Newsletter

President’s Message

Wanted or Needed
By Jerry Cosby, ACR Dallas President

            It has been my experience that mediators are often not valued by the lawyers representing the plaintiffs and defendants. We seem to be considered as part of the cost package and not as part of the solution.
As a result of the challenging economy, I have seen an increase in cancellations of late through pre-settlements and dismissals. Also, I have seen several cases moved to DMS or threats to move to DMS unless the mediator reduced his fee to match their discounted rates.

Why would this be so? Lawyers in their role as champions, advocates, and combatants, have the mind - set of winning – some of them perhaps, winning at all cost. They see their job as to bring the most favorable results to their client, not necessarily concerned with what might be considered as fair. The trial environment is one where one side usually wins and the other side loses. The rules of procedure and the rules of law make it difficult for a pro se to prevail in trial. So the plaintiff‘s lawyer sees this advantage and naturally wants the decisions related to the case made in trial or by summary judgment. The mediation and an experienced mediator may be seen as counterproductive to this process.

This is especially true in cases like credit card collection cases where the defendant is often without an attorney or divorce cases where only one side is represented.
What can the mediator do in responding to this difficulty?
1. Be forceful in the setting of a mediation date. In your letter asking for    mediation dates, state that if you have no response within a specified time you will set the date without further input.

2. Keep a Communication Log. Note the date (and time) of each contact,   who you talked to, what was said, and messages you left.

3. The day before a mediation, send a fax Reminder to all parties. Keep all             fax confirmations in your file with the letter sent. 

4. When someone states that they “will get back to you” remind them that you are under the court’s order to mediate the case by, and name the date, and that    you must and will set the date in a timely manner.

5. Make most of your communications in writing (letters, fax’s and             emails) so that you have a record of them. Utilize certified mail when appropriate.

6. When you conduct a mediation, make it highly professional, settle the    case, and be thoughtful of everyone’s time. Earn the respect of your attorney    colleagues.
We are needed by the pro se parties, to insure fair play, by the courts, to manage their case load, and by the attorneys to maintain a sense of  “surgical objectivity. ” We must keep our valuable service foremost in our minds and sometimes remind others.

Duane says it’s broken; Cris says it’s not.

Committee Studying DMS and Alternatives 

By Joe B. Hewitt

            “DMS is broken and running amok,” Dallas County Alternative Dispute Resolution (ADR) Coordinator Duane Gallup told a committee charged by county commissioners to come up with a fix or an alternative.
Gallup had told commissioners that Dispute Mediation Service (DMS), that got $350,000 from the county this year, cost the county around $750 for each mediation conducted. He had proposed an alternative county-run department that would hire professional mediators who would collect $200 per party for mediations. DMS charges $100 per party. That would save the county $80,000 a year, Gallup said.

“I don’t want a coup, I just want it fixed,” Gallup said.

County commissioners ordered a committee to be formed that would explore solutions and make recommendations.

In addition to Gallup’s original proposal, he said the committee is considering three others:

1. Restructuring the DMS Board of Directors.
Presently there are 17 members of the self-perpetuating board. Gallup said the statute allows the commissioners court to name a majority of board members from the county bar association. Cris Gilbert, DMS executive director, said half the present members of the board are also member of the county bar, although they were not appointed by the commissioners court.

2. Short term contract with DMS while seeking alternative contracts.
DMS contracts now run annually. Gilbert said she is asking that the commissioners increase DMS’s payment from the county until it is on a par with what other counties’ ADR services receive, which is 70 to 100 per cent of the income derived from the ADR fee of $15 per civil case filed. At present, the $350,000 DMS receives from the county annually is only 30 per cent of that income, she said.

3. Divide the ADR funds.
Gallup said four of the five judges on the committee favored earmarking the funds received for civil and family cases to fund their own mediation program. An ongoing discussion involves whether, under this plan, mediators would be paid or volunteers.
When the committee finishes its work it will make a recommendation to the commissioners who will then make the final decision whether to extend DMS’s contract and/or make changes.

Gilbert defended DMS’s 28-year record of being a service-provider for Dallas County. “We are still pursuing our mission and fulfilling our strategic plan to increase quality and implement new technology.”  She added, “We are here to fulfill Chapter 152 (state statutes involving ADR), which is more than court cases.” Gilbert said DMS’s work benefits the community and all mediators.

Drafting the Settlement Document

(Part Two in a Series)*

by Gene Roberts, Esq.
Member of the State Bar of Texas and President-Elect of Dallas-ACR

            In our last article, we discussed whether an agreement reached at mediation should be titled a "Rule 11 Agreement" or a "Mediated Settlement Agreement."  Today's question is:  What are the elements for an enforceable agreement?

Agreements reached at the conclusion of a mediation are considered contracts and are interpreted under applicable state law.  In Texas, oral and written contracts are enforceable by a court, but I believe the better practice for a mediator is to make sure that the agreement reached by the parties is in writing and signed by the parties before they leave your office.

As a general rule in Texas, there are four elements to prove an enforceable contract: (1) an offer and acceptance; (2) mutual assent; (3) execution and delivery of the contract; and (4) consideration supporting the contract. 

