Highly Experienced Mediation And Alternative Dispute Resolution Services
Nearly every lawyer understands that litigation isn’t a one-size-fits-all solution to legal disputes. In fact, it can sometimes do more harm than good. Mediation and other forms of alternative dispute resolution have become increasingly popular in recent decades, but many attorneys are hesitant to use them because they have not found a trusted resource to facilitate these processes on behalf of their clients. If you practice in Southeast Texas and need ADR services, look no further than Trent at Branick & Devenzio.
Trent has been mediating cases both large and small for over 30 years. He became a mediator at age 19, one of Texas’ youngest mediators ever, while working for the Jefferson County Dispute Resolution Center. Using a commonsense approach, Trent has successfully assisted with the resolution of thousands of cases. He was named the Mediator of the Year for the Jefferson County Dispute Resolution Center in 2004 and continues to train mediators at the center.
Types Of Services, Settings And Rates
Trent can help you and your clients resolve a wide range of disputes, including:
- Mediation of all civil disputes
- Arbitration of personal injury claims and lemon law claims
- Special master services upon court appointment
Branick & Devenzio can accommodate a three-party mediation in its Nederland office, but provision of services in other locations is also available. The cost for mediation services is $150.00 per hour per party, and the total cost of the mediation will be invoiced after the process is completed.
What To Include When Submitting Briefs
Submitting briefs is encouraged, as they greatly aid in the preparation process. When submitting, please make sure the brief includes:
- The names of those persons who will be present at the mediation
- The status of the negotiations
- A brief summary of the liability facts of the case
- Any issues that come to bear upon medical causation
- The nature and extent of the damages
- The value of any applicable liens
You’ll find more information about the importance of briefs in the following section.
How To Ensure A Successful Mediation
Over the past 30 years of mediating cases, Trent has observed issues, factors and concerns that dictate whether a given mediation will be successful or not. While the following thoughts are not exhaustive, if all parties address these issues and concerns expressed herein, it is expected that every case can be settled during mediation.
The following represents the most common reasons why cases do not settle at mediation:
Ripeness – While it may seem obvious, it is important that only cases that are ripe for mediation should be scheduled for a session. Parties are encouraged to evaluate whether all parties are prepared to resolve the claim relative to the status of discovery, the availability of all relevant evidence, the current fund of knowledge of the decision-makers and whether the parties are on common ground regarding the important issues.
Client preparation – Over the years, it has become clear that pre-mediation client preparation is crucial to a successful mediation. In this regard, it is important to explain the nature of mediation to a person who has not participated in mediation before. To the uninitiated, you may want to discuss the artificial nature of the process and let them know that it is a mechanical process, inform them that the last offer is all that matters, and that they should keep emotion and egos out of the process.
Explaining the process – To those parties that are new to the process, it can be helpful to explain the mediation process from opening session to the final agreement. Unlike arbitration, most people do not know what mediation is or how it works. The more comfortable they are with the process, the more likely they are to buy into the process. Explain confidentiality as you encourage your clients to open up when talking with the mediator and explain that the more insight the mediator has into the parties, the better he or she will be at discussing the strengths of the parties’ position in the other room.
Discussing strengths and weaknesses before the mediation – It is vital that you discuss strengths and weaknesses of a case with your clients before the mediation by introducing the arguments that the other party will pose during the mediation. By doing so, you can manage expectations. In this regard, it can be helpful to discuss with the party what the case is worth from a jury standpoint and discuss the difference between the legal reality and their reality.
Explaining the role of the mediator – When preparing an inexperienced participant, explain the role of the mediator and let the parties understand that the mediator is there as a neutral party. However, you should also let them know that the mediator will talk about the good and bad parts of their case.
Client control – If you have a difficult client, let the mediator know. This acknowledgment informs the mediator that he or she needs to take extra care to establish rapport with the difficult or combative party.
Opening – Trent almost always encourages parties to have an opening session. While there are exceptions, an opening session will quickly get all of the issues out on the table and will allow the mediator to maintain the appearance of neutrality during the private sessions. Therefore, once the “reality testing” begins, the parties will not look at the mediator as the bad guy who is slashing their case – thereby causing distrust in the mediator.
Exchange Evidence Prior To The Mediation – Another important consideration is to convey any and all evidence to the opposing party well in advance of the mediation. This is especially important when negotiating with an insurance adjuster who is required to obtain settlement authority from a supervisor prior to gaining mediation settlement authority.
Damage presentation considerations – In regard to the presentation of damages, it can be helpful for plaintiffs to provide fresh, real-life examples of pain or impairment during the opening session. As for medical expenses, always be ready with the net amount of the bills in light of Haygood v. De Escobedo. When presenting or defending a claim for decreased earning capacity, always be ready with the net amount of the lost wage claim pursuant to Tex. Civ. Prac. & Rem Code section 18.091.
Always file a brief – It is suggested that all parties file a written brief with the mediator well before the session is scheduled. The brief empowers the mediator to effectively reality test with credibility because the mediator will be well educated about the issues. Reality testing, of course, is the process by which the mediator explores the potential negative outcomes with your clients to make sure that they are making an informed decision as they reject a possible mediated resolution.
Choose A Style Of Mediation That Will Work For Your Case – As you prepare for mediation, it can be helpful to decide which style of mediation would be best for your particular case. Specifically, consideration should be given to whether a competitive style or a collaborative style of mediation would work best depending upon the personalities of the attorneys, the personalities of the parties, the facts, the law, and the nature of the previous negotiations.
Competitive style mediation is defined as, “a preference for dominating and forcing one’s decision on others. Those who use a competitive style are not necessarily uncaring about others, but they value their self-interest or getting the job done more than they value how other people feel about the situation … Because the objective is ‘win-lose’ in favor of oneself, one gains at the other’s expense.” – Roxane Lulofs, Conflict from Theory to Action 2000. Quoting Dudley Cahn. Arguably, most of the mediation practiced in Southeast Texas revolves around the competitive style of mediation; this is borne of the litigation process and is the style most attorneys are comfortable with at this time.
A collaborative style is a “preference for solving problems and developing mutually satisfying agreements … Collaboration is a style of win-win in which one’s attempts to satisfy personal concerns and the other’s concerns and one’s motivation regarding trust of others are also maximized.” – Roxane Lulofs, Conflict from Theory to Action 2000. Quoting Dudley Cahn. To add nuance to the point made above, most of the mediations in southeast Texas actually start and finish with the collaborative style, but the middle is focused on the competitive style. The opening session starts as a veiled attempt at collaboration, and settlement typically occurs when the parties decide to collaborate to end the mediation.
If the parties are intent on having a competitive style mediation, plan on a full-day mediation to allow the mediation to evolve from a competitive mediation to a collaborative mediation.
Based on Trent’s observations, the attorneys and parties are much more satisfied with a collaborative mediation from start to finish, and the success rate for mediation is a lot higher when all are engaged in collaborative mediation.
Understand The Liens – Perhaps the biggest reason that cases do not settle at mediation is a lack of a firm grasp of contractual and statutory liens. For this reason, consider reducing liens before mediation. As for a potential Medicare Set Aside arrangement, it can be helpful to get an agreement with the opposing attorney as to whether a set aside will be done or not, and, if so, how much will be set aside, and whether the set-aside amount will be handled by a third party or by the claimant.