.

Defendant: The person against whom the suit is brought.

Et al: Short for “and others.”

Initiator: Person who brings a complaint against another outside a court of law that calls for mediation. The Initiator is equivalent to the Plaintiff.

Judge: The final decider.

Lawyer: Another name for an attorney.

Litigation: Action in court regarding a lawsuit. A lawyer who practices law in a courtroom is called a litigator.

Party: A Plaintiff, Initiator, Defendant, or Respondent. They are all parties to the conflict. A corporation or other entity can initiate a lawsuit or action that requires mediation. In that case the corporation is a party.

Plaintiff: The person who brings a lawsuit against someone else.

Pro se: The Plaintiff or Defendant in a lawsuit who represents himself without the aid of an attorney.

Respondent: Person against whom the complaint is made. He/she is equivalent of a Defendant.

Mediation in the Court System

Courts use mediators to prevent overload in the court systems and to save everyone concerned time and money. In Dallas civil courts, for example, 90 per cent or more of lawsuits filed are settled by the parties or their attorneys in negotiation or in mediation and never go to trial. The courts are still busy. If it were not for mediation, more courts, judges, and courthouses would be necessary. Mediators help settle all kinds of civil cases and family cases such as divorce, property settlement, and child custody. Family court judges send cases to mediation where child custody, property settlement, and modification of previous court orders are settled.

Usually attorneys try to settle a lawsuit before trial. If they cannot reach a settlement, then the case goes to mediation. The professional mediator is expected to do what the parties and attorneys could not do. He/she is a specialist in getting people together and usually facilitates a settlement. Those few not settled then go to trial.

An unscientific survey found that 70 per cent of people were satisfied with their settlement in mediation while 90 per cent who went to trial were not satisfied with the decision of the judge or jury in civil cases.

Mediation saves time and money for the Plaintiff, Defendant, and the Court. Mediators are not nearly as expensive as going to trial. When you settle in mediation, you know exactly where you stand. If you go to trial, you never know exactly how it will turn out. Juries are like voters and footballs; you never know which way they=ll bounce. Judges are human, and no two are exactly alike.

A great benefit of mediation is that both sides have an opportunity to have their say, unhampered by courtroom procedure. No one will say, AJust answer the question, yes or no,@ as might happen in a courtroom. Often when a person explains all the circumstances of a dispute, the other side begins to understand and it is a step toward a settlement agreement.

In cases where both parties have lawyers, attorneys for both parties and the mediator agree on a date for mediation. In some cases one side has an attorney and the other doesn=t. A Plaintiff or Defendant representing himself is called pro se. He/she too must agree on the time and date of the mediation.

Typical Sequence of Events:

The Plaintiff files a lawsuit and sends a copy of the original petition to the Defendant so he will know what he is accused of and what the Plaintiff is asking the court to do. The Defendant answers the accusations in the Plaintiff=s petition. The judge sets a trial date and appoints a mediator. The mediator contacts both the Plaintiff and the Defendant and arranges a date and time for the mediation. If they have lawyers, all communication is directed to the lawyers. If the parties can=t agree on a mediation date, the mediator sets the date.

Each party must attend the mediation with full authority to settle and pay an equal share of the mediator=s fee. When the mediation is scheduled, the mediator usually asks for a small scheduling fee. Then when the parties appear for the mediation, they pay the balance of the mediation fee. If the case is settled prior to mediation, the case is dropped, somebody dies, or anything else happens that prevents the mediation from taking place, the scheduling fee becomes an administration fee to pay the mediator for the time he has spent on the case.

At the mediation, usually held in the mediator=s office or other central location, the Plaintiff and his attorney sit on one side of the table. The Defendant and his attorney sit on the other side. The mediator sits at the end. The mediator suggests that the proceedings be informal, and that first names be used. He explains that everything in the mediation is confidential, that nothing that is discovered in the mediation can be used in court later, and the mediator cannot be called to testify. No stenographic record or recording is allowed. Both parties sign a confidentiality agreement. Everyone is free to speak their mind without fear of future recrimination.

