Going Back to the Office: Leave the Mediator Out of It

Going Back to the Office: Leave the Mediator Out of It

After two years of remote work, a number of companies and firms are asking employees to return to their offices. Some are happy and some are not-so-happy about this transition. Inevitably, there will be a re-adjustment period … again.

Over the past 2 years, most of us have mostly communicated – if not exclusively communicated – with our colleagues and clients behind keyboards and in front of computer screens. Returning to work in the same physical workspace will certainly be a bigger adjustment for some than for others. With a number of people changing jobs or starting their careers there are sure to be some new faces roaming the halls. In many cases, the physical workspaces themselves have changed too to adapt to physical spacing concerns in post-COVID working arrangements.

When two-or-more humans interact, there is always a chance for conflict. But as professionals and team players, most office disagreements can be addressed with just a little common sense, courtesy, and – perhaps – a well-placed bit of humor and humanity.

The following are just a few suggestions – reminders, if you will – to help you deal with potential missteps as the transition and commute back to the office continues.

Step One:    Step away from the keyboard and videocamera.

This tip may seem obvious but even before COVID many of us may have relied too much on our keyboards. This probably won’t come as a surprise, but studies show that conflict can be fueled by over-reliance and usage of communication technologies. As an antidote, the obvious thing to do is spend some time meeting in person and talking through the pressures people are facing in order to build rapport, trust, and a team.

But don’t take my word for it, in his book, The Speed of Trust: The One Thing That Changes Everything, Stephen Covey says that “Research shows that face-to-face communication regarding attitudes and feelings is 7 percent what people say, 39 percent how they say it, and 55 percent body language.” It’s harder (sometimes impossible) to read body language through a computer screen.

So now that you’re back in the office, grab a couple of cups of coffee, walk down the hallway, and spend a few minutes in front of your colleague’s desk to catch-up or talk about that thing he (or you) said or did that you can’t get off your mind.

Step Two:       Seek to understand the concern from the other person’s perspective first.

If you’re needing to talk about something sensitive or possibly controversial, approach the conversation with the goal of seeking to understand before wanting to be understood. While it’s doubtful an office conflict will grow into a legal dispute, the story Covey tells about when he first became CEO of the Covey Leadership Center illustrates the power and importance of listening first.

According to Covey, he took the helm of the Center while it was involved in eight legal disputes that had dragged on for too long. Those legal disputes were consuming “enormous time and energy, and [he] was frustrated because [he] felt [they] should be focusing [their] efforts elsewhere.” So he set a goal to resolve them all within two months, and met it in all but one instance.

His ”basic approach was to listen to the other parties first.” (emphasis supplied). By engaging the other party in a conversation, Covey gathered information about the conflict and demonstrated a desire to understand their perspective. By simply listening, he “created the openness, trust, and understanding needed to come up with solutions” that worked for everyone.

A powerful thing happens when you talk through difficult issues with someone and listen well. You open the door for each of you to better understand the other, especially if you really care and show an interest in wanting to build trust and a team.

Step Three:     Approach the conversation with an open-mind and curiosity.

If you are about to engage in a difficult conversation, it’s possible there will be a difference of perspective or opinion about whatever it is that will be the topic of conversation. And that’s ok.

Embrace the difference and be curious about it. Ask open ended questions. Or, even better, don’t ask a question at all. Invite the other person to share her thoughts through the simple phrase: “Tell me your perspective on ___.” or “Tell me more about that.”

To put yourself into the right mindset for this conversation, you might try thinking like a scientist, the approach recommended by Occupational Behaviorist Adam Grant. Scientists are instinctively curious and, because they must be intellectually honest in their experiments, they don’t approach their work to achieve a particular outcome. They approach each experiment curiously – to learn something – not necessarily to influence.

Step Four:       Offer an apology, when appropriate.

We are all human. We all make mistakes.

Sometimes the right thing to do is to recognize our humanity and our mistakes and offer a friend or co-worker a sincere apology.

When an apology is appropriate, don’t make the mistake of offering a justification or saying too much. Be clear, genuine, and sincere.

In his book What Got You Here Won’t Get You There, corporate executive coach Marshall Goldsmith provides an instruction manual. Here’s how he says to do it:

              You say: “I’m sorry.”

To signal that you want to let go of the past and focus on a better future, you add, “I’ll try to do better in the future.”

