If offered a Heineken, I’d say …

If offered a Heineken, I'd say ...

… “No, thank you.” It’s nothing personal, I just prefer other refreshments.

But the 2017 Heineken YouTube video “Worlds Apart” is an insightful example of how empathy and humanity can open doors for meaningful conversations on the road to understanding. Which makes me say “yes” to watching the video. 

If you haven’t seen the video, in it Heineken brings together strangers with strongly-held opposing viewpoints and asks them to follow directions on how to complete a task together. The task: building a bar. Heineken provides the materials with instructions on what to do with them. While they understand the goal of working together to build the mystery object, what they don’t know is that they have opposing viewpoints on topics important to them.

Once the bar is built, the participants are directed to stand next to each other and shown videos of each other expressing their viewpoints. They are then given a choice: either leave the room without speaking or sit at the bar they just built and discuss their differences over a Heineken beer.

What follows is an inspiring display of how the common experience of building the bar humanized the divergent viewpoints. And with a bit of empathy we watch each of them sit down and share their perspectives in a respectful and open-minded way. While acknowledging their differences, they listen to each other, and find common ground. 

What does this have to do with mediation?

Sometimes disputants seem to be so focused on winning their conflict that they lose sight of theirs and their opponent’s humanity. This can be especially notable in cases between strangers. But it happens too in disputes between friends, business partners or colleagues, and even family. They are so caught up in their side of the dispute, that they are not able to easily stand in their opponent’s shoes and see (or feel) the situation from their vantage point. While this is not true in every case or in every mediation, in those in which it is, the Heineken video is a powerful reminder of how important it can be for parties to find something in common on which they can begin to build a resolution, all without losing their dignity.

In mediation, this is a key task. The following are a few reminders of how to introduce a little humanity into the mediation process:

Find areas of agreement: Starting with pre-mediation conversations with the parties and/or their counsel, we should be looking for areas where the parties are (or can be) in agreement. Maybe the parties agree on liability but disagree on damages, for example. By talking about areas in which there is some common ground, we are able to not only facilitate a positive environment for the negotiations, but also to encourage the parties to look for other areas of agreement they haven’t uncovered yet.

Identify shared goals: Similarly, starting with pre-mediation discussions, it is helpful to know what the parties want to accomplish through the mediation and/or the lawsuit. Write this down in your notes, and when they have a common goal, ask permission to share. This can help to shift the focus from their differences to the things they both want to achieve and are committed to working for.

Identify underlying interests: Interests are not goals. To find an interest, we need to look beyond the parties’ positions to discover what is really driving the dispute. This usually is not openly obvious, but can be discovered through open-ended questions and learning about the parties themselves. By knowing what the underlying interests are, we may discover commonalities that will further build the bridge from both sides.

Acknowledge emotions: Emotions often run high in litigation and conflict, and that’s ok. Don’t ignore them. Recognize and validate them to create a space in which everyone knows they are being heard and understood.

Actively listen and encourage it in return: Actively listen to the parties as they talk about their goals and interests, and their emotions. But also encourage them to actively listen too. None of us know what we don’t know, and it’s through the process of paying attention to new information, or perhaps old information presented in a different way or by a different person (e.g., the mediator) we learn something that can shift views of the conflict and provide a clearer picture of a world without it.

Use neutral language: Neutral language is language that does not favor one party over the other or is perceived as judgmental or biased. It is key to creating a safe and respectful environment through which the parties can trust the process enough to end the conflict.

So, don’t judge the video by the beer. While I personally don’t like Heineken, I can appreciate the humanitarian message its “Worlds Apart” video envisages and what it demonstrates about the role of humanity in conflict resolution.  

Felicia Harris Hoss

is a credentialed advanced mediator (TMCA), arbitrator, early dispute resolution (EDR) neutral, and attorney with more than 25 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Factors Favoring In-Person Mediation

Factors Favoring an In-Person Mediation

In-person mediation and remote mediation both have their advantages and disadvantages. The choice between the two depends on the specific circumstances of the dispute. 

In those situations where cost, schedules, and geography are not barriers to meeting in person, the following factors are reasons to choose to mediate in person rather than remotely:

High conflict disputes: When emotions are running high or there is a high-level of distrust, appearing in person for mediation can help the mediator lower the emotional stresses and engender greater trust. Being in person also brings body language and clearer facial expressions into the conversation which lowers the risk of miscommunication and improves the overall effectiveness of communication.

Complex disputes: When the negotiations involve detailed discussions about complicated or complex issues, an in-person mediation allows for more nuanced communication which leads to a better understanding of each party’s position.

Cultural differences: When there are significant cultural differences between the parties, an in-person mediation allows for a better understanding of each party’s cultural preferences and communication styles, in part because non-verbal cues like eye contact, facial expressions, and physical contact are more easily noticed during the conversation. An in-person mediation also affords an opportunity for a mediator to build rapport and respect with food and drink options that helps make the parties feel more comfortable in what may be a stressful situation.

In-person mediations also make it easier to overcome language barriers, if the parties come from different backgrounds. It is easier to communicate with and through an interpreter, for example, in-person where reliance on a microphone or speaker quality are removed.

