Over the last 40 years, the mediation process in Texas has become more formalized and codified in the Texas Alternative Dispute Resolution Procedures Act. In virtually every civil lawsuit the court will order the parties to mediate the case prior to the trial date. In mediating a case the parties are not obligated to arrive at a settlement, only that they make a good faith effort to try to find an agreement.
The mediation process involves getting both parties together with a “neutral” party between them who is called the “mediator”. The mediator is a combination of messenger, negotiator, and counselor, who tries to bring the parties together to arrive at a settlement of a dispute.
Below is the description of mediation in a civil case that involves money damages (examples; breach of contract, personal injury, fraud).
Mediation generally occurs after discovery has been substantially completed. Typically, each side has produced documents (Requests for Production), obtained answers to written questions (Interrogatories), and taken the testimony of parties, witnesses, and experts (Depositions). Each party is aware of the opponent’s evidence and arguments.
Mediation usually starts with a meeting where all parties are in the same room. Each side presents what they want with a brief summary of the facts and law supporting their position. In a case for money damages, Plaintiff will present a demand to settle the case. The Defendants might make a counteroffer, or if they feel their case is strong, refuse to make an offer. At this point the parties do not negotiate face to face, rather each side retires to a separate room. This is where the art of the mediator comes into play.
For the next few hours, the mediator will shuttle between the rooms where each party has retired to. The mediator will try to convince the parties that it is in their best interest to settle the case and to get the parties to agree on a money amount of a settlement. For example, in a personal injury automobile case where the facts indicate the defendant was at fault, the only issue is the amount of damages a jury might award. Assume the plaintiff wants $100,000.00 and the defendant has offered $10,000. The mediator might tell the plaintiff that the case has value, but it appears the evidence is not sufficient to support a jury verdict of $100,000. Therefore, their offer should come down to a more realistic number. The same mediator might then go to the defendant’s room and tell them that the plaintiff does have evidence of damages that are clearly more than $10,000, and therefore they should come up on their offer. The mediator goes back and forth a number of times and works to narrow the gap. If there is a deadlock, the mediator might tell the plaintiff that the sum offered is less than what was expected, but that it is money in the bank, and no one can say what a jury will do. That same mediator will then go to the defendant’s room and talk up the strength of the plaintiff’s case to show it is worth more than they are offering, and if they are stubborn, they might get slammed by a jury. A skilled mediator, by various arguments that might include subterfuge, will do everything possible to get the parties to a point where both throw in the towel and are too weary to continue the fight. Victory for the mediator is that an agreement has been reached, not who wins or loses.
In my next installment, I will discuss the qualifications of the mediator, how a mediator is chosen, and how the mediator gets paid. If you have questions about the mediation process, contact the Law Office of Elliott Klein, PLLC.