And then be quiet. Don’t explain, complain, qualify, or dilute the power and authenticity of the moment.

Step Five:          Try to find ways to connect on a human level.   

How you approach this last point is optional. It is good to remember that everyone has a responsibility to the larger organization’s success and should take advantage of opportunities to connect on a human level. One way to do this is with humor, but there are other ways.

A little levity, in the right situation, can do wonders for reducing friction in a relationship and opening lines of communication. In the appropriate situation and with the right person, consider its usefulness.

For example, in addition to bringing a couple of cups of coffee, or perhaps, in the alternative, carry an inflatable bat (with smiley faces on it) as a prop. When the other person sees you carrying it, his curiosity will be triggered. He’ll wonder “why the heck you’re carrying that thing around the office.” At that point, you’ve got his attention. He’ll listen to you.

At the right time, again when appropriate, you can satisfy his curiosity in an infinite number of ways. Perhaps, you tell him you brought it with you as a reminder of something else you wanted to do or say (e.g., to invite him to a Houston Astros baseball game or calendar your kid’s t-ball game). Or jokingly tell him it was part of your “back-up plan.” Acknowledge that you don’t like these kinds of conversations and, if it didn’t go well, you were ready to offer him the option of continuing the conflict (not a real option) or an afternoon at the batting cages.  

If you’re a woman and think this last tip just won’t work for you, or maybe want some suggestions on how to incorporate levity into your professional world without compromising your brand, read What Mona Lisa Knew: A Woman’s Guide to Getting Ahead in Business by Lightening Up. Management psychologist Dr. Barbara Mackoff offers a “bold new strategy for less stress and more success on the job.”

Okay, that’s it. You got this. You don’t need me – or any other mediator – for this one.

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.

5 Reasons Not To Skip The Opening Joint Session

5 Reasons Not To Skip The Opening Joint Session

There are two ways to begin a mediation session: with an opening joint session and without one. Over the years, the once-prevailing approach to begin with a joint session seems to have lost its appeal. Often a joint session is viewed as unnecessary because the parties already know each other’s positions, or is considered not to be a good use of time, or there’s a concern meeting jointly could hinder the negotiations.

While all of these may be true in any particular case, most would agree that it is rare for one approach to be right in all circumstances. This article is not intended to debate which approach is better in any particular case. Instead it will simply highlight five ways in which an opening joint session can improve the mediation process. In other words, below are five possible reasons to consider for not skipping it.

Helps the mediator help the parties by establishing her role and authority as an impartial neutral

Every mediator opens a mediation with a few words of encouragement and, perhaps, some housekeeping about what to expect process-wise. While mediators can provide this information to each party separately, there are benefits to talking with all of parties at the same time.

When everyone hears the same information in the same tone of voice in the same order at the same time, everyone sees the mediator interacting with everyone else neutrally. By openly talking with all of the parties and their lawyers together, the parties are able to see the mediator as someone they can trust as a neutral collaborator. And for the mediator, it’s her chance to deliver the impression that this negotiation is not going to be like any other and, thus, establish her role in guiding the process.

In a world where first impressions matter, the mediator’s opening interactions with the parties set the stage for what follows. A joint session is an opportunity for the selected mediator to reassure all of the parties that their time in mediation is being well-spent, whether or not an agreement is reached. 

Reveals who the decision-makers are “in the other room”  

One of the most important factors in mediating a dispute is knowing that the right decision-makers are available and engaged in the process. Dwight Golann, in his book “Sharing A Mediator’s Power: Effective Advocacy in Settlement,” suggests that “[h]aving capable decisions makers is probably even more important than obtaining the best possible neutral.” In those instances in which a person important to the success of the negotiation is not likely to participate, Golann recommends asking the mediator to secure her participation.

During the joint session all of the decision-makers and their counsel actually see each other before the negotiation begins. A lot can be learned about someone simply by being in their presence. Indeed, one of the first rules of persuasion is to  “know your audience,” and one way to do that is to meet with it.

Affords an opportunity to directly persuade through storytelling

“If you need to make an argument about an issue about which you feel very strongly, don’t use rhetoric. Tell a story instead,” says John Baldoni, in a 2011 Harvard Business Review article Using Stories to Persuade.