Confidentiality concerns: Many articles have been written and laws passed stressing the importance of confidentiality in mediation and the challenges presented to protect this aspect of a remote mediation. Simply stated, during remote mediations, it is impossible to know whether someone else is in a room and off-camera or if a party is recording the mediation session. By contrast, during in-person mediations, the mediator exercises a greater level of control over the environment which better assures that all parties are complying with their confidentiality commitments and information is not inadvertently being leaked.

Need for physical documents: While screen sharing is convenient, asking a person to make a document larger so it can be read, or to scroll one direction or another, or to switch between documents on the screen can be cumbersome, time consuming, and distracting. During in-person mediations, the physical exchange of documents and examination of other evidence is fluid and can be accompanied by private discussions between parties and their counsel.

Empathy: In situations in which a party’s physical presence in a courtroom may impact how a jury evaluates the evidence, an in-person mediation provides an opportunity to more empathically weigh how certain evidence or a party may present in a courtroom.

While in-person mediation may be preferred and generally more effective in these situations, this is not to say that conflicts with these factors cannot be resolved via remote mediation. Ultimately, the choice between in-person and remote mediation will depend on the specific circumstances of the dispute, the needs and preferences of the parties involved, the skill of the mediator, the reliability of technology, and the willingness of the parties to meaningfully negotiate in whichever forum is agreed upon.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, settlement lawyer, and early dispute resolution (EDR) neutral, with more than 25 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Party Control In Mediation: Tips & Best Practices

Party Control in Mediation: Tips & Best Practices for Clients

Mediation is uniquely different from any other aspect of a litigated or arbitrated dispute in that the parties determine how it will end. In other words, they are in control. They decide whether to settle and on what terms. They can be as creative as they want to be, subject only to what they reasonably consider valuable to resolution. They decide what the mediator may or may not disclose during the negotiation and who the mediator will be.

Contrast this level of control against what happens at trial, and a clearer view of why this benefit matters emerges. At trial, the decision-maker — either judge or jury — is a stranger to the conflict and to the parties’ business or personal affairs. A trial outcome is binary – there will be a winner and a loser. Decisions about what information the jury hears and sees, and upon which its verdict will render, are not made by the parties, but rather by the judge. Who the judge is, is determined through a process that is not controlled by the parties. After the trial is over, there is always the possibility one party will ask another set of strangers — appellate judges – to determine the parties’ future.

The Importance of Control

Whether a party values control or thinks the other side will, the importance of control in the mediation process cannot be understated. Along with confidentiality and creativity, control ranks high as one of the reasons why most people find resolution through a mediated negotiation.

Numerous books have been written discussing how control factors in human decision-making and inter-personal relationships. Books like William Glasser’s Control Theory: A New Explanation of How We Control Our Lives, Patricia Evans’ Controlling People: How to Recognize, Understand, and Deal with People Who Try to Control You and Robert Cialdini’s Influence: The Psychology of Persuasion have been around a while, and are just a few that explore and highlight how the feeling of control influence’s behavior. In his recent release, Catalyst: How to Change Anyone’s Mind, occupational behaviorist and Wharton School professor Jonah Berger discusses how the need for freedom and autonomy affects behavior. He says that, because people want to feel in control of their personal lives, pushing, telling, or encouraging someone to do something often makes it less likely that they will comply.

When people feel like they are in control, they are generally happier, healthier, and more willing to follow through on whatever it is that is expected of them. For a plaintiff wanting the other side to pay money or to do something (or not to do something) in the future, there can be tremendous value and peace of mind in not having to return to the courthouse to seek court assistance to force the other side to perform as commanded by a court’s judgment. For a defendant, knowing that the terms on which the conflict was resolved were consented to makes following through on the agreement more palatable, even if it still hurts a little.

So, in a word, having, keeping, and feeling in control during the dispute resolution process is powerful in that it not only promotes resolution, it also fosters follow through – real finality.

Preparing for Mediation

So, what can the parties do to prepare themselves for the mediation session. The following are a few considerations and best practices:

  1. Timing for mediation. It is rarely too early to consider mediation. Early in the life-cycle of a conflict or lawsuit is a good time to talk with counsel and/or the other side about the possibility of mediation. Often the crux of disagreement stems from a lack of communication or the wrong kind of communication. Involving a mediator can open and improve lines of communication, to help the parties understand each other’s point of view, and guide discussions down a path that bridges the differences.
  1. Understand the risks of litigation. Ask counsel to prepare and send a written objective case evaluation (“OCE”). An OCE should outline the known and unknown facts in the case, discuss the legal standards and requirements that will guide a court’s decision, review the strengths and weaknesses of both sides of the conflict, and offer an opinion of the likelihood of success as balanced against the inherent uncertainty of a trial or dispositive motion filing.
  2. Prepare yourself and talk with counsel. Before the mediation, schedule a time to talk with counsel about the mediator and the mediation process. Ask questions about the OCE and the materials s/he has delivered (or will deliver) to the mediator in advance of the mediation. Start the process of brainstorming what kind of offers you may be willing to make (or to accept) and the reasons why (e.g., the risks or costs of not settling versus the certainty of settling).
  3. Get to know the mediator. Most counsel will schedule a time to talk with the mediator before the mediation. If you want to meet the mediator in advance, ask to schedule a telephone call, Zoom conference, or in-person meeting. Start building a rapport with the mediator before the mediation, so that you arrive at the mediation with an understanding of who s/he is, prepare yourself mentally for the session, and are ready to help the mediator help you.
  4. Know your BATNA and what it costs in time, money, and distractions. Request a budget from counsel for the costs of continued litigation. Do what can be done to identify and evaluate the value of trade-offs between the present value of a certain proposal versus the uncertainty and costs associated with the trial process. This kind of information can be useful in evaluating offers and measuring how a prospective settlement measures against the effort, risks, and potential “win” at trial weighs against the associated investment needed to achieve that goal.
  5. Try to understand the other side’s perspective, even if you disagree with it. Spend some time thinking about the dispute from the other side’s perspective. Do not focus only on positions, the facts, or the law. In this exercise, also try to imagine their human situation. Ask yourself, what unspoken factors may be driving their decision-making. What can you do to positively influence their response to your offers and open their minds to resolution.
  6. Be prepared to help the mediator help you. Arrive at the mediation on time and bring with you the materials you need to help you make decisions throughout the day (e.g., key questions, depositions, documents, and the OCE, budget, etc.).
  1. Participate in good faith. Have an open mind. Most people are able to successfully resolve disputes at mediation — even disputes that they never thought could be settled outside of the courthouse.

No two mediations are ever the same, but with proper preparation and the right frame of mind, even a mediation in which settlement is not reached can meaningfully set the stage for resolution in the future. Once lines of communication are open, it is easier to keep them open. And most mediators will welcome the chance to keep the conversation going if the parties are so inclined.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with almost 25 years of legal experience. Through the years, Felicia has helped parties resolve civil and commercial disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations and arbitrations (ad hoc and administered).

“Winning from the Beginning” with Early Mediation

"Winning from the Beginning" with Early Mediation

In a recent podcast published by the Legal Talk Network, jury consultant Jason Bloom said that “Gen-Z” jurors (described generally as being born between 1995 and 2010) are statistically more inclined to try to “rewrite the law,” more plaintiff-oriented, and prone to larger damages awards. Depending on which side of the “v” a party lands, this might be good news or not-so-good news.

Regardless of which side of the “v” a party finds itself, it is news that should not be ignored.

As early as 2011, with the appointment of the Planned Early Dispute Resolution Task Force, the American Bar Association has shown an interest in early resolution strategies. With a growing backlog of pending disputes in civil courts, and the changing demographics of jurors, the timing is arguably ripe for broader discussions on the topic that include feedback from those who have used early settlement strategies successfully.

The ABA is delivering that programming as part of Mediation Week 2022 (October 17-20, 2022) through an online presentation entitled “Winning from the Beginning” which will spotlight early mediation.

On October 19th, a panel of experienced in-house and outside counsel and neutrals will discuss insights, tips, and strategies for effectively mediating disputes early. Participants will learn from:

              Theresa Bevilaqua, Partner at Dorsey & Whitney LLP (Minnesota)

              Lucy Clark Dougherty, General Counsel and Secretary, Polaris Inc.

              Mary Cullen, Attorney, Mediator & Arbitrator, The Cullen Group (Minnesota)

              Noah Hanft, Mediator & Arbitrator, AcumenADR LLC (New York)

              Chauntelle Wood, Senior Associate at Baker Botts LLP (Texas)

Among the topics to be covered, the panelists will share insights and strategies on

  • developing and using objective case evaluations,
  • persuading parties and opposing counsel to consider early mediation, and
  • how alternative fee arrangements (AFAs) support resolution strategies and foster relationships between parties and their counsel.

 

Registration for the ABA’s “Winning from the Beginning” 2022 Mediation Week online program is open until October 18th and available here.

As this year’s planning committee chair, I hope to see you on the 19th (Noon-1:30 pm (Central))!

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with almost 25 years of legal experience. Through the years, Felicia has helped parties resolve civil and commercial disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations and arbitrations (ad hoc and administered).

How Do You See It?

How Do You See It?

Some will first see a duck head; others a martian caricature. 

When told to look for something else, and given a hint as to what it is, most of us will rearrange the lines in the image and soon be able to “see” the other image too. Once we have more information; once we know there’s more to see; our brains are capable of reprocessing the same information and finding a different outcome.

The same thing often happens in conflict too. Which many of us have probably seen.

In an initial investigation, even before a lawsuit is filed, for example, we’ve asked a party or potential witness how s/he thinks the other side “sees” the brewing conflict. We’ve sought answers to questions like “What do you think is causing (or caused) the other side to engage (or not engage) in the offensive conduct?” and “What would you consider a successful outcome for the conflict?” and “What do you think the other side might consider to be a reasonable resolution?” And from the responses, we’ve watched as they reprocess the information provided to “see” the situation from the other side’s perspective. Questions like these are invitations to rearrange the same information with an eye for the opposing viewpoint. They tend to serve a dual purpose in not only stimulating an evaluation of risks and uncertainties, but also opening up options for resolution too. 

