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What is Mediation and is it a good choice to resolve litigation? An Experienced Austin Mediation Attorney Weighs In.

Is Mediation the same thing as going before a judge?

As an Austin Mediation Attorney, I am astonished how many clients get this wrong – about 90%!

Most clients are unaware of what the mediation process entails and its ability to get from litigation dispute A to B fast and cost effectively.  Here are a few pointers gleaned from over 37 years of practice as an Austin Mediation attorney.

1. Mediation is not binding.

What this means is that mediation is not a formal trial or proceeding like being in a courtroom.  It is a private process where a neutral party, typically a senior lawyer or former judge, serves in the role of trying to figure out a business solution to a particular dispute between the parties.  Mediators are trained to bring intractable parties closer together with an eye on deescalating the strong emotions between the respective clients and finding an acceptable compromise somewhere in the middle.

2. Do you have to meet with your adversary at the mediation?

Absolutely not!  Many of my clients find the possibility of meeting their opponent revolting, and I say that without exaggeration.  The mediator will keep the parties apart usually in different rooms.  They never have to see each other, and all communications back and forth go between the attorneys and mediator.

3. How does the mediator get the parties to agree?

Well, it’s a bit like making “litigation sausage” and not always pleasant.  The job of the mediator is to get the parties to back off from their initial positions.  In so doing, the mediator will often attempt to exploit potential weaknesses in the respective cases as a mechanism to lower the starting settlement offers on both sides.  This can be alarming to clients as it seems to undermine confidence in the strength of their case.  However, keep in mind that the mediator is working his or her magic on both sides of the aisle!

4. Who presents the starting offer?

That’s a strategy decision to make with your lawyer.  An old sales adage is that whoever speaks first loses.  That is definitely not the case in mediation, but the tactical moves need to be well thought out.  The advantage to making the starting offer is that your attorney will set the initial dollar parameters from which your opponent is forced to respond.  Assuming the initial offer is not out of the ballpark, it can be a smart move as it will motivate the other side to seriously consider the opening offer and respond in a logical manner.  Of course, if the initial offer is incomprehensibly huge, that gets everyone off to a horrible start and may very well spell disaster for the mediation process as there is no way to bridge the gap.  Bottom line is that the proffer of the first offer is a critical decision to be made with the advice of counsel and very well thought through.

5. How long can a mediation last?

Having represented clients as an Austin Mediation attorney for decades, the answer is across the board.  In my experience, the shortest mediation was under an hour and the record breaker longest one was almost 20 hours.  The marathon session is memorable for me as it was conducted during a particularly sizzling summer in the Washington, D.C. area.  The mediation got off to a really bad start, but the mediator refused to give up and forced us to stay there.  Finally – and this is a true story – he shut off the air conditioning in the building shortly before midnight and blamed it on an electrical problem.  We were all sweating and exceedingly uncomfortable, but the mediator feigned ignorance and urged us on.  The steam bath conditions worked, and a rapid settlement worked out to avoid our collective demise.

6. If the mediation fails, are the records of the procedure discoverable in the litigation?

Absolutely not!  What this means is that any of the records of the failed mediation cannot be used or even referred to in court proceedings.  It is entirely inadmissible as evidence and would be thrown out by any judge!  The reason for this is to encourage the parties to speak freely without cause for concern that any communications could later be weaponized!

7. How do you select a mediator?

From a list of potentials provided by your attorneys.  Both parties will have an opportunity to review the background and experience of the candidates and make an informed decision.  The lawyers will work together on both sides to agree as to the selection of the ultimate candidate.

8. What characteristics should you look for in selecting a mediator?

That is a very interesting and important question!  I always recommend a mediator with decades of experience as they are more seasoned and produce the best results.  Be careful to avoid mediators who have backgrounds mostly representing the legal interests of the other side.  As an example, if you are mediating a dispute dealing with bad home construction and on the homeowner side, avoid candidates who have principally represented builders. Another important consideration is to focus on the personality and style of the mediator and what approach would work best in your case.  Some mediators are exceedingly laid back and others take a proactive approach.  My preference is for the latter as a hardline is often necessary to break down intractable positions and get the parties closer to an agreement.

9. If the mediation is successful, what happens next?

The mediator types up a fast agreement which outlines the terms, submits to the attorneys for review/approval, and then on to the clients for execution.  The parties never leave the venue without an enforceable agreement, assuming – of course- that the mediation was successful!

The mediation process is an excellent way to forge a possible resolution of difficult disputes and resolve conflict without the costs and emotion of litigation.  Keep in mind that mediation is required by all Texas courts before the matter can be heard by a judge or jury.

Mr. Moster has represented clients – large and small – in mediations for decades.  If you have any questions about how mediation works or its benefits in a particular dispute, just give us a call for a complimentary consultation.


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