As lawyers, we are trained to use logos (argument by logic) to persuade dispassionate audiences, like judges. But, in mediation, there are no judges and the audience may not be dispassionate. The goal in mediation is not to win over your opponent, it is to win-over your opponent. After months (sometimes years) of competitive legal jousting, for at least one day, the parties confidentially discuss what common ground, if any, there may be to end their fight. With this goal in mind, logos alone may not be the most effective means of persuasion.

In his book Thank You For Arguing, Jay Heinrichs explains how logos and pathos (argument by emotion) combined help to win-over an audience with greater ease. Together, logos and pathos appeal to both the brain and the heart of a person, respectively. Heinrich explains that “[w]hile our brain tries to sort the facts … our heart makes us want to do something about” them. 

In mediation, the joint session presents an opportunity for disputants to use storytelling – logos and pathos – to start the negotiation. Because stories are persuasive tools, the idea is not to reduce the level of advocacy Instead, a well-told story expresses a less combative approach to the day’s agenda while conveying a contrasting point of view. It’s an opportunity to convey – directly and persuasively – to an attentive audience (the decision-makers and the mediator) a very valuable message” either: ‘This is not going to be a cake-walk for anybody‘” or positional weaknesses that reveal “just how outgunned” a party is.

Having worked closely with their own counsel in preparing for mediation, the decision-makers come to mediation knowing their theory of the case, familiar with the other side’s theory, and armed with their counsel’s opinions as to the strengths and weaknesses of the competing positions. But they may not have heard the other side’s story told the way the other side’s lawyer will tell it. In other words, they may not have heard the story in the same way they will hear it when spoken from a new voice, and perhaps told more – or even – less persuasively.

If there is a concern that the other side might use a joint session to grandstand, instead of persuade, it is helpful to prepare the parties ahead of the mediation session. Talk with them about how to interpret such behavior and remind them that they can control only their side of the negotiation. Coach them on the importance of not reacting openly or being offended. Instead, prepare them to listen closely and accept the presentation as simply another piece of information. The more information the parties have about who is “in the other room” during a mediation, the better able they are to assess responses, options, and offers in the subsequent negotiations.

Reassures the parties by serving as a substitute for “their day in court”

“Mediation is not a court, but the process can give parties a better experience of being heard than a trial,” according to Golann.

Even though mediations are less formal than trial, a joint session makes the process feel a little more formal. It allows the parties to see and hear their lawyers advocate for them, and the other side’s lawyer represent the opposing view, in front of a neutral third-party – the mediator. Although a mediator makes no decisions, by experiencing this kind of advocacy parties are assured that they are being well-represented by counsel and heard by an impartial stranger. With that assurance, the parties are in a position to spend the day discussing ways to control the future, even if it is still hard to put the past in the rearview mirror.

Opens direct lines of communication between the parties

Once a conflict escalates to a point where litigation looms, communication between the parties often starts to deteriorate or even evaporate. As part of a sound litigation strategy, months (even years) can pass during which a party has relied solely on counsel to speak for them, creating distance between the underlying stakeholders in the dispute.

The confidentiality of mediation presents a unique opportunity for parties to share directly with each other. For individuals, it is an opportunity to talk about how the conflict has affected his/her life, business, and relationships. For businesses, it may be an opportunity to signal that there are more ways than one to resolve the conflict and the benefits to keeping an open-mind about the negotiation ahead.

In those cases in which a party wishes to speak, it can be impactful. In certain cases, it can be the reason why a settlement is reached.” 

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 Role of Ambivalence in Mediation

The Role of Ambivalence in Mediation

“Your ‘if’ is the only peacemaker; much virtue in ‘if’.” ~Shakespeare (As You Like It)

I recently listened to an episode of the Human Brain podcast entitled “The Benefits of Mixed Emotions” in which Shankar Vedantam talked with Psychologist Naomi Rothman about how feelings of ambivalence help negotiators reach better decisions. It made me think about how the seemingly paradoxical phrases “it depends” and “what if” relate to dispute resolution via litigation and mediation, or courtroom and conference room, decision-making.

The phrases represent a dichotomy between the decision-making prospects inherent in litigated versus mediated dispute resolution processes. “It depends” describes what can happen in a courtroom, while “what if” describes what can happen in a conference room. Interestingly, however, Rothman’s research seems to indicate that the uncertainty of an “it depends” outcome might actually improve outcomes negotiated through the lens of “what if” thinking.

