Recently I received notice of my potential appointment to an arbitration panel, by an organization that facilitates such things. Candidates to serve as an arbitrator are required by law and various ethics codes to disclose all kinds of things that might create a conflict, or even the appearance of a conflict. Prior dealings with one of the lawyers, previous experience with the subject matter of the dispute, and so forth are all things that should be disclosed. I try to be meticulous. Attend church with one of the lawyers, even if they sit several pews away? Use to be a “soccer dad” years ago when my daughter and the daughter of one of the lawyers were on the same club team and we watched many a game on the freezing, or rainy, or blistering hot sidelines? And I have the weird circumstance of having run for Congress in 2006 when I raised about a half million dollars from guess who – lawyers and law firms in Dallas!
Anyway I responded to the notice with my usual detailed disclosures. The case administrator emailed me back and said, “Will, if I forward your disclosures to all counsel there is a decent chance you will be struck from the panel”. And my response was, “I know, that’s the point of the disclosures!”
I get struck sometimes. Thankfully, not often. But I don’t want to be an arbitrator in any matter where there is something in the background, something that might cause one of the parties to question my ability to remain neutral. There has never been a motion to recuse me that had to be heard, because I always simply withdraw. What I have learned over the years is that more often than not it seems that my disclosures are so thorough that whoever is reading them thinks, “if he’s going to be this transparent we can probably trust him”! Honesty, for all kinds of reasons, is the best policy!
There are few things in this world that we can say are really certain. Let’s review: 1) The Rangers are a really, really bad baseball team. Whenever you have a position player, here second base, who could not make the roster of another team in MLB, and you just keep running him out there year after year after year, you have a problem. 2) The Cowboys will never win another Super Bowl until Jerry Jones has passed from this earth. And finally 3) The college football season, only a few days away, will not last more than three weeks.
On a more professional note, mediating in the time of covid continues to surprise. It’s working. There are things that you, as an advocate, can do to take advantage of the Zoom technology. Learn to use the share screen and chat features. A negotiation strategy that is focused is more essential than before. And the use of the joint session may now be more reliable now – something about the reduced tension from not all being in the same room. I am not of the view that virtual mediations will ever be as effective as in-person mediations, but it can work.
Arbitration, in the commercial context and in the consumer / employment context, has become increasingly controversial in recent years. I am an experienced arbitrator. I have taught arbitration at SMU and Pepperdine for years. I am here to tell you that you can make arbitration work for you and your client. It’s up to you. It’s up to the rules you adopt. And it’s up to the arbitrator(s) you select.
For years I have been making CLE presentations where I wag my finger at you lawyers and say, “shame, shame on you, for not sending me appropriate pre-mediation submissions”, or otherwise not helping me prepare. A few weeks ago I had an epiphany. I need to start being more aggressive about my desire to be prepared. I need to contact you, not sit back and wait for you to contact me.
It’s working. In the past several weeks I have been diligent in trying to set up calls with lawyers in advance of mediations. Written submissions, pleadings, etc. are still welcomed and encouraged. But if you confirm a mediation with me, expect to receive a phone call from me. A chance to have a 20 minute conversation over the phone with counsel is always helpful. I’m better prepared. You will be better prepared. This more aggressive approach is producing more settlements.
What Kind of Cases Do I Mediate?
Yours. I don’t mediate family law matters, but I have a huge amount of respect for advocates and neutrals who practice in this area. In mediating well over 3,000 cases in the past 20 years, I have a substantial amount of experience in employment, construction, IP, injury, civil rights, contracts . . . I could go on an on and it would be a fair representation of my experience.
Every mediation deserves my preparation (and yours), and my experience.
Have you ever been to a mediation where no offers or demands were exchanged . . . and the case settled? Have you ever engaged a mediator – when the court has ordered mediation but it is months away – to serve as a “neutral case manager”, facilitating scheduling and discovery issues along the way. When is the last time you engaged in a “co-mediation”. Never?
These and many other exciting “best practices” were the subject of discussion at the recent annual training meeting of the National Academy of Distinguished Neutrals (NADN) in Denver. Imagine a room full of 120 of the most experienced neutrals in the country, each of whom is part of the organization by invitation, discussing trends, tips and tricks for 2 ½ days. It was a unique opportunity.
A good friend called me a couple of weeks ago and said that he had recently been in a mediation in San Antonio and towards the afternoon the subject of the mediator doing a proposal to help break an impasse came up. And the mediator said, “If I can get the permission of both sides I would be happy to try a proposal”. So my friend says, “Will, what is he talking about? You don’t need both sides to give you permission, do you?” I may not have given this much thought until last week an experienced lawyer participating in a mediation as an observer asked me the very same question. So lucky you, I will put an end to this issue right now!
Short answer: no. A mediator does not need the permission of either party to do a proposal. I often will let the lawyers know I am thinking about one, and for fun may mention that I intend to try a proposal whether anyone wants me to or not! In fact, I may give one a try in the face of an objection to my doing so! I mean, how is anyone going to stop me? And once it’s sent, I don’t think there is any ambiguity as to whether a lawyer has a duty to share the proposal with the client.