The Offer and Acceptance

            The first element is whether there is an offer.  This means did the offeror intend to make an offer, in clear and definite terms that was communicated to the offeree. Once the offer is made, the offeree may accept or reject the offer.  To establish acceptance, one needs to examine if the acceptance was made in a timely fashion (for example, if the offeror said "I'll dismiss the lawsuit if you pay me $10,000.00 by November 1, 2009," and no payment is made by November 1, was the offer accepted?  The answer is no.)  The acceptance must be made to the offeror.   In some instances, the offer must be accepted in a particular manner, such as in writing and delivered to a particular person at a particular address.  Please note that there is a lot of case law defining an offer and acceptance and the means of accepting (or rejecting) an offer.  In a mediation context, the entire session involving negotiations is one of offers, rejections, counteroffers, and (hopefully) an acceptance of the last offer.  This is where the issue of authority of a party's representative at the mediation is so important.  Make sure that party representatives have the requisite authority to bind their respective parties to the final agreement.

Mutual Assent

            This element means that the parties must have a meeting of the minds of the essential terms of the contract. I have often seen settlement agreements where the essential terms are scratched out in bullet-points, with other terms to be worked out later by the parties and their attorneys.  For the settlement agreement to be enforceable, the parties must be in agreement about the contract's essential terms.  Having the agreement in writing and signed by the parties is critical because such a writing is some evidence of mutual assent.

Execution and Delivery

            Execution means that the parties have attached their signatures to the contract.  Some contracts require delivery to the other party to be effective, others do not. 

Consideration Supporting the Contract

            Like the first element of an offer and acceptance, significant judicial resources have been used in examining whether contracts have requisite consideration.  A contract without consideration is not enforceable.
What, then, is consideration?  Consideration is a bargained-for exchange of promises.  It can be considered as a benefit to the promisor or a detriment to the promisee.  The payment of money is consideration because it provides a benefit to the promisor and a detriment to the promisee.   A release of legal claims also constitutes consideration.  We often see this in commercial disputes, where one side agrees to pay some amount of money and in return that side will receive a dismissal of the lawsuit that has been filed against it.  Courts will presume that the consideration that is stated in the agreement is adequate, but that presumption can be rebutted.  The parties to an agreement can have a single consideration in return for multiple promises, for example "I will pay you $500.00 and in return you agree to dismiss your lawsuit with prejudice, you release me from any other claims you may have, you agree to return the schematics to the widget to me, and you will not make any disparaging remarks about me."

Foreclosure Law Expert Speaks

            Barry Johnson, Esq., spoke to the May 26 meeting of ACR Dallas about the legal foundations and current developments in Texas foreclosure law.  Mr. Johnson is with the law firm of SettlePou, where he focuses on the area of mortgage banking regulation, lending, and litigation.  He is one of the preeminent authorities on foreclosure law and mortgage banking in the State of Texas, having published articles and trained attorneys on the subject.  A graduate of Rhodes College and Southern Methodist University’s law school, Mr. Johnson served as vice-president and general counsel for a large, nationwide mortgage lender before entering private legal practice. 

Nominating Committee Working

            The ACR Dallas Nominating Committee comprises Martha Johnson, Chairperson, Fred Lewis and Kay Elliott.

Members who are interested in serving in any of the offices, or who would like to suggest others to be nominated are invited to contact members of the Nominating Committee. Election of officers will be held October 27, 2009. The newly elected will take office after that meeting. Gene Roberts, who was elected President-Elect last October, will automatically become president.

Civil Court Judges Panel is September Program

Civil Court Judges Panel will be the September 29 ACR Dallas program. Mediators will have an opportunity to meet the judges and ask questions.
The Judges Panel has been an annual event and best-attended ACR meeting of the year. Names of judges on the panel have yet to be announced. ACR Dallas meetings are held at Center for Community Cooperation, 2900 Live Oak, Dallas, Texas.

Election of Officers October 27

The annual election of officers will be held at the October 27, 2009, meeting. Gene Roberts, who was elected President-Elect last October, will assume the office of president. A new President-Elect will be elected, who will assume office after the October, 2010, meeting.
The Nominating Committee will present a slate of officers. Nominations may also be made from the floor.
A marketing panel of mediators will comprise the program for the meeting. Seasoned, experienced mediators will share information on how to get mediation business.
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Tenacity Pays

By Joe Hewitt

January 6, 2009, I mediated a complicated contract dispute case. The Defendant was out of state, started out pro se then hired a lawyer who represented him in the mediation. After we failed to settle in mediation, the Defendant went pro se again, and for the next six months I dealt directly with him.

Two young tenacious attorneys, Jason Lemons and Steven Hallbauer, representing the Plaintiff, continued negotiating. Finally, after nearly a ream of correspondence and dozens of phone calls, on June 19, 2009, we reached a settlement.

Arbitration Forums Quit Consumer Dispute Cases

            After being hit with a wave of lawsuits, the National Arbitration Forum (NAF) has stopped arbitrating consumer debt collection disputes, according to a Wall Street Journal report in The Dallas Morning News July 23, 2009.