Again, as experienced litigators and problem-solvers, we’ve seen this process unfold many, many times over the years. But, recently, in reviewing some statistical data about Harris County civil caseloads, it was hard not to think about the value of doing this kind of thinking early in the lifecycle of a conflict through pre-suit and early mediations.

A review of data available at www.CourtStatPack.com indicates that in Harris County more than half of all non-family civil lawsuits that were resolved in 2019 and 2021 were removed from court dockets with the plaintiff’s consent pre-trial. Specifically, the data indicates that approximately 60% of all non-family civil conflicts deemed significant enough to warrant becoming a matter of public record were voluntarily removed from court dockets in the year before the pandemic and the year after the pandemic. 

Although there are a number of reasons why cases resolve, one significant and prevalent reason is often seen in mediation where, like the image above, parties are able to see the conflict (the past) and resolution (the future) differently and/or better able to understand the other side’s perspective more clearly. Many of us know what tends to follow that kind of thinking. Indeed, in many instances, what may have once been perceived as an unreasonable response, comment, decision, or action (or inaction) spurring the conflict on; now “seen” from an another perspective, perhaps better understood, doesn’t seem quite so unreasonable. Or maybe it still seems unreasonable, but the new information or perspective alters how the parties’ see other aspects of the case, including a potential zone of agreement that wasn’t previously within view.

Considering the data above, one might wonder how many of those conflicts that plaintiffs voluntarily removed from Harris County court dockets were mediated, or could have been mediated and resolved even, before the lawsuit was filed.

It’s impossible to know the answers without expending considerable time and other resources digging into the layers under the layers of each and every case filed in those years (see chart below). But, considering other available data indicating that more than 16,500 fewer cases in 2021 (49,043) than in 2019 (65,585) were removed from Harris County civil dockets, it is not hard to see the prospect of a growing backlog and the value early mediation offers not only to parties, but to the courts too in the current, post-pandemic environment. 

 

Charts and information in this article were obtained from a third-party website: www.CourtStatPack.com, which indicates the underlying data is gathered from the Texas Office of Court Administration. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with almost 25 years of legal experience. Through the years, Felicia has helped parties resolve civil and commercial disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations and arbitrations (ad hoc and administered).

Considerations for Early Mediation in Business Disputes

Considerations for Early Mediation in Business Disputes

 

Every conflict is different. In some business cases, disputes can be resolved through mediation before a lawsuit is filed; and, in others, mediation won’t be productive until after a round or two of discovery is completed. It’s not always possible to know whether parties will be able to successfully resolve disputes before the filing of a lawsuit, but there’s rarely any harm in discussing the prospect of a mediated negotiation early in the lifecycle of a business dispute, even if the ultimate consensus is to wait. 

With this in mind, this post reviews three reasons commonly cited for postponing mediation, at least until after a lawsuit is filed:

  • We don’t want to appear weak.
  • We want to win the race to the courthouse.
  • We need discovery before we mediate.

Appearance of weakness

Concern about an appearances of weakness is a response either side may express, but it’s probably more common to hear it cited by a defendant (or potential defendant). At a basic level, it’s really nothing more than a natural, human response to an attack – somewhat akin to a fight or flight reaction. But, in legal conflicts, there are so many factors to be weighed at the outset of a conflict, that its worthwhile to think hard as to whether an appearance of weakness is a relevant basis for avoiding an early mediation.

Let’s be clear, there are legitimate instances in which this is a valid concern. But, in most business disputes, an invitation to mediation at any time really shouldn’t be considered a sign of weakness. Nor should the willingness to accept an invitation to mediation be viewed as such. 

To illustrate, consider that, in most human interactions, invitations to do or participate in something are extended from a position of strength. An invitation to discuss what’s driving a conflict and ways to potentially resolve that conflict really is no different—it’s a sign of confidence.

The party proposing to engage in a conversation, even if it’s also a negotiation, actually does so from a position of strength. It is not always easy for a person to extend an invitation to meaningfully discuss a sensitive or potentially controversial subject with someone expected to hold an opposing view on the matter. Thus, the person extending the invitation is signaling “I am a reasonable person, interested in knowing and understanding your perspective, and discussing options for resolving the conflict on mutually agreeable terms.” These are hardly the traits of weakness.

The “race to the courthouse”

In terms of legal strategy, this reason for postponing mediation until after a lawsuit is filed has some merit. There can be legitimate legal, geographical, and other concerns about venue selection, for example, that a party wants shored-up before broaching the subject of scheduling mediation.

In consultation with legal counsel, this concern can be addressed and a conscious decision made as to whether proposing mediation before a lawsuit is filed realistically poses a risk to potential litigation strategies.

While the filing of a lawsuit might cause some parties to resist an early mediation, in other circumstances it could help to bring a counterparty to the table. The factors to consider on this point are too numerous and case-specific to address here. What’s important to remember is that, just because a lawsuit is filed, does not mean that efforts to negotiate a resolution may be fruitful only after extensive rounds of discovery.

