Harris Hoss Elected Chair-Elect for HBA ADR Council (2023-2024)

Harris Hoss Elected Chair-Elect for Houston Bar Association ADR Council

Harris Hoss PLLC is pleased to announce that Felicia Harris Hoss has been elected to serve as Chair-Elect for the Houston Bar Association’s ADR Council during the 2023-2024 Bar year. 

The Houston Bar Association ADR Council provides education and makes information available to the 10,000-plus members of the Houston Bar Association on the benefits and opportunities available to lawyers and their clients through private dispute resolution options, like mediation and arbitration. In addition to monthly programming, each year, the Council hosts an annual CLE for its members and judiciary of surrounding courts.

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.

Reviewing Mediator’s Proposals

Reviewing Mediator's Proposals

A mediator’s proposal is a settlement recommendation presented confidentially by the mediator as an extension of meaningful discussions with each party. When provided, a mediator’s proposal relays a set of terms that the mediator believes each party might accept as a basis upon which to resolve the conflict.

To be clear, a mediator’s proposal is not a substitute for substantive party negotiations. If the parties can find a solution on their own, it is the inherent and primary role of the mediator to help them find it. However, in situations in which the parties have worked hard, exhausted their negotiation authority, and a gap remains, sometimes all the parties need is a little outside assistance – a nudge – to keep the process moving forward. 

When a mediator’s proposal is extended, the question then becomes what to do with it. The answer depends on the specifics of each case, but in almost any case, the following points will jump start a thoughtful decision-making process: 

First, determine whether the mediation is one in which the parties are negotiating in good faith.  Because the hallmark of a mediated settlement is party self-determination, the success of mediation depends on the parties’ good faith willingness to work together to find a solution. If the parties are committed to the process and have exhausted their authority, a carefully drafted mediator’s proposal may offer a fresh perspective that helps the parties overcome sticking points to resolution. 

If the mediator extends a proposal, review it carefully and objectively to determine whether it proposes terms that are fair and reasonable, specific and clear. While a mediator’s proposal may recommend terms upon which to resolve the entire conflict, it can also be designed to address specific roadblocks that need to be cleared to keep the negotiations going. However broad or narrow it may be, a mediator’s proposal, to be credibly considered, should address each party’s respective needs and interests and recommend a balanced solution that does not unreasonably favor one party’s interests or needs over another. 

A mediator’s proposal is not a substitute for a neutral evaluation of the case. There should be no doubt in a party’s mind that the mediator’s proposal does not reflect an evaluation of any party’s legal case. When presented in writing, a best practice is for the mediator’s proposal to expressly state that it is not intended to be (and should not be construed as) an opinion on the meris to any party’s claims or defenses should a trial ensue.  

Importantly, the proposal should clearly communicate the process and deadline by which a response must be confidentially submitted to the mediator. While decisions about whether to request, consider, or accept a mediator’s proposal are to be made on a case-by-case basis, the process for accepting or rejecting a mediator’s proposal should always leave open the option of future negotiations if the proposal is rejected. 

To this end, the mediator should ensure that no party knows how another responds unless all parties accept the proposed terms. If it is not otherwise clearly stated, the parties should ensure the proposal clarifies they are to separately and confidentially contact the mediator with all questions and other communications concerning the proposal, including a timely response to accept or reject it.

Finally, whether the parties accept the proposal or not, the mediator should contemporaneously inform them whether or not a settlement has been reached.

DISCLAIMER: As with any mediated negotiation, decisions about whether to accept or reject any proposal should be considered in consultation with your legal counsel. Nothing in this article is, is intended to be, or should not be construed as, legal advice. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, 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.

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.

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.

Arbitrating an ARB Appeal

Arbitrating the ARB Appeal

Texas property owners who are dissatisfied with the decision of the Appraisal Review Board (“ARB”) have appellate options. One of those options is to appeal the ARB’s decision through the court system. Another is to appeal through arbitration.

There are an infinite number of reasons why a property owner would choose to arbitrate rather than litigate, but high on the list likely is the fact that arbitration is designed to be a more expeditious, less procedurally-formal, and cost-effective path to resolution.

There is, however, an important similarity. Like a judge, an arbitrator is an impartial, independent third-person whom the parties are asking to resolve a dispute. And like a judge, the arbitrator’s decision is based solely on the evidence and testimony provided by the parties and nothing else. It is important, therefore, that the parties come to the arbitration hearing well-prepared to succinctly present and prove their respective cases.   

To that end, the following are some things to think about in preparation for the evidentiary hearing in an ARB appeal arbitration.

