In 1987, formal mediation was first introduced in Texas by the passage of the Alternative Dispute Resolution Act. Since such time, Texas litigants have often avoided the temporal and monetary costs of trial by engaging in pre-trial mediation. Furthermore, mediation is almost always ordered by the court before trial. Mediation affords the parties an opportunity to resolve their dispute without the costly burden of court intervention. However, to engage in successful mediation, two factors of the attorney-client relationship are key: open communication and thorough preparation.
To mediate successfully, attorneys must ensure they understand their client’s interests. In addition, client must be aware of, and be willing to accept, the consequences if mediation is unsuccessful. Thus, active communication between client and counsel is essential to engage in productive mediation. Prior to mediation, attorneys should be informed of:
(i) what the client wishes to achieve in mediation (i.e., what is important to them in the dispute and how the issues involved relate to broader issues of relevance, such as the client’s values or broader commercial interests);
(ii) the client’s account of the facts involved in the dispute; and
(iii) whether the client has legal authority to resolve the dispute.
On the other hand, the client must also be aware of various considerations before walking into mediation, such as:
(i) what will happen if the case does not settle;
(ii) what is the risk that litigation will be unsuccessful and what would the consequences be; and
(iii) the time, cost, and disruption of further litigation and whether success in litigation will end the dispute (appeal).
To convey this information and to consider these questions, open communication between client and counsel must take place early and often. As a result, the client and attorney will be in position to maximize the opportunity for a successful mediation.
The other key factor of the attorney-client relationship, which is necessary for successful mediation, is thorough preparation. Client and counsel must work as a team to gather any and all information they foresee as being relevant to possible resolution of the dispute. Such information includes key fact or expert witness testimony, documents which rebut the amount of damages allegedly incurred, and all other documentation which supports the client’s position or theory of liability. Additionally, counsel must prepare the client for how the mediation will be conducted. The client and counsel should also consider who will be leading the discussions/negotiations with the mediator. In most instances the attorney will lead these discussions with significant input from the client. However, the client should be prepared to speak directly with the mediator. The mediator is impartial to the parties’ positions and private discussions with the mediator are confidential and cannot be revealed to the opponent without prior permission. Thus, it is often useful, to use the mediator as a sounding board for ideas of how to find a settlement. Before doing so, the client and counsel should have developed a plan for this purpose. Nonetheless, it is important to understand that the mediator’s primary interest is for the parties to reach a settlement and because of this, the client and counsel should be sensitive to disclosing any confidential information to the mediator that they absolutely do not want shared with opposing counsel.
When the client and counsel have open communication and work as a team to prepare for mediation, the chances of successful settlement increase substantially. The client’s interests and goals for mediation will be clearly understood and the attorney will be prepared to advocate for the client as effectively as possible. Therefore, our client should feel like a member of the team and should be welcome to contact counsel at any time in preparing for mediation.
