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Mediation
South Texas College of Law Houston
Wettman, Bruce Wayne

MEDIATION TX—EST 1987
o        conflict—usually 4 choices—read carefully—don’t read too fast—answers look the same
a.                               trad means of resolving conflict: 1) fight (violence, throwing rocks), force or coercion 2) (alternative to force) avoidance (run away/ignore) (OTHER Traditional responses to conflict) 3) Accommodation 4) Compromise/ Splitting Down the Middle 5) Voluntary Relinquish Responsibility for the Conflict to THP outside the dispute 6)Gamble or chance method of det outcome (toss coin) 7) Counseling
b.                               hidden agenda—underlying interest (ex: apology)→ Even when overt conduct, underlying conflict also exists. This is the implicit, often hidden or denied, conflict. These hidden aspects may truly fuel the conflict.→interpersonal conflict—affects intrapersonal disputes
o        Diff forms of adr—Adjudicative, Evaluative, Mediative
o        ADJUDICATIVE
o        1) Arbitration→adr act—clearly states NON binding process unless design to be binding—exp if draftin an arb agmt—must be abundantly clear that it is binding or not—Arbitrations are conducted by a sole arbitrator or a panel of three which render a decision (i.e. award). Arbitration procedures are more formal; Attorneys make presentations and can submit evidence to the arbitrator; live witnesses can testify and may submit post-hearing briefs. Awards are generally binding when previously contracted for arbitration
(a) High-Low—arb chooses award as long as between boundaries
(1) Prior to the arbitration hearing, the parties establish a bounded range for the award. If the arbitrator’s award falls within that range, then the arbitrator’s award becomes binding on the parties; if the arbitrator’s award is outside the range, then the award is adjusted to the appropriate high or low boundary
(2) Arbitrator does not know amount agreed upon.
·         Arbitrator determines award within high/low boundary. Award b/w HL= award, over= high, under=low. Ex. If high-low is10 & 20à if arbitrator says 15= 15, 17=17, if 25=20, if 5=10.
(b) Final Offer Arbitration / Baseball Arbitration—party chooses award
(1) In this process, each party submits a proposed monetary award to the arbitrator, who chooses one of the proposed awards based on the merits of the presented case. The arbitrator does not modify the proposed award of the prevailing party→The arbitrator chooses one or the other, there is no in between. This makes the high low more reasonable.. This technique limits the arbitrator’s discretion and encourages parties to propose realistic/reasonable awards.
(2) Arbitrator knows what final offers are.
(c) Night Baseball Arbitration—party chooses award, but arb does not know choices.
(1) As with baseball arbitration, each party submits a proposed monetary award to the arbitrator. However, the arbitrator does not know the contents of the proposed awards. At the close of the hearing, the arbitrator issues a non-binding award, and the proposed award that is closest to the arbitrator’s award becomes binding on the parties (award to the party whose proposal is closest to that of the arbitrator).
(2) Arbitrator does not know amounts agreed upon.
·         **Doesn’t’ have to be any of these—can be whatever the Arbitrator decides
2) Private Judging → Hire a retired or former judge to hear the case and render a decision.→ The judge, also termed a referee, can either decide all issues or just a portion. The private judge has essentially the same powers and enters judgment as a judgment of the court, so the right to appeal is same as if the judgment was rendered by the referring court
o        3) Fact finding
o        If using non binding = using as eval tool to get stubborn client to see downside if lose
o        If using binding arb = final decisn—have to make decision then for procedure of binding arb—bench trial—going by rules or informal
o        EVALUATIVE—peer evaluation
§         1) Lawyer evaluation—peer evaluation—The Moderated Settlement Conference (Michigan Mediation) 2) Summary Jury Trial—Lay evaluation   3) Judicial Evaluation→Retired judge points out to the lawyers and litigants the strengths and weaknesses of the case. Litigants can accept or reject the evaluation. In some cases, the judge will assume a role of mediator or assist in the actual negotiation in order to reach a final settlement   4) Specialist or expert evaluation
o        FACILITATIVE/MEDIATIVE—negotiation—1) mediation 2) consensus building 3) Conciliation
o        Can a ct order binding arb? No—only non-binding and mediation→& if med successful→ MSA turns into J = only vehicle to get from med to settlement—so how if ct cant order it on its own? Can it be substituted for other adr procedures? Arbitration clause—attorneys will take MSA outline and turn into J to make enforceable—attys will differ over language—TC won’t decide bc not in on mediation→so attys need an MSA for arbitration if cannot agree and mediator will be arbitrator of language disputes—no new issues—just lang in written agreement
o        Can binding arb be required by empoyer as part of empmt—Yes??
