T. W. PROCTOR & ASSOCIATES
ATTORNEY & MEDIATOR SERVICES

630 UVALDE ROAD
HOUSTON, TX 77015-3766

MEDIATION SERVICES

Attorney-Mediator Terrell William "Terry" Proctor, J.D. was trained as a mediator by the Dallas
based Attorney-Mediator Institute, back in 1992. Terry has been doing mediation since that time.

Terry went into doing mediation for several reasons :

#1 Some years back, mediation fees were outrageous and only affordable in the larger cases. Terry felt that mediation was new, had great potential, but needed experienced attorneys willing to do mediation for reasonable fees. Judges originally appointed all mediators and with the large fees charged, there was some taint in at least appearance, that the fees might be a way for attorneys appointed, to return the favor with political donations. That has largely resolved itself as most mediators today charge more reasonable fees and the attorneys on both sides more often pick their mediator than the Judge.

#2 In the early years of mediation, some mediators went into mediation without a great deal of experience and others were former Judges, some of whom wanted to rule at mediation rather than act as neutrals, which is what mediators should be. Terry felt that what mediation needed was attorneys who still practiced law, but had years of experience and could thereby be fair to both sides and be able to lend guidance to the parties (not the attorneys) on both sides, regarding the expense of litigation; the uncertainty of trial; the value of present settlement vs. delay; and other things which a practicing attorney on either side knew, but may not have adequately communicated to their clients.

#3 One of the main reasons, if not the main reason Terry wanted to do mediation, was the satisfaction of being able to assist in parties reaching a settlement of a case without the large expense often involved in trial and the early resolution of conflicts.

What is Mediation anyhow?

There are several ways to settle disputes.

• Have a fist fight, stabbing, shooting or such. Clearly not the way in modern society to settle differences.
• Give up and let the other side run over you. Probably not something most people would want to do.
• Discuss the matter between the parties and settle the matter yourselves. This is the best way to resolved matters probably, but somehow it doesn't happen often enough.
• Hire an attorney to make a demand or to defend against a demand. Good enough, but what does the attorney do next?
• Negotiate, before and/or after suit is filed. Hopefully this will result in settlement, but very often will not settle matters.
• Litigate. Clearly the poorest choice, because of the great expenses, long time delays before resolution and the frustration, anger and stress it often creates, on top of the financial burden on both sides.
• Arbitrate. This can be either binding or non-binding. Here an experienced arbitrator hears the case, as would a Judge, and determines from the evidence how the case should be resolved. If non-binding, then this "decision" from the Arbitrator guides both sides toward either accepting the arbitration or working it out, knowing how a neutral third party sees the case. If binding then you have had your "day in court" only "out of court". The decision in binding arbitration is BINDING which means that one side or the other can move to have that decision entered by the Judge as the Final Judgment in the case, by the agreement of the parties, in advance, to do so.

So this leaves the best alternative, if the parties themselves cannot agree, which is MEDIATION.

In Mediation, the parties themselves (if they determine to mediate before retaining an attorney) or the attorneys for the parties (if they have already obtained legal counsel) will either select a MEDIATOR or if the Court has ORDERED MEDIATION then the Court may have appointed a MEDIATOR.

So what is a MEDIATOR?

A Mediator is a "third party neutral". I compare Mediation and a Mediator with a chemical reaction using a CATALYST. A catalyst, in a chemical reaction is a chemical or other factor, which is added to other chemicals to make them react, when they would not otherwise do so themselves, but the catalyst does not itself enter into the chemical reaction.

A Mediator usually (statistics show that this is something like 85% to 95% of the time) can resolve the differences parties have and help them reach a settlement, without the Mediator being a party to the litigation or having any interest in the litigation, other than to try to help the parties settle the litigation.

How does MEDIATION usually work:

The parties and their attorneys (if counsel is involved) meet at the Mediator's Office, agreed place and at the agreed time OR at the Court-Ordered time and place. The Parties, their counsel (attorneys) and sometimes an insurance company adjuster or other parties necessary to the Mediation, sit down together around a large table. The Mediator familiarizes those who are not familiar with Mediation, as to what Mediation is and what is going to happen on that date. The Mediator may explain that in the days of yore, when the armies of two kings met for battle, that before battle, they would have a Peace Tent to the side where they would meet and try to work out differences, before the battle with all the gore, death and destruction which it would bring. Sometimes, this could resolve the conflict without the loss to both sides. This is not too unlike Mediation before or in the middle of Litigation.

Before proceeding, the Mediator will have the parties and their attorney sign a form showing that they have agreed upon the Mediator to be their Mediator in this session. Next the Mediator will provide (if not already provided) the Rules of Mediation (click here to see a copy of the Rules of Mediation)

Usually the Mediator will go over these Rules of Mediation and especially explain the differences between Privilege and Confidentiality.

The Mediator will explain that what goes on at Mediation is privileged. This means that no Party nor Attorney may refer specifically to anything said or provided at Mediation nor the negotiations nor may they subpoena the Mediator to give any testimony about Mediation. It is a private settlement effort and when it ends, if unsuccessful, then it is as if it had not happened. All the Mediator can report by law, to the Court, is that the matter either settled at Mediation or it did not.

Next the Mediator will explain what confidentiality means. It means that the Mediator will keep confidential the things which the Mediator is told by each party EXCEPT for those things which a party expresses to the Mediator that the party wants the Mediator to tell the other side. While the Mediation is privileged as to the things stated at Mediation, offers and demands made and reciting anything