Each side has uninterrupted time to present his/her case. The Plaintiff begins by stating his position and demands. Then the Defendant states his position and/or demands. The mediator reiterates these positions to make sure he understands what each party is saying, and that each party understands what the other is saying.

Then both parties are asked to suggest possible terms of settlement. These are negotiated back and forth until a settlement agreement is reached. When both parties agree on the settlement, one of the parties, or his attorney, writes up the agreement, and everyone signs it.Often one party wants to confer with the mediator in private. They go into another room for a caucus. Other caucuses might be between a party and his lawyer in private. The lawyers might want to caucus in private without the parties and mediator. Any combination of parties, attorneys, and/or mediator might caucus.

Sometimes when there are bad feelings between the Plaintiff and Defendant, the mediator will separate them right after the preliminary meeting, putting each party in a different room. Then the mediator confers privately with each party and conveys its offer of settlement to the other.

If a settlement is not reached because of a lack of information or documents, the mediator may recess the mediation and reconvene at a later time.

If there is an impasse, and no settlement is reached, the mediator may stay in contact with the parties and try to get them to settle right up to the trial date. I have settled cases weeks or months after the parties gave up in a mediation session.

Getting sued, being the Defendant, is bad news. It costs money, time and trouble. Suing someone, being the Plaintiff, costs money, time and trouble. There is no way to avoid it. Usually the best money either Plaintiff or Defendant can spend is for a good lawyer.

Other than in small claims court (Justice of the Peace Court), no one should file a lawsuit without a lawyer any more than he/she would go to surgery without a doctor.

Your lawyer is your champion. He/she will fight for you. But you have to give your lawyer all the needed information. Don’t expect your lawyer to always know what to ask for. It’s better to offer too much information than not enough. It’s better to bring too many documents to a mediation session than not enough. To say, “Oh the bank has that on record,” is not nearly as convincing as handing someone a cancelled check with their signature on it.

Often a party will make a statement about an invoice or contract, but can’t produce the document. If you hope to have all your ducks in a row, give your attorney all the documents he might possibly need or bring them to the mediation session yourself. It is not unusual for an attorney to bring in a box of documents on a wheeled cart.

Many times one party will make a statement of fact. The other party says, “Show me.” If the allegation can be backed up with a document, you’re on your way to settling the dispute.

One of the impediments to settlement in mediation is unrealistic high expectations. A Plaintiff, emotionally involved, spills out his story to his attorney. It’s a chinch to be a winter, the Plaintiff convinces the lawyer. The lawyer, having heard only one side of the story, tells the Plaintiff to expect a big settlement or court judgment.

The Plaintiff goes into mediation all pumped up and expecting great things. During the mediation things are brought hp he hadn’t realized earlier. The other guy does have a leg to stand on. The Plaintiff’s lawyer recognizes that the case is not locked up after all and tries to convince his client to settle for less.

If you’re that Plaintiff, you must fight your way through emotion and a wounded sense of justice, and force yourself to face reality. Your lawyer hasn’t turned on you; it’s just easier for him to change gears when the road ahead suddenly goes uphill, because he has had more experience.

I have mediated many cases in which the principle of the thing turned into a killer. “It’s not the money; it’s the principle of the thing,” sounds very honorable, but can be very costly. For example: You’ve been sued. The Plaintiff is a jerk. His case is really full of holes. You go to mediation and negotiate with him. Finally, he says he will settle for $1,000. You know he’s wrong. If you pay the money, justice will not be served, so you decide to fight because of the principle of the thing. You spend $10,000 fighting him, and finally prevail in court, but the court doesn’t award your attorney fees. It’s contrary to the American ideal of fair play, but you’d be $9,000 better off to have paid the $1,000 nuisance money. Facing reality isn’t always the most ideal, but it usually is the cheapest.