o        HYBRID/COMBINED PROCESSES
o        Med-Arb: Med-Arb combines mediation and arbitration in Texas. The parties can agree ahead of time that the mediator will become the arbitrator for the small things that were not settled in mediation. Ex. If 3 issues, 2 settled, so decide to let mediator make decision (i.e. he becomes arbitrator), or let someone else arbitrate. Mediation- parties make decision; Arbitration- 3rd party make. Most common combined process.
o        Mini-Trial—used in large corp. litigation and is a hybrid of negotiation, mediation, and case evaluation. A higher up of the corp. must attend the process. The attorneys, corporate execs meet with an expert, third party neutral advisor, and all sides present their “best case.” Direct negotiation w/o attorney or neutral follows. Then expert advisor provides non-binding opinion or evaluation regarding the merits of the case. Then if no resolution, negotiate again. Then if no resolution, neutral may act as a mediator.
Exam Question: What does “out-house” mean? Advisor outside corporation
o        Jury-determined settlement—blends SJT and arbitration. The jury is empaneled, and the trial proceeds similar to a SJT. At end of JDS, jury gives binding settlement rather than a verdict.
o        What is an Ombudsman? (p. 16)—master of all tools of ADR→formal investigation, reporting, persuasion and mediation→NO power to enforce ∆s—persuasion is key/counselor/negotiator/mediator all kinds of different ways, person to go to-
Answer: may be combination of 1) mediation arbitration-maybe same mediator OR 2) arbitration/mediation
2.                   Socrates—virtue = know; no specl wisdom—only wisdom he had was that he did not know–
Admitted he knew nothing; No special wisdom; “I have no special knowledge, except that I do not know.”; Have a wisdom that allows you to see that you don’t know everything; Said Virtue equals knowledge.
 
1.                   mediate = lat derivative of→“mediare” which means “to be in the middle.”
Diff stages of med –with trad model—info gathering, ____obptn gen, barg, negotn—23:44
o        1) Preliminary Arrangements: need schedule, location, time & date, rules, fees, packages- bios, resume (Referrals; fees; authority to settle; timing; court order) Initial decisions on process
o        2) Welcome/Introduction: describe process, cover ground rules; goals/objectives; confidentiality (let know not repeated in courthouse if in separate rooms), permission to play devils advocate, words not used against them, don’t presume want to be together or separate. Set the stage→goals for mediation plus housekeeping (get parties into comfort zone—describe process, ground rules, objectives, confidentiality); describes process (no pressure, everything confidential, mediator not there to make decision for you); set ground rules; goals and objectives from the mediator may be set out here, usually start with joint caucus (not adversarial meeting).
GF—ask if summarize facts or ask questions
o        3) Opening Statements by Parties: may include venting; do not interrupt; done by parties and attorneys (they give view); may need to establish time limits if a complex, multi-party case.
o        *(4)(Ventilation)àconstructive/destructive p. 64→people vent b/c ready to stick it to other person (let them get it out, long as not hitting), if it becomes adversarial, split into separate caucuses; ventilation is very important (express feelings to resolve dispute)
o        5) Information Gathering: ONGOING may get this before split up and go to other room, same figures or meds? (this goes hand in hand with ventilation- mediator should ask open-ended questions)
*(6)(Caucus): open ended questions to invite more venting, active listening→attempt to ID exactly what issues are in dispute—similar to underlying interests→once ID issues→move parties towards gererating ideas/options/alteranatives→usually in ID issues and underlying interests and option generation that the mediator privately caucuses—issue ID jointly 1st the get to actual issues agreed on of the dispute in private caucus→Specific questions in private caucus
o        7) Issue & Interest Identification: come back to this several times (attny fees come up at end), reality testing- check out with each side the realistic possibility of attaining what he or she is hoping for; once information has been exchanged identify what issues are in dispute) May also want to set an agenda as to which issues will be dealt w/ in a specific order.