Balancing the Need and Value of Discovery

In business litigation, the need for discovery before considering mediated settlement discussions is a topic that can be considered from two viewpoints – the viewpoint of a business owner and that of a litigator.

Let’s start with a recognition of the inherent value in fact-based decision-making, which in litigation is facilitated through the discovery process. The value of fact gathering through discovery, however, should include considerations of what information is already within the files of the business, what’s really needed to make a business decision about potential settlement (as compared to what is needed to try the case), and the inherent costs of the discovery process. The amount and type of information a business owner, for example, typically relies upon to make calculated decisions about risk and resolutions may not necessarily be the same as what a litigator relies upon to analyze risks relative to the prospects of a trial.

This should come as no surprise, since a business owner looks at conflict from a different viewpoint than a litigator. Most reasonable business clients view legal conflicts as problems detracting from day-to-day business operations. A litigator, on the other hand, likely sees dealing with legal conflicts as his business. As a result, even though both share the same goals and will work closely together to develop and implement a resolution strategy, a business owner may see the prospect of an early resolution differently—perhaps even more valuable—than a litigator.  

For example, a landlord responding to a premises claim may have strong defenses and talented counsel in place to prevail in front of a jury. If costs were not a factor, the prospective risks of an adverse judgment would seem to weigh in favor of going to trial. But, at what cost? 

Perhaps the costs not only include the costs of defense (attorneys’ fees, experts, and other related expenses) but also potential lost revenue, for example from an inability to lease the premises at a higher market rate while the conflict pends. Or, perhaps, it’s as simple as the landlord isn’t able to invest and acquire new properties because the funds are needed to defend the litigation. 

The business considerations that loom in the shadow of litigation are endless and too diverse to delve into here; but you get the picture. As part of an overall resolution strategy, it’s valuable for business clients and lawyers to candidly discuss their respective attitudes about risk and costs as they relate to discovery needed to meaningfully discuss settlement strategies and the prospect and timing for a successful mediation — early or not.

A Final Note

In addition to the feeling of relief a client has once a problem is solved, it’s worth noting that many clients will be inclined not only to continue building the lawyer-client relationship on future matters, but will also refer new clients to the lawyer too. This is to say, that early resolutions are helpful to establishing long-term relationships and pipelines for opportunities to gain new business clients. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

EDR’s Streamlined Information Exchange Promotes Informed Decisions

EDR's Streamlined Information Exchange Promotes Informed Decisions

The Early Dispute Resolution (“EDR”) protocols appreciate the potential for a ying-yang relationship between the value of discovery and its costs. As a result, the protocols seek to balance the competing interests of time and money with the value of having control, certainty, and efficiency over dispute resolution decisions. All the while, the protocols are drafted to foster and promote informed decisions.

For parties who understand and appreciate that full-blown discovery in litigation is imperfect, time-consuming, and expensive, EDR can be an appealing option to consider. In part, because it’s designed to help parties make informed choices within a structured and efficient mediated process, which allows them to control how and when their problem is solved.

One typically thinks of informed decisions as those that are supported by facts and information. How much information is needed to make an informed decision may be subject to debate in any given situation. But there can be little disagreement that business owners and executives routinely make and control important decisions based on limited information, within limited time periods, and out of the public’s view. To those parties, through EDR’s streamlined information exchange protocol, the decision-making process may look-and-feel similar to many other business decisions.

Parties engaged in EDR agree either to (a) forego the expense of discovery or (b) participate in a streamlined, focused information exchange process facilitated with the EDR mediator. As part of a negotiation process, as the name implies, EDR mediations occur either before a lawsuit or arbitration proceeding is filed or shortly thereafter. From start to finish, an EDR mediation generally takes place over a 30- to 90-day period.

“Discovery” within the EDR process, while designed to be meaningful and relevant, is different than discovery in full blown litigation. It’s more of an information-exchange which is not intended to “leave no stone unturned,” but rather to streamline the “discovery process” to focus on key information necessary to make informed decisions concerning possible paths to resolution. If appropriate and necessary, the information exchange may include witness interviews and/or short depositions (either on or off-the-record), in addition to streamlined document exchanges and interrogatories. Through this process the goal is to help the parties acquire “sufficient information” to inform their settlement negotiations.

“Sufficient information” provides a level of understanding of the key facts and legal issues from which an informed decision can be made about a dispute’s expected monetary value (EMV). A dispute’s EMV is a “forecast of estimated possible case outcomes discounted by the predicted likelihood of their occurring.” Once the parties have considered the information provided, they should be in a position to negotiate a settlement either informally through phone calls, meetings, and/or emails or may request a formal mediated negotiation session with the EDR mediator. 

Through the formal EDR process, the mediator’s focus and goal is to help the parties efficiently and effectively gather and exchange the information each needs to reasonably assess the conflict and it’s risks in order to make an “informed judgment” about whether to resolve the dispute in its early stages and, if so, on what terms (e.g., for what amount). 