Rothman’s studies indicate that having mixed feelings – aka ambivalence – in the decision-making process can help a person make better decisions. Feeling emotional ambivalence, she says, makes a person more “cognitively flexible” because the mind is processing a situation that feels complicated, which can be uncomfortable. The discomfort slows down the decision-making process, stimulates a desire for more information, tampers impulsive reactions, and inspires better outcomes. Having ambivalence, it seems, helps to prioritize accuracy over decisiveness, which makes a person more open and receptive to third-party advice, reduces emotionally triggered cognitive bias, and leads to more accurate thinking.  

Mediation’s Place in Decision-Making

As a mediator, I can’t help but think about Rothman’s research in the context of negotiations between litigants. Experienced litigators often exchange settlement offers before engaging in formal mediation without much success and begin the mediation process expressing doubt about the prospects of a resolution. Often, however, even those mediations end in a negotiated settlement. But, why?

Perhaps Rothman’s studies offer an explanation. In the podcast, she mentions two variables that impact how difficult decisions can be made better. The first is the environment. The second is the presence of an ambivalent negotiator.  

The environment. Rothman says the first step to taking advantage of ambivalence in negotiations is establishing a cooperative environment. This first step may be difficult to replicate between parties and their advocates outside of mediation. One can hardly imagine a more highly competitive environment than litigation, or more focused personalities than litigators. Indeed, ambivalence is not a trait associated with zealous courtroom advocates, where disputing parties ask strangers to choose between bilateral options to decide who wins and who loses. Nor are litigants generally comfortable showing ambivalence to an adversary after months (sometimes years) of time and resources have been expended in fighting.

In litigation, where the prospect of trial and waiver arguments are present, Rothman’s advice to be strategic about showing ambivalence resonates. Indeed, as Rothman’s studies reveal, a person who shares ambivalence in a highly competitive environment – like litigation – risks being taken advantage of.

But, even during litigation there is at least one day in which ambivalence is seen less as a sign of weakness, and instead as a sign of a good faith negotiator – the day of mediation. During a mediation session, parties and their counsel often appear in a neutral location (or online) and take a figurative time-out from fighting. To encourage candor and objective reality-checking, the Texas Legislature has adopted rules to preclude the use of what happens in mediation against a party. Viewed from this perspective, Rothman’s research suggests mediation as an optimal environment through which the benefits of ambivalence can become possible for negotiations between litigating parties. 

Ambivalent negotiator. Rothman says her studies show that an ambivalent person in a negotiation can impact how people around them process information and think. Instead of a bilateral approach to winning and losing, she says that a negotiator who demonstrates an interest in winning, but not at the expense of another, invites a willingness by others to consider more information, inspiring a collective willingness to search for a better outcome for all.

While Rothman’s studies suggest the kind of ambivalence found in the actual decision-makers themselves, in the competitive arena of litigation, where stakes can be high, an ambivalent mediator can set the stage for productive negotiations. Indeed, mediators trained in negotiation strategies and litigation tactics often intuitively express ambivalence, thereby offering a level of trust and rapport that is hard to replicate between disputing parties and capable litigators, whose duty and training inspire zealous advocacy.

In sum, what Rothman discusses in the podcast proffers plausible insight as to why mediated negotiations can be more successful than non-mediated negotiations between entrenched litigants. Perhaps one reason mediation works is because it combines a new environment and ambivalent negotiator with litigants facing difficult options. On the one hand, the parties know that resolution depends on the prospects of who a judge or jury believes. But on the other, they know that mediation provides a chance to control how the dispute resolves if a settlement can be reached. 

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.

Harris Hoss Earns Designation as a “Credentialed Mediator” by Texas Mediator Credentialing Association

Harris Hoss Earns Designation As "Credentialed Mediator" by Texas Mediator Credentialing Association

In January 2022, the Texas Mediator Credentialing Association (TMCA) accepted Felicia Harris Hoss’ qualifications as a Credentialed Mediator in Texas. The distinction indicates Harris Hoss’ commitment to delivering quality mediation services, satisfying the TMCA’s training, continuing education and experience requirements, and complying with its mandatory Code of Ethics and grievance process.

“It’s always my goal to provide lawyers and the parties with whom I mediate the best possible mediation experience and outcome for their situation,” said Harris Hoss. “The distinction as a Credentialed Mediator is one that serves as a reminder for me and, hopefully, for those with whom I work, the importance of always employing the highest standards of conduct in the mediation process.”

