Six Important Lessons from My First Year as a Full-time Mediator

Fri, Dec 6th, 2024 | by Miles Mediation and Arbitration | Article | Social Share

A year or so ago, I became a full-time mediator. While mediation had been a routine component of my 35-plus years as a trial lawyer, conducting mediations as the mediator is a strikingly different role and has taught me some valuable lessons.

Many of these lessons I anticipated because of the fine formal (shoutout to Tracy Leissner and Robert Hughes and the University of Houston Law Center’s 40-hour training program) and informal training I did beforehand, as well as the countless mediations in which I participated as an advocate.

But some surprised me, and they may surprise other new mediators — as well as attorneys who are new to mediation. Here are six mediation lessons I want to share.

A Dispute Can Settle Early on

A case — even a dispute that has yet to be filed — really can settle before the parties spend substantial sums in discovery and motion practice. There is a caveat: The parties and their lawyers must put work into the mediation process. I was skeptical at first, but I have seen it happen firsthand.

Trying to resolve disputes early on — the process is now often called early dispute resolution or EDR — seems to be gaining popularity. That is no surprise as litigation continues to get more and more expensive. When I have seen it work, I have noticed at least three things were present:

The lawyers had convinced their clients (or maybe it was vice versa) to come to mediation with open minds and positive attitudes about how to reach an early resolution.
The parties and their lawyers worked diligently during the mediation process to bridge material information gaps.
The lawyers (and therefore their clients) had good handles on their claims, defenses and potential damages.

Preparation Matters

When a lawyer shows up to the mediation having provided her client with a true assessment of the risks of the case, she has served the mediation process and her client well. When a lawyer shows up without having assessed the risks, he has potentially hindered the settlement process.

As a young trial lawyer coming out of Baylor Law School’s Practice Court and starting as an associate in the premier trial firm of Strasburger & Price, I was taught to draft a jury charge as soon as you knew enough about your case and then assess the chances of winning the answers that you want. That meant that you were also assessing the chances of winning or losing issues as a matter of law. Did I — and do we trial lawyers — always do that? Of course not. But the more I can tell a lawyer at mediation has done that kind of work, the better I feel about our chances of success on the day of mediation.

One Person Can Derail a Mediation

Even when the parties are adequately prepared, one “rogue” lawyer or party can derail a mediation. To help avoid this, I have learned to do as much as possible before the mediation, or at least at its very beginning, to unmask that person. It is usually not hard to spot him or her. What is harder is predicting whether that person’s attitude will change during the day. I try to learn more about the person’s motivation for being difficult. Sometimes it is emotion. Sometimes it is an unrealistic view of the case. Sometimes it is a person being overly aggressive for aggression’s sake. The more I learn, the better I can enlist other participants to help me bring the rogue in line.

An Opening Session May Be Productive — or Not

I have learned to handle whether to have an opening session on a case-by-case basis. By the end of my days as a trial lawyer handling mostly large, complicated commercial disputes, it was customary to skip an opening session. While training to mediate full time, I questioned whether skipping an opening session was always the right thing to do.

Sometimes it absolutely is, but sometimes it is not. I have watched opening sessions do their part to advance the parties more quickly to a settlement. I have also skipped opening sessions only to get together later in the day to tackle an issue that we could have been taken care of upfront. But I have also had mediations where certain folks should not have been in the same room together. So, I have learned to address whether to have an opening session in my pre-mediation calls, and I have found myself encouraging opening sessions when I notice some reason for participants to eyeball each other at the beginning of the day.

Pre-mediation Calls and Video Teleconferences Matter

Pre-mediation telephone calls and or video teleconference sessions are a valuable part of the mediation process. A year ago, I wondered how many busy lawyers would take the time for such a call. So far, every one of them have chosen to. We have used them to do many things, such as identifying missing information needed for effective negotiations, encouraging a more fulsome risk assessment, discovering the potential rogue, discussing whether an opening session makes sense or just getting to know each other if we did not already. These calls help set the stage for a successful mediation.

Following Up Can Make the Difference

Finally, lawyers appreciate persistent follow up when a settlement was not reached the day of mediation. (No, I’m not batting 1000%). By persistent, I mean following up until the lawyers tell me to go away. I have learned that such follow up may lead the parties to realize that much of the groundwork for a settlement was already laid, and we may be able to achieve after the mediation what we were not able to do the day of mediation.

*Originally published in The Texas Lawbook and reprinted with permission.

About Wiley George

Wiley George has been a full-time mediator since 2023. He mediates the types of commercial cases that he handled as a trial lawyer, including antitrust, bankruptcy and restructuring, breach of contract, commercial torts, construction, covenants not to compete, franchise and distribution matters, fraud, insurance coverage, intellectual property, legal malpractice, mergers and acquisitions, oil and gas/energy, public law, and securities.