In short, EDR’s systematic approach to information gathering offers parties an approach to solving a legal problem in a manner and with a means that, arguably, looks-and-feels more like the process business owners and executives implore in solving business problems and less like litigation.  

If you are interested in learning more about EDR or want to consider using it in your effort to resolve a dispute, Felicia has been trained by the EDR Institute and is available to assist.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Early Dispute Resolution: An Overview

Early Dispute Resolution: An Overview

Early dispute resolution (EDR) is a relatively new dispute resolution strategy. From the outset, it is acknowledged that EDR is not appropriate in all cases. But, in those cases in which it can be utilized effectively, it offers parties a uniquely different – cost-effective and efficient – alternative dispute resolution strategy.

EDR is designed to enable the parties and their lawyers to meaningfully and insightfully evaluate the value of a dispute without the necessity of going through the process of full-blown litigation. Ideally, it is a process engineered to guide the parties to an outcome that theoretically is within a reasonable range of values upon which a settlement would be reached if a lawsuit followed a traditional timeline.

From the outset, the goal of EDR is for each party to have “Sufficient Knowledge”, which is defined “as enough information to understand the merits of each side’s position and leverage, and to make an informed judgment as to the value of each side’s case.”

The key to EDR being effective is the agreement, trust, and candor between the parties and their respective counsel. When parties and their counsel participate in EDR, they are aided by a neutral who guides them through a four-step process aimed to help them resolve the conflict in as little as 30 days.

Here’s how it is designed to work:

Step One: Initial Dispute Assessment

In this first step, the parties and their lawyers begin gathering information from their side (e.g., employees), determining who the key witnesses are likely to be, and identifying the core claims and defenses in the dispute. Additionally, the parties determine what they don’t know and what, if anything, they need to know to meaningfully engage in the EDR process. Working with the neutral, the parties will not “go on a fishing expedition”; but, rather, will endeavor to identify only that information needed to understand the merits of each side’s case and leverage.

Step Two: Information Exchange

In this phase, the parties exchange the information gathered during Step One and request information from the other side based upon the assessment of what is needed to obtain Sufficient Knowledge. Parties are ethically committed to produce the information reasonably requested from the other side without regard to whether it is deemed helpful or hurtful to the case. If a party refuses, the attorney is obligated to end the EDR process.

Recognizing that trust can be a factor, the EDR Protocols available on the EDR Institute website (www.edrinstitute.org) allow the parties to ask each other to declare in writing that a “Compliant Response” has been provided during the Information Exchange. A “Compliant Response” is one in which (i) the client has made a reasonably diligent, good faith search for information and documents, and produced the reasonably responsive information and documents; (ii) the client has not narrowly construed requests for information or documents to withhold material information or documents; and (iii) party witnesses, or witnesses under the party’s control have made reasonably responsive and accurate answers to questions.

 

Step Three: Objective Dispute Valuation

If both sides have ethically engaged in Steps One and Two they each should have Sufficient Knowledge in this phase. It should now be possible to establish a risk-analysis valuation for the dispute utilizing defined variables.

In this phase, for most disputes, each party should be able to ask and answer the following six questions (although adjustments may need to be made for different causes of action and complex matters):

  • How much does each side expect to spend on attorneys’ fees and expenses to take the case through trial?
  • What would be the best and worst outcome for each side at trial?
  • Recognizing that the worst and best outcomes simply set outer limits, what is the reasonably likely range of damages from winning or losing (high, middle, low) on the core/material claims/counterclaims in the dispute, expressed in percentages?
  • Given the likely range of damages as to each material claim or defense, what is the likelihood of prevailing as to each number in the range?
  • Forecasting the estimated possible case outcomes, how should they be discounted by the predicted likelihood of their occurring?
  • What is the leverage factors apart from legal considerations in the case?

Each party should be able to answer these questions in a written report to be used as part of its negotiation and settlement strategy, and be willing to provide a copy of the report to the other side and to the neutral. This allows each party to assess the other’s analysis and allows the neutral to know how each party is viewing the case. From this information, the parties are in a position to negotiate.

Step Four: Final Resolution

In this phase, the parties negotiate – either directly with each other or with the assistance of the neutral – to try to reach a final resolution. If informal talks do not successfully resolve the conflict, a formal mediation may be conducted at this time. Ideally, substantive bargaining will begin much earlier in the formal mediation process which should result in a smaller time commitment.

If a settlement is not reached, the parties may still litigate.

A Note About Legal Fees

Alternative fee arrangements are able to create incentives for lawyers who achieve favorable results for their clients in a shorter period of time. For example, in “Planned Early Dispute Resolution User Guide” published by the American Bar Association the following was offered as one way to adjust a legal fee arrangement to promote early resolution:

“A fee arrangement for a party interested in resolving a matter promptly could provide bonuses for resolving the matter (meeting designated goals) within specified periods. For example, the lawyers might receive a 15% bonus if the matter is resolved in 90 days, a 10% bonus if resolved within 180 days, and a 5% bonus if resolved within 270 days.”