In some cases a mindset proved to stop a settlement. A young woman was being sued for a large debt. She appeared pro se. The Plaintiff attorney made a good offer of settlement with long terms. She couldn’t make a decision. Her mind was in neutral. Finally, after a half day of negotiations, with her mouth zipped shut most of the time, I declared an impasse and we all went home. I gave her a couple of days to think about it and phoned her, urging her to consider the settlement offer. She wouldn’t make a decision. I suggested she hire a lawyer just for consultation. It wouldn’t be too expensive just to get him to recommend a decision for her own best interest. She wouldn’t make that decision either. I called her several times over a period of several weeks as the trial date approached. She finally quit answering the phone, apparently recognizing my number on caller ID. Later I checked with the court to see how her case came out. She lost big. Not long afterward, unable to continue making her house payments, she lost her home.

Just plain emotional attachment to a cause can so clutter up a person’s mind that he can’t face reality. Your absolute, ironclad conviction won’t transfer to a judge or jury if the conviction is based on emotion.

In a contract dispute, a wife told me with trembling chin what a great man her husband was, how he loved people, and how he was kind to people. As far as the opposing party was concerned, none of that would change the facts about whether he did or did not sign a contract.

I don’t mean to say, “Leave your emotions at home.” Real, heartfelt emotions often pave the way for an equitable settlement. Just don’t depend on your emotions to serve in place of hard facts.

I have been pleasantly surprised to see jaded attorneys for debt collectors, who have heard it all, go out of their way to help a debtor who has been injured and unable to work.

A typical exchange of unprepared people is: “You say you paid the bill. Do you have a receipt or cancelled check?”

Another one is: “Are you sure my client made those charges? Do you have some documentation?”

The other side would be much more convinced if you could show them the cancelled checks or charge slips.

In another case a pro se Defendant said, “I don’t know why I’m here. I got the notice from the mediator, so here I am, but I don’t know what it’s about.” He was too busy, I suppose, to look at his mail, or to read the notice handed to him by a process server that said, “You have been sued.” The poor guy was at a disadvantage because the other side did know what was going on and came prepared.

It is advisable to have a lawyer with you at mediation. If you don’t have a lawyer, take someone with you, a business associate who knows something about the case, your wife, husband, or friend.

No matter how many millions of times it has been proved wrong, some people still believe, “Just forget about it and it will go away.” It doesn’t go away. It just gets bigger, meaner, stickier, and more costly. If you are notified that you are to appear at a mediation, get your documents, and your thoughts together, and show up on time. If a party fails to appear, I wait 30 minutes. If they don’t show up or call, I declare them a “No-Show” and notify the judge.

If you fail to appear at a court-ordered mediation, the court’s order says you will be subject to sanctions. Judges don’t like to have their orders disobeyed.

Like doctors, lawyers specialize. They’ve all been to law school and passed the bar, but then they branch off into specialties. You wouldn’t want a doctor cutting on your heart if his surgical experience hadn’t gone beyond ingrown toenails. Usually a lawyer will tell you up front what he is not qualified to do.

You might go to a civil litigator for a divorce involving children. Probably he’d say, “I don’t do family.”

The Internet is full of links to lawyers, usually based on their area of specialty. Just for fun I put on the Google search, “Lawyer Dallas Texas Divorce.” Google showed 283,000 listings. I can’t imagine there are that many lawyers in Dallas who specialize in family law, but in any case there are plenty to choose from. I tried “Lawyer Dallas Real Estate” on the MSN Search. On the first page was a website full of Dallas lawyers who specialize in real estate.

If you are one of the few literate and sane people in America that don’t have computers and access to the Internet, there is always the Yellow Pages. There, on that low-tech search engine, you can find lawyers listed according to specialty. The phone book also has numbers for the State Bar and local Bar Associations. Call them and they will be glad to give you names of lawyers who specialize in what you need.

If you prefer for your fingers to do the walking on a computer keyboard, you can go to YellowPages.com or WhitePages.com and search for lawyers.

The Internet is also a good way to find mediators. You will find them listed in several organizations. Association for Conflict Resolution (ACR), is a national organization of mediators, www.acresolution.org. ACR also has regional chapters. The Texas Association of Mediators (TAM), www.txmediator.org. The Texas Mediator Credentialing Association, www.txmca.org, has a list of mediators who have met the organization’s standards of experience, ethics, and training.