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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.

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

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.

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.

Arbitration Dispute Resolution For Parties Litigation

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.

Dispute Resolution EDR Litigation Mediation Strategy