I have been involved in mediations since I started practicing law over 33 years ago as corporate counsel and as first chair litigation counsel. Needless to say, I have been involved in good mediations with good mediators and bad mediations with bad mediators.
There are many reasons to mediate as an alternative to litigation. A simple search of the Internet will produce thousands of scholarly dissertations expounding on the virtues of mediation. I can summarize in one word the main reason to mediate rather than litigate: money. It is exponentially more expensive to engage in protracted litigation rather than to mediate to a satisfactory resolution.
One of my foremost criticisms of “traditional” mediations and mediators is that most of the mediators with whom I have been involved generally equate mediation as a 50/50 compromise as an acceptable way to resolve disagreements.
This conclusion prompted me to provide an alternative to “traditional” mediation by developing and employing a common sense approach to mediation tailored to specific parties and their particular circumstances.
I understand that the word “mediate” is derived from the Latin word “medius,” or “in the middle.” However, I disagree that the King Solomon approach of splitting the baby is effective, or appropriate, in all cases. The allocation of responsibility may not always be 50/50. I have adopted this basic premise in my approach to mediation.
I remember a story told to me many years ago by an experienced trial lawyer about an ancient king preparing to go into a tough battle to claim land which he believed belonged to him and his kingdom. Many lives would be lost in a full frontal assault against the enemy’s well protected fortress. One of his generals suggested rather than to shed blood of many warriors the king should instead consider a lengthy siege during which the farmlands surrounding the fortress would be scorched then salted to kill crops and prevent future crops from growing. The king looked at the general and said, “Why would we destroy the lands that we are trying to reclaim for the benefit of the kingdom? We may win the battle but ultimately lose the war!”
The point of the story is that there is always a common sense solution to every challenge. Total scorched earth destruction or the expenditure of inordinate sums for legal fees is not a common sense approach to dispute resolution.
Any dispute can be mediated, whether there is litigation pending or not. Oil and gas lease issues can be mediated. Equitable distribution issues in a divorce matter can be mediated. Parking on a street in front of someone’s house can be mediated. Terms of a discharge from employment can be mediated. Distribution of assets of a partnership can be mediated. The list never ends.
I want to expand a bit on the use of mediation in oil and gas disputes. Many modern leases, right of way agreements, surface use agreements and other agreements specific to the oil and gas industry contain an alternative dispute resolution requirement clause. The ADR may be in the form of mediation, but more likely than not will be binding arbitration. I have experienced first hand as a litigant in an oil and gas dispute that there are lawyers holding themselves out to be experts in oil and gas issues when they are not. My particular mediation failed for the sole purpose that the mediator we chose did not understand the intricacies of oil and gas issues even though he claimed he did.
My substantial experience in the oil and gas industry from the perspectives of both landowners and producers has provided me with the ability to understand, explain, and resolve most disputes. Many times I have found that just detailing the unique factual situation involved and applying the specific facts to the language of the lease will result in mutual understanding leading to a common sense resolution.
My approach to mediation will be guided by the following five principles:
Number One: There is a dispute to resolve.
I realize there is a dispute. Otherwise there would be no reason to engage my services as a mediator. There is probably a lawsuit involved that has not been much fun for either side.
I understand the dynamics of litigation and the interaction between parties and counsel. My goal is to get the parties together in an atmosphere of mutual respect and professionalism to resolve the dispute and move on with their businesses and lives. Personal attacks and petty affronts have no place in a professional mediation, and usually don’t help much anyway. Our focus will remain on the objective of reaching a consensual, common sense, resolution of the dispute.
Number Two: Your dispute is unique.
A number of years ago I was involved in a mandatory mediation in Texas that was required by the local court rules in all pending litigation cases. The entire mediation consisted of the mediator talking about his prior cases that he successfully resolved. He could care less about my case. He must have thought that his greatness would automatically affect whatever case that was before him at any given moment resulting in resolution.
It didn’t work.
My prior cases have nothing to do with your dispute. My past successes will not resolve your dispute. More important, I will not waste your time and money talking about myself when the reason you are in mediation is to resolve your dispute.
The particular dispute which I am mediating is unique to the parties involved in the dispute. The facts are unique. The parties are unique. And the positions of the parties relative to reaching a settlement are unique. Nothing I may have done in the past will have any impact on the ultimate resolution of your dispute.
Number Three: I will come to you.
I am a travelling mediator. I will come to you at a location of your choosing where you are comfortable. This can be at the offices of one of the parties or counsel, or even a meeting room at a hotel.
If the parties cannot agree on a location, which happens sometimes, then I will choose the location and assess the cost equally between the parties.
Number Four: My fees are reasonable.
Generally, my fee for a one day mediation is $2,000.00, whether the mediation lasts for the minimum of four hours or extends to 14 hours. There may be a small additional charge for reviewing any submitted documents at the rate of $300.00 per hour. There will be no additional charge for reviewing documents in employment litigation cases. The fee will be allocated between the parties in equal shares.
I am always willing to discuss my fees depending on the particular circumstances of your case.
Number Five: Common sense will prevail.
There are volumes written on the “proper” mediation process. There are protocols and methods that have names and which are discussed and debated in scholarly journals among academics and intellectuals. I am neither.
My approach to mediation is not to create the impression that I am smarter than the participants, primarily because I may not be. Rather, I have been blessed with an inordinate amount of common sense and level headedness that, when employed, generally helps bring parties together to reach a common ground.
So many times all that is needed is for a party to explain the dispute to another to realize that the dispute suddenly seems so trivial in the overall scheme of things.
I understand many disputes become personal in nature and that litigation morphs into a matter of principle. This is not the way to resolve disputes and the only people benefitting from this approach to problem solving are the attorneys.
Most important, because I am using a common sense approach when dealing with the parties and their dispute, it does not matter if I have done one or one thousand mediations: The approach is always the same and does not vary.
The best way for you to determine whether I will be a suitable mediator in your case is to give me a call so that we can talk.