A lawsuit by the Minnesota attorney general’s office said the NAF failed to disclose financial ties to the debt collection industry.  The American Arbitration Association also stopped taking debt-collection cases “until some standards or safeguards are established,” the article said.

Many credit card and cell phone companies require customers to sign a contract agreeing to binding arbitration rather than going to court in case of a dispute.

            You’ve heard the old story about the musician who stopped a policeman in New York City and asked “How do I get to Carnegie Hall?” and the policeman answered, “Practice, practice, practice.” The same formula can be used for, “How do I get to a successful mediation practice?” The answer: “Marketing, marketing, marketing.”

If your office is in a high traffic area frequented by judges, lawyers, chief executive officers and human resources directors, you can hang out a shingle with just your name and “Mediator.” That’s marketing. You can run ads in publications read by your prospective clients. You can personally visit prospects. You can join and participate in organizations comprised of your prospects. These are all, old, tried and true ways of marketing. They still work.

However, there is a new generation of people who pay more attention to the Internet than the old hard copy advertising. They dislike spam intensely, but information they search for on the Internet they usually trust.

Like big banks build big buildings to show stability and make a good impression, mediators need a website to show the Internet generation they exist. If your website is no more than a one-page brochure it’s better than nothing. At least you have a presence on the Internet; you are an entity.

Over several years I have added to my website until it is huge. No one would want read all of it, but the information is there and easy to find if anyone wants it. I started the site using Microsoft’s Front Page program, which was easy to use but is now dead. I switched to Adobe Dreamweaver. It is easy to use if you are super-savy, which I am not. However, the tutorials that come with the program give the basics, enough to get the site on line. Then friends like Glenn Currier helped with advice. The easy way is to go to Google, Yahoo, or Microsoft, and use their free website builders.
When someone is looking for a mediator, where does he look, and how does he find your website? Try Google: “Mediator Dallas.” Who will wade through Google’s some 259,000 listings? Most will look no further than the first page.
To get on the search engine’s first page, you have to subscribe to an advertising plan. Google’s is www.adwords.google.com for information. You pay about a cent a hit and can set your daily budget for whatever limit you choose. Yahoo has a similar setup, but it is much more expensive per hit. Yahoo has a less expensive plan called “Search Submit Basic” for $49 a year. You’ll find it on the Yahoo website. MSN offers similar plans. Go to the bottom of the MSN page and click on “Advertise.”
People also use the Internet phone books more than the print versions. I use the AT&T Yellow Pages, both print and Internet, and have had measurable results from both. Two months ago I subscribed to The City of Dallas website for a year for almost $500 and so far have had no measurable results. I’m reminded of a vow I made soon after I started mediating. I had bought every kind of advertising and promotion scheme that came along and soon saw that I could spend more than I could make. I decided to be more selective.

Search engines are supposed to find key words, so it is important that the key words be in your website. Imagine what key words people would use searching the Internet and be sure those words are in your website. It is also important to update the website frequently. A static site won’t be accessed as often as a busy one. That includes hits it receives. If no one ever hits your website, it goes down a notch in accessibility. When you look for “Mediators Dallas” or Mediator Dallas,” one of the first names that appears is Melanie Grimes, one of the most successful mediators in Dallas. Melanie said she does not pay for that prominent position, rather it is because her website gets so many hits.

The old saying, “Success breeds success,” is true. The more hits you get the better position you get the more hits you get, etc.
Links also matter. The more external sites that are linked to yours the better. That’s why I often offer, “I’ll link my site to yours, if you’ll link to mine.”
I still have one foot back in the old days. I use direct mail. I have sent out many mailings to judges, attorneys, executives, human resources managers, elder care facilities, and others with no measurable results. Most direct mail advertising goes unread into the trash. However, a good direct mail campaign should net two per cent results. It’s difficult to measure results when you send a letter to an attorney urging him to name you mediator in some of his cases, or when you ask a CEO to “Call when I can help.” Direct mail is probably my least cost effective way of advertising, but I continue using it because it causes the recipients to recognize my name. It’s easier to do business with someone you have heard of or know about.
Most of the time the only part of me the prospective client sees is my business card. Therefore, I put everything I can on the card including my picture, and I print both sides. Often I will meet a party arriving for a mediation session who says, “I recognize you from your picture.” Mediators should never leave home without their business cards. Even if I’m working outside in my yard hot and sweaty, I have a few business cards in my pocket zipped up in a little plastic bag. When I lay out my material on the conference table for a mediation, I lay a business card for each party expected to attend.

When I’m making sales calls or visiting the courthouse I have a business card in a plastic card holder on a string around my neck or pinned to a coat lapel. My picture and the larger letters, Joe B. Hewitt, Mediator, are most prominent. I wear the name tag also when I go to any public function. On one occasion I sat down in an Ellis County Courtroom to wait for the judge to take a break. To my surprise, Judge Al Scoggins said to the attorneys, “I’m going to send this case to mediation. Joe Hewitt is here. I’m going to appoint him mediator.”