What is Mediation?
Mediation is a form of dispute resolution in which an independent third party, the mediator, works with the mediating parties toward a voluntary resolution of their dispute.
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Getting to Yes
As a mediator, my main goal is to see if we can work toward a resolution that is better for the parties than proceeding with a trial or arbitration hearing of their dispute. This is well encompassed by a term coined by William Ury’s seminal work – Getting to Yes – BATNA or Best Alternative to a Negotiated Agreement. If the negotiated agreement is better than proceeding through litigation or arbitration, then most parties will choose the negotiated agreement. On the other hand, if proceeding through litigation or arbitration still seems a better alternative than the best negotiated agreement presented, then most parties will proceed with litigation or arbitration.
My role, at the end of the day, is to present to the parties the best possible negotiated resolution, and then it is up to the parties to decide what makes more sense to them – resolve their dispute through a negotiated agreement or proceed to allow someone else, a judge, jury, and/or arbitrator, to make the factual and legal determinations for them.
Although each mediation is as unique as a fingerprint, successful mediations tend to share these common factors.
- The mediator must earn and maintain the confidence and trust of the attorneys and party representatives participating in the mediation.
- The mediator must be wholly impartial and neutral.
- The parties must have a person or people with the authority to resolve the dispute, or at least easy and timely access to such person or people.
- The parties must commit a reasonable amount of time to the process, at least to the blocked out time for the mediation.
- The mediator must keep confidential matters shared with the mediator in confidence.
Mediators are not decision makers
The mediator cannot and should not impose a decision or outcome on the parties. A mediator is a facilitator.
What it means to be wholly impartial and neutral.
This means the mediator cannot slip into an advocate or decision-making role for or against a party.
It does not mean that the mediator needs to sugar coat or distort the mediator’s independent view of the facts and/or law of the dispute.
Presumably when you are engaging a particular mediator, you are doing so, at least in part, for the mediator’s substantive knowledge with the factual and/or legal background to the dispute.
Invariably, I will explore with all the parties my views and opinions of the strengths and weaknesses of their positions. I endeavor to keep clear, however, that these are my perceptions and opinions, and that an ultimate fact and/or law finder may find differently.
Authority
Best option
The best chance for a successful mediation is when each party to the mediation has at least one person with complete authority to resolve the dispute present at the mediation. This is preferred. Admittedly, it does not always happen.
Second-best
The second-best option is when the person with authority is available by phone, hopefully to the mediator, but at least to the particular party.
Worst
If a party has limited authority and the person with ultimate authority is not going to be available at mediation, then unless the other party has been informed of this prior to mediation and still chooses to proceed, the mediation is likely doomed to fail unless and until the necessary authority is made available.
Time
Most mediations are scheduled for a full day mediation, typically 9:30 a.m. to 5:30 p.m.
Most full day mediations either resolve or impasse between 3:30 p.m. and 4:30 p.m.
The best chance of success is for the parties’ attorneys and at least one person with authority per party commit to the full day.
My commitment is to work as late as necessary. If a participant has a period when they have to be unavailable, or a time by when they have to depart, please let me know beforehand, and we can work around the conflict. By the way, unavailability for a limited time period, say an hour or less, or availability by phone, is almost always workable.
Confidentiality
In conjunction with mediation, there may be information that you want to keep confidential, but you may want to share with me.
I will keep confidential any information you share with me that you instruct me to keep confidential. It is important that you instruct me to keep the information confidential, preferably before you share it with me, but in any event before I leave your room.
Information you share with me that you do not designate as confidential I will presume to be information I can share with the other party or parties mediating. This includes (unless I am told otherwise) general background information, documents to which two or more mediation participants are a party, and legal theories and arguments.
However, if you instruct me to keep something confidential, I will keep it confidential.
My typical mediation process
Although every mediation is unique, the following are almost always my base method and procedures, absent the participants wanting to proceed in a different manner.
- I ask for position statements and any key documents you want me to review beforehand a week prior to our scheduled mediation session.
- Before we start mediation, I will have roughed out a settlement agreement form.
- For Zoom mediations, I open the rooms fifteen minutes prior to our start time and check everyone in.
- I do not have a joint opening session.
- I quickly and briefly introduce myself in each room.
- I then start in the Plaintiff’s/Claimant’s room and elicit an opening demand.
- I proceed to the other room or rooms and elicit an opening response.
- During the early exchanges that follow, I will ask factual and sometimes legal questions and share my view of each party’s strengths and weaknesses.
- Throughout the day, I will continue to carry authorized messages between the parties and share my experience.
- There is then generally the “dark period,” one in which resolution seems unlikely.
- After lunch, often between 1:00 p.m. and 2:00 p.m., the “light at the end of the tunnel” period begins.
- In those mediations where both parties are seeking money from each other, this is when one party crosses the line and for the first time offers to pay money to the other party.
- We then enter into an hour or two of the “tennis match” phase, in which offers are quickly volleyed back and forth.
- If this phase is not entered into, I generally try bracket offers to narrow the delta, or if even that does not work or no one wants to make a bracket offer, I generally will discuss making a mediator’s proposal.
- If the “tennis phase” does work to sufficiently narrow the delta, then usually we conclude with a split the delta (or close to it) phase.
- Finally, if successful, I circulate a draft settlement agreement form that I have been refining throughout the day; the attorney’s make any edits; and the parties execute a full, written settlement agreement.
Zoom versus In-Person Mediation
My default mediation is via Zoom. I will provide the link.
If all parties want an in-person mediation, then the parties will need to provide an agreed upon location and lunch for all participants to a full day mediation.
Half-day Mediations
I am not a big fan of half-day mediations. My preference is to schedule for a full day, and if the mediation is successful in four or less hours, I refund a half day’s fee to all parties.
I recognize, however, that some two-party mediations should be scheduled for a half day, commonly because the amount and/or scope in controversy is relatively small.
By scheduling a half day mediation with me, both parties and their attorneys are committing to:
- cutting to the chase quickly;
- without gamesmanship;
- wearing their “economic” hats; and
- concluding the mediation, including a signed settlement agreement if resolved, within four hours.
On this last point, we can continue a scheduled half-day mediation at a per party fee of $250 per hour; subject to my availability that same day, this may or may not be the same day.
Mediation Rates
Full day/two party: $1,900 per party
Full day/three party: $1,400 per party
Full day/four+: Pricing on a case-by-case basis
Half day/two party: $990 per party for four hours
For half-day mediations that exceed four hours, we can continue a scheduled half-day mediation at a per party fee of $250 per hour; which may or may not be the same day, subject to my availability that same day.
Defining a “party” to mediation.
Generally, I define a “party” by those represented by a particular attorney or law firm, with a common position. So, for example, a party and their insurer or surety would generally be considered one party. A developer, general contractor, and subcontractor, all represented by separate counsel, would generally be considered three parties. A general contractor and a subcontractor represented by the same attorney or law firm, that are wholly aligned, for example under a tender or a pass-through claim, would generally be one party.
Mediation Fees:
Should be provided to me at least a week in advance of our mediation session.
Payment should be made out to Paulo ADR, LLC, and can be made as follows:
Mailed or overnighted to:
Paulo ADR, LLC
5876 Elderwood Drive
Dallas TX 75230
Available Mediation Dates
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