As zealous advocates, lawyers strive to obtain the best possible outcome for their clients. When lawyers are successful in obtaining such an outcome in a way that reduces the client’s overall financial investment, it is reasonable to encourage appropriate incentivized compensation.

If you are interested in learning more about EDR or want to consider using it in your effort to resolve a dispute, Felicia has been trained by the EDR Institute and is available to assist.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

The 6-Cs of Mediation

The 6-Cs of Mediation

 

Earlier this year, commenting on the impact COVID-19 has had on Texas’ judicial system, Texas Supreme Court Chief Justice Nathan Hecht “estimated that it will take three years to plow through the backlog of criminal cases, and that doesn’t include civil and child protection cases that have slowed as well.”  In short, it’s been suggested that litigants should be ready to wait for a trial setting.

Given the time value of money, the financial and emotional costs of discovery, depositions, motion practice and hearings, trial at some point in the future, and the risk of appeal from the jury verdict, parties should prepare to be patient while a lawsuit works it way through the court-system. 

While courts are working diligently to move cases along and render justice as expeditiously as possible, for those cases that are resolved without a trial, many of them find finality and peace through mediated negotiations.

Some of the reasons parties find mediation to be effective are summed up below in the “6 Cs”:  

(1) Confidentiality. The Texas Legislature passed the Texas Alternative Dispute Resolution Act which says it is the policy of the state to encourage the peaceable resolution of disputes and the early settlement of litigation through voluntary settlement procedures, like mediation. Tex. Civ. Prac. & Rem. Code §154.002.

As part of this Act, the Legislature established broad confidentiality standards, subject to a few exceptions. What this means is that mediated negotiations are generally deemed to be confidential, and not something to be discussed publicly, including an open courtroom.   

(2) Control. Control is an easy benefit to understand and often manifests in a couple of ways: (a) timing and (b) terms for resolution.

Timing first. The importance of timing was alluded to in the opening paragraph, but it should be noted that, even before COVID, it was not uncommon for it to take a year to a year-and-a-half for a case to reach its first trial setting on a court’s docket. The additional, COVID-induced backlog that courts are facing simply enhances the benefit to parties who want to retain control over when their disputes are resolved.  

Another way parties take control over timing happens when they mediate before a lawsuit is filed. While some courts require mediation before trial, the parties – again with the guidance of their counsel – can agree to mediate at any time, even before a lawsuit is filed.

Next, terms for settlement. On what terms a mediated dispute might be resolved is determined solely by what the parties are willing to agree to. Neither the mediator, the court, nor the lawyers are decisionmakers during a mediation. What this means is that the decision whether to settle and on what terms is completely under the control of the parties.

(3) Creativity. Creativity is a concept that may best be understood by comparison to what happens in the courtroom. In a courtroom, judges are to fairly and objectively apply the law to the facts, including whatever remedies are allowed under the law and in equity. Generally, those remedies include money damages, declarations of right, and injunctive relief.

While these remedies are reasons why lawsuits get filed, sometimes there are other things the parties deem valuable to a resolution.

In mediation, the parties are able to brainstorm, explore, discuss, and consider all of those options, if any exist. So, for example, an apology, a payment plan, or any other thing the parties may deem suitable can be offered during a mediated negotiation, in addition to money.

In other words, the options available to parties in a mediated negotiation are limited only by the parties’ creativity and willingness to agree to a compromise.

 

(4) Cost-efficiency. No one can legitimately deny that lawsuits and lawyers can be expensive. Or, that the more time it takes to resolve a dispute, generally the more expensive it can be both in terms of time and money, not to mention lost opportunity costs.

So, while this may seem like an extension of the Control benefit, it is worth mentioning separately because the cost of litigation can be a significant decision-point in a mediated negotiation, and thus often worth considering independently as part of an overall dispute resolution strategy.

 (5) Convenience: Prior to COVID, most mediations were conducted in-person, but today most are conducted online. Applications like Zoom (and others being developed and introduced) – which allow for breakout rooms, the exchange of information onscreen, and confidentiality – are some of the reasons online dispute resolution (“ODR”) is proving to be successful. Other reasons include the fact that ODR eliminates the need for parties, insurance agents, executives, lawyers, and the like to travel making it easier to fit online mediations into busy schedules.  

(6) Certainty. To appreciate why certainty can be a valuable feature of a mediated resolution, one should also appreciate that trials do not always bring an end to disputes.

After trial, one or more of the parties may decide to appeal the trial court’s judgment, which can delay the end of the conflict, add more cost in both time and money, and present a situation in which the appellate court’s decision may be different from the decision the trial court reached.

Through mediated negotiations, parties explore reasons and options to agree to end the dispute instead of proceeding to trial and, thus, rendering an appeal unnecessary.

Related Post: Dispute Resolution Strategies: Litigation & Mediation

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Dispute Resolution Strategies: Litigation & Mediation

Dispute Resolution Strategies: Litigation & Mediation

Both litigation and mediation are effective dispute resolution processes that serve important roles in our communities. Sometimes they are used in conjunction with each other, and sometimes they are not. When and why to litigate and/or mediate are decisions a party should make with the help of a lawyer. The following are just a few strategy insights to consider.