Here is where the confusion may rest: some view the “mediator’s proposal” as a “recommendation” based on the mediator’s “neutral evaluation”. I do not. My proposals do not use the words “recommendation” or “evaluation”. My proposals are just terms that I feel might draw two “yes” responses. That’s it. But if someone viewed the proposal as a recommendation or evaluation, then I agree, the mediator absolutely would need the blessing of both sides to offer it up.
Even though I am an evaluative mediator, I take very seriously my obligation to be neutral in all things. Advocating for a position, making a recommendation, would not be a neutral event, in my opinion.
Don’t get me wrong. I am pleased and proud, once again, to have been included among “The Best Lawyers in Dallas” in the current issue of D Magazine. Congratulations to my mediating colleagues who also made the list, especially to my friends Mary Burdin and Chris Nolland. As far as I know, Mary, Chris and I are the only neutrals who have made the list every year since D Magazine began publishing these lists in 2003.
But again, let’s not get carried away. D Magazine would do everyone a service if they would take a break from this annual issue. The methodology is more suspect than ever (mediators vote only for other mediators — makes no sense). I’m just not sure the public is being well served.
Something I’m Truly Proud Of
What really makes me happy is that in April I performed twelve mediations. Nine resulted in settlement agreements, and in one a mediator’s proposal is still outstanding. In additiion, I participated in a creative arbitration panel “focus group”, went up on another roof in connection with performing my role of umpire in an insurance appraisal, and finished up my teaching schedule for my ADR course at the Dedman School of Law at SMU (I’ve been teaching that course since 1999!). Because I teach dispute resolution, I am always eager to engage in processes other than mediation.
Which reminds me. Whatever happened to Summary Jury Trials? I have some thoughts, but I’ll save them for next month.
Arbitration is under attack. Whether we are talking about the evolution of employment and consumer arbitration, imposed on the unknowing and unwilling through pre-dispute contracts of adhesion, or “business to business” arbitration a/k/a “The New Litigation”, controversy abounds. For years our dysfunctional and overcrowded civil justice system seemed like no place to be for employers, banks, insurance companies and product manufacturers, and so arbitration rose in popularity as a solution. But then two things happened: tort reform made courts friendlier, and it turned out that outcomes in arbitration were sometimes not as expected, leaving traditional defendants with no right of appeal.
But a recent Texas Supreme Court decision in Fredericksburg Care Company v. Perez shines a light on what a remarkable mess arbitration has become. The decision itself is unremarkable and, in my view, correctly decided. The Court determined that a feature of the Texas Medical Liability Act, part of our tort reform in 2003, which required that to be valid an arbitration clause pertaining to a health care liability claim must be in bold, 10-point type, and signed by the patient’s attorney, was unenforceable. Why? Pre-empted by the Federal Arbitration Act. The pre-emption doctrine means that states can’t fiddle with arbitration laws. Mostly. So the parties in Fredericksburg Care are headed for arbitration, even though the arbitration clause was not in bold, 10-point type, etc.
We’re Getting to the Funny Part
Amicus briefs are being submitted in support of the patient’s Motion for Rehearing. Guess which advocacy groups want to reverse the Court’s ruling? The Texas Association of Defense Counsel? ABOTA? The Texas Trial Lawyers? YES!!!!!! ALL SIDES AGREE THE PARTIES SHOULD NOT BE OBLIGATED TO ARBITRATE!!!!!
It’s as if no one knows what to think anymore about arbitration. Confusion and controversy abound. The solution to this mess? Careful, careful attention should be given to the arbitration clause itself. One size does not fit all. But a “cookie cutter” approach too often prevails.
In a recent mediation the parties and their counsel worked diligently toward resolution all day. Back and forth. Back and forth. Finally, an agreement. Counsel are in my office and we are word-processing something to memorialize the settlement. Drafts are generated. Approvals obtained. Voila, the printer generates the “final” version, and one of the lawyers runs off to obtain his client’s signature. Only to return and report that his client has left. Without his counsel’s knowledge or permission, and certainly without mine.
What would you do as counsel for this client? As counsel for the opposing party who understood that we had a “deal”? What would you do as the mediator? The case is pending in federal court, and as we all know, those federal judges keep score! Let me hear from you. Your opinions are at least as valuable as mine.
Several months ago my monthly email highlighted the use of video teleconference and other technologies in mediation. My position with regard to mediations conducted without the physical presence of all parties remains skeptical, but a recent experience has nudged me a bit.
Video technology has improved and is improving rapidly. I recently conducted a mediation at a “tall building” firm so that the client rep for one party could participate from Boston through the use of the firm’s video teleconference facilities. There he was on a large HD screen on the wall at one end of a conference table. Whenever I walked in the room, there he was, just sitting and waiting. We didn’t have to repeatedly dial him in, only to find that he had disappeared, etc. After awhile it began to feel like he was actually, physically present. I’m not ready to declare this practice acceptable, but I was impressed.