As part of its mission “to Promote Quality Mediation throughout Texas”, the TMCA has adopted standards of practice, a code of ethics for mediators, and a grievance procedure and educates the public about the benefits of mediator credentialing and the availability of its grievance process at no cost to the public or the consumer. For more information about TMCA, visit www.txmca.org.

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.

Harris Hoss Accepted on American Arbitration Association’s National Registry of Arbitrators

Harris Hoss Accepted to American Arbitration Association's National Registry of Arbitrators

Harris Hoss PLLC is pleased to announce that Felicia Harris Hoss has been accepted as a Panelist for the American Arbitration Association’s National Roster of Arbitrators and is active on the Commercial and Energy Panels. 

The American Arbitration Association (AAA) is a not-for-profit provider of alternative dispute resolution services for individuals and organizations seeking to resolve conflicts in a private setting and out of the public eye of a courtroom.

The AAA’s Roster of Arbitrators comprises distinguished former judges and leaders in the legal and business communities with industry-specific knowledge and expertise. In addition to maintaining ongoing educational requirements in the art and science of arbitration, AAA arbitrators are also required to uphold stringent standards of ethics to the public and the parties they serve.

Headquartered in New York, the AAA has regional offices across the United States including one in Houston, Texas. To learn more about the American Arbitration Association, visit: adr.org.

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 & Arbitration

Dispute Resolution Strategies: Litigation & Arbitration

Both litigation and arbitration are effective dispute resolution strategies that serve important – and somewhat similar – roles in our communities. However, they are not the same. This post will review some – but not all – of the differences between litigating and arbitrating a dispute.

Agreements to arbitrate

One of the most significant differences between litigation and arbitration is that neither party needs the other’s permission to resolve a dispute through litigation. However, a party cannot force another party to arbitrate, unless the parties have signed an agreement that includes an arbitration provision.

The terms and specific language used in the arbitration provision are central to determining whether one party can force another party to arbitrate a dispute. The general rule is that, even if the parties have agreed to arbitrate, if they have not agreed to arbitrate the specific issue in dispute, arbitration may not be compelled, and litigation may ensue.

Selecting the Decisionmaker

If the parties have an agreement to arbitrate and the dispute is one that falls within the scope of an arbitration provision, one of the first things the parties will want to do is select an arbitrator (or multiple arbitrators, depending on the terms of the agreement). The ability of the parties to select the person(s) who will decide how the dispute will be resolved can be a persuasive factor in choosing to agree to arbitration.

In litigation, judges and juries are the ultimate decisionmakers in disputes that are not resolved through settlement. When a lawsuit is filed, however, other than selecting the venue (e.g., location) for the filing, the parties do not have much control over who the judge will be. This may be important if the parties would prefer a judge who has particular expertise, knowledge, or education in the subject matter of the lawsuit.

Through an agreement to arbitrate, the parties can specify whether one or more arbitrators are deemed appropriate for a potential dispute and agree upon the kind of background and experience the parties desire a potential arbitrator to have.   

 

Timing for Arbitration

Trial judges oversee and manage many cases at the same time which can delay when the lawsuit is tried. In many courts, a lawsuit can stay on a trial court’s docket for a year or more before the first trial setting is reached.

Private arbitrators typically manage fewer cases and have more flexible schedules. It is not uncommon for arbitrators to consult with the parties’ counsel to find a mutually agreeable date for a final hearing, within a reasonable period of time.  

Having a say – that is, some control – over the timing of a final hearing may be especially important to parties in the wake of COVID-19’s impact on court dockets. Before 2020, it was generally accepted that parties could expect a first trial setting about one- to one-and-a-half years after the lawsuit was filed. In early 2021, the Chief Justice of the Texas Supreme Court indicated that civil lawsuits are not immune from the COVID-induced delays impacting many trial courts’ dockets.

Confidentiality

Confidentiality is often one of the primary considerations weighed by parties in their decisions to arbitrate or not. Unlike a lawsuit and trial, the filings made and hearings conducted in an arbitration are not matters of public record.

Cost

Cost is an important difference between litigating and arbitrating and is sometimes a reason parties resist arbitrating. Unlike in litigation, where the judge and jurors are compensated through public funds, parties to an arbitration proceeding are responsible for paying the arbitrator’s (or arbitrators’) fees (which may be based on an hourly rate) and, when an arbitral tribunal, like the American Arbitration Association, handles administrative tasks in the proceeding, administrative fees are also paid by the parties.

 

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.