 

  1. Remember that an arbitration hearing is not an ARB panel hearing. Unlike an ARB panel hearing, there is only one decision-maker in the arbitration. The arbitrator also is – very likely – not hearing multiple appraisal cases in a day. As a result, the parties can expect to be afforded ample time to present testimony, argument, and evidence without the kind of restrictive time limits typically imposed in an ARB panel hearing. 
  2. Once the arbitrator is appointed, disclose in writing the names of all witnesses and persons who have a connection to or financial interest in the outcome of the proceeding. This will assist the arbitrator in satisfying duties to disclose known or potential conflicts of interest and/or to decline an appointment in which the arbitrator would be legally or ethically disqualified. See 34 Admin. Code § 9.429(f) and (g) and Tex. Civ. Prac. & Rem. Code § 171.088.
  3. The parties should provide the arbitrator with a written summary of their respective positions, citing the relevant facts, and legal and/or non-legal authorities relied upon. At a minimum, the summary should include a brief statement of the relevant facts, cite relevant authorities (and attach a copy with relevant portions highlighted), and explain how those authorities and facts persuasively lead to the requested proposed valuation.
  1. Mark each exhibit with a descriptor to assist the arbitrator and other party through the evidence at the hearing. This is especially important in remote hearing (as discussed in #7 below). Parties should use a numbering system that includes a prefix and number (e.g., OWNER 001 or XCAD 001) to differentiate between the parties’ evidence packets. [See also #6 and #7 below.]
  1. Arrive early to the hearing and be prepared to make opening remarks. Even if the hearing is remote, it is wise to arrive early so time is not wasted checking and, if necessary, repairing audio connections. Once the hearing is opened, be ready to make a brief opening statement. The opening statement should provide the arbitrator with a summary of your position. That position is not simply the appraised value that you want the arbitrator to award. The summary should provide the arbitrator with a glimpse of why there is a dispute and what the key evidence and testimony is expected to show.
  1. When presenting evidence and testimony: Show, don’t’ tell. And don’t rush or talk too fast. Remember, the purpose of the hearing is to educate and persuade. Take your time and walk the arbitrator through the testimony and evidence at a pace that allows the arbitrator to digest what is being presented and to take notes. Most ARB arbitrations are not recorded with audio or video equipment, which means that it is important that the parties provide the arbitrator ample opportunity to hear and understand the testimony, evidence, and arguments. Talking too fast and not repeating the key points of your position risks failing to clearly communicate yours or your client’s position. See also #2 above and #10 below.
  1. Guide the arbitrator through the evidence. When presenting evidence, guide the arbitrator through it by referring to the Bates numbered page and “checking in” with the arbitrator to make sure s/he is following the presentation. Again, this is especially important in remote hearings. Parties should bring the arbitrator and the other party along with them through the presentation. For example, say something like: “Let’s turn to page 12 of the packet and focus on the section at the bottom.” Pause and let the arbitrator and the other party turn to that page and “check in” by saying something like: “Let me know when you have that page open….” Then proceed with the testimony.
  1. Cross-examine the other side’s witnesses. It’s not always necessary to cross-examine a witness, but when it is, don’t skip it, even though it may feel awkward. Cross-examination need not be confrontational to be persuasive. Cross-examination is an effective way to demonstrate purported flaws in the other side’s evidence or analysis. It is an opportunity to highlight and educate the arbitrator about those points in your opponent’s position that may be unreliable, irrelevant, immaterial, or otherwise unpersuasive.
  1. Present a rebuttal and do it in an orderly and brief manner. Before the hearing, anticipate what the other side may say. And, while it is presenting its case-in-chief, listen closely, and take notes. Be prepared to provide rebuttal evidence, testimony, and/or argument to clarify or correct the record as deemed appropriate.
  1. Present a closing argument and do it convincingly. Never decline the opportunity to summarize and argue why you should win. Walk though the evidence and testimony that was presented and explain why the arbitrator should agree with one proposed valuation and disregard the other.

A good rule of thumb is to follow the three-step process often used in public speaking. First, tell the arbitrator what you are going to tell her. Then, through the testimony and evidence, show and tell her what you told her you were going to tell her. And finally, in closing, tell her – again – what  you told her, but add a persuasive conclusion stating why she should enter an award in your favor. 

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 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 to be Recognized for Contributions to Harris County DRC

Harris Hoss to be Recognized for Contributions to the Harris County DRC

These past couple of years have been harder on some than on others. For those caught up in a legal conflict, and unable to afford the cost of mediation to try to negotiate a resolution, it can seem like “the worst.”

This is where the Harris County Dispute Resolution Center, its committed staff, and a slew of experienced volunteer mediators step in. They (we) provide — for free — an opportunity for the parties to control the outcome of their conflict through mediated negotiations.

It is a privilege to serve. To be selected to receive the Houston Bar Foundation’s 2021 Award for Outstanding Contribution to the Harris County DRC is an unexpected surprise. 

As the charitable arm of the Houston Bar Association, the HBF supports programs that help provide legal representation to the indigent, promote community understanding of our legal system, and fosters the administration of justice.

The Houston Bar Foundation 2022 Annual Meeting and Award Luncheon is scheduled for Tuesday, February 15, 2022 at The Corinthian Houston. It will feature a keynote address by Bill Kroger, Immediate Past President of the Houston Bar Association, Former HBF Chair, Sustaining Life Fellow, Partner at Baker Botts LLP and Recipient of the 2021 James B Sales Pro Bono Leadership Award. 

Tickets for the event are on sale now through the Houston Bar Association.

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.