Before strategy-talk, it’s useful to understand some basic similarities and differences between litigation and mediation. 

The similarity first. Litigation is another word to describe a lawsuit. Lawsuits are simply one avenue available to parties to resolve disputes. Mediation, like litigation, is also a dispute resolution process. Both are effective dispute resolution techniques; but, that’s really about where the similarities end and the differences begin.

So, the first difference to understand is the nature of the process.

Lawsuits are by their nature adversarial proceedings. Lawsuits get filed when parties are not able to agree on a way to effectively resolve their differences. Within the confines of a lawsuit, lawyers argue their respective client’s positions to persuade a decisionmaker – either a judge or jury – to agree with their respective client’s positions. The parties do not control how the trial will end. Instead, through a lawsuit, parties are essentially asking a branch of our government – the judicial branch – to decide for them how and when a dispute will be resolved.  

By contrast, mediation is a structured negotiation between the parties that takes place either because the parties have agreed to mediate, or a court has ordered the parties to mediate. In other words, while parties may seek to persuade their opponent to the strength of a position in mediation, through the assistance of a neutral mediator, the parties’ goal in mediation is not to over-power their opponent, but rather to build a bridge with an opponent to find a mutually agreeable path to resolve the dispute.

Next, lawsuits and mediated negotiations occur in different settings.

Lawsuits play out in a public forum – the courthouse. And, because the United States has an open courts system, most filings made in a lawsuit, and the related proceedings (for example hearings and trials), are matters of public record. What this means is that just about anyone can get access to information the parties file and the court uses to make decisions in most cases, including transcripts of hearings and testimony, if any are made. 

By contrast, mediated negotiations happen in a private setting, like a conference room. And, generally, those negotiations are and remain protected as confidential. What this means is that, subject to a few exceptions, parties can freely negotiate through a neutral mediator knowing that negotiation positions are not going to be the subject of a later trial examination if a settlement is not reached.

 

Another key difference between a lawsuit and mediation is how the neutral is selected.

In a lawsuit, judges are elected to office by voters, and once on the bench, cases are assigned by the clerk’s office through an impartial process the parties do not control. Similarly, as many of us have seen on Boston Legal, CSI, A Few Good Men, or some other lawyer-like shows, litigants really have very little control over who serves on a jury. It may be that the lawsuit involves a very novel or complex set of facts, or technology, or emotional issues – issues that the randomly-assigned decisionmakers – judges or prospective jurors – may have little or, sometimes, no prior experience with.

By contrast, when parties agree to mediate, not only do they get to select the mediator, the parties, their counsel, and the mediator will work together as active participants in the mediation process. The goal of the mediator is to help the parties — the only decisionmakers in a mediation – to evaluate and decide how they want to end their conflict.

While mediators may also be lawyers, mediators do not give legal advice or make any decisions. Instead, a mediator’s role is to encourage the parties – with the guidance and input from their lawyers – to consider ways they can resolve their dispute. When the parties feel stuck, a mediator may ask questions or make suggestions to help them evaluate their case or brainstorm ways to bridge their differences and find common ground for a resolution.

What can happen at the end of a trial, and what can happen at the end of a mediation, are also two things to be mindful of.

At the end of a trial, the judge or jury will reach a verdict, decisions upon which the court will then enter judgment. Once the judgment is entered, if one party (or both) do not like the judgment, they each have a right to at least one appeal. In essence, the trial judge or jury’s decision may not be the final say.

When successful, mediation ends with a written settlement agreement, which is intended to bring an end to the dispute. In fact, sometimes parties are able to resolve their dispute in a mediation that occurs even before a lawsuit is filed.

If mediation is not successful, a mediator will let the parties know that they are at an impasse, after which the parties are at liberty to continue efforts to resolve their disputes through the court system.

If an impasse occurs that does not mean the mediation was a waste of time. Often, even when the parties are not able to completely resolve their dispute in mediation, they find the mediation process assisted them in narrowing the issues, or at least getting a better handle on the strengths and weaknesses of their respective cases. This insight often leaves open the parties’ interest in continued negotiations in the future.

Most mediators know this and will stay in touch with the parties’ counsel by checking in periodically and offer to assist the parties either with another mediation session, or through informal measures, such as telephone calls and emails.

How quickly a dispute can be resolved through litigation and mediation is a difference that can be measured in time and money.

It’s not uncommon for parties to wait several years before a lawsuit is tried. During the period of time leading up to trial, the lawyers, witnesses, and others will usually spend considerable time and money collecting and evaluating evidence, witnesses, and positions. The whole process can be quite expensive, stressful, and distracting to one’s daily schedule.

By contrast, many disputes have been resolved (as discussed above) through a concentrated and focused effort to meaningfully negotiate over the course of a half- or full-day’s time. The cost of the mediator, and the investment of a few days or weeks preparing for mediation, can be significantly appealing to some litigants.

So whether or not to mediate or file a lawsuit first, when to mediate if a lawsuit is filed, and who to enlist to serve a the neutral mediator are among the things parties, with the assistance of their counsel, consider when evaluating one’s dispute resolution options.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.