o        8) Agenda setting: what issues focus on most. Agenda setting in private caucus
o         
o        9) Option generation: get into proposal, counter proposal (what can you do about the problem; usually done in separate caucuses)→movement from initial positions; usually done in private caucus;
o        10) Alternative to Negotiated agmt/Reality testing—upside downside—weaknesses/enforceability—will TC accept—how will jury vote—BATNA/WATNA, role reversal, would you laugh or leave if other side?
o        11) Bargain and Negotiate: give and take to get w/in range of settlement- get both sides to move, depends on facts, negotiation style. Mediator may also engage in reality testing by checking out with each side the realistic possibility of attaining what he or she is hoping for to move off unrealistic positions.→is proposal enforceable—will judge accept agreement; will proposal drive other party away; positioning—get in range of settlement (does not mean you move the same on each side); just need movement from both sides.
o        12) Agreement: in writing (rule 11 type agreement), who drafts, outline w/ checklist, if language not specific, then specify arbitration agreement if

           One party wants to delay a resolution
8.                   likelihood of bankruptcy exists (thriving part of ADR)
9.                   Discovery is needed- Some cases aren’t ripe yet (need some written discovery)→ the dispute is not ripe (cant use mediation for discovery);
a.                               Parties may use mediation to find out how good the other side’s case is
10.                Enforcement of the outcome will be necessary (but have been successfully mediated)
 
o        Can a case be approp if formal disocv not completed? Sure—
Overt conflict: Counseling and Calming Skills
Do not allow venting to become uncontrollable.
Not an advocate for either party and should refrain from therapeutic intervention;
Demonstrate awareness of the parties’ feelings;
 Provide a safe environment to vent;
a.                                        Can’t allow ventilation to become uncontrollable;
b.                                        Constructive ventilation: where a party reveals additional information while venting;
c.                                         Destructive ventilation where the party threatens, calls names, etc
In cases of overt conflict:
Use basic calming techniques: softening of the voice, providing tissue, light touch on the arm.
Refrain from becoming emotionally involved in the matter, but empathy and understanding okay.
Must remain objective and neutral
o        decker v Lindsay—landmark case—
o        In light of –lt d in how much can be req in negot in gf—adr stat does give tx tc inh pwr to requ—26:53—authority attend—attend—or sanctions
o         Decker v. Lindsay (very important case): court can order you to mediate but not settle.
§         Texas Case: Issue: (1) Can a party by compelled to participate in an ADR procedure despite its objections? Court ordered mediation without any hearing. Judge’s order: Mediation is a mandatory but not binding settlement conference … [e]ach party and counsel will be bound by the rules of mediation. Counsel and parties shall proceed in –good faith to resolve this case. Commitment to participate in good faith means participating in good faith with the intention to settle. Stowers doctrine: An insurer has a duty to the insured to settle a lawsuit if a prudent person in the exercise of ordinary care would do so. Issue: If state law says that mediation is a “voluntary procedure”, how can someone be compelled to go? ROL: While the purpose of the law is to encourage peaceable resolution of disputes through voluntary settlement, a court may compel parties to ADR. If the court orders ADR and a party objects, the court may not order mediation if there is a reasonable basis for the objection. ROL: The court can order ADR but cannot order negotiation.
·         Mandamus that resulted in an order to reform mediation
·         Judge ordered parties to negotiate (cant do this)
·         RULE: a court cannot force the disputants to peaceably resolve their differenced but it can compel them to sit down with each other.
·         Court has the power to       appoint a person tomediate and apply a fee (cant complian about the fee)
·         Parteis must show up and pay; if they refuse to talk that is okay, you have done your part; if mediator does not show up, they are subject to sanctions
·         RULE: if you terminate parental rights, you want someone to come in and adopt the child or else it is not in the best interest of the child to terminate parental rights.
§         mandamus granted b/ ct required good faith to settle case
RULE: A court cannot force the disputants to settle, but it can compel the parties to mediate.
Rule: NOT subject to sanctions if have bad attitude- must show up. Good faith effort enough- can show up w/ bad attitude though
pirtle—after decker—whether objen filed to med being ordered—if you haven’t filed objn to med and show up and do nothing = risk of sanctions—if filed = covered yourself—fmust be filed 10 days after ct refers to med
Texas Dep’t of Transportation v. Pirtle: Texas Case: DOT won at trial but court assessed them with Pirtle’s attorney fees associated with mediation b/c it said that the DOT failed to mediate in good faith. ROL: The successful party to a suit shall recover of his adversary, all costs incurred therein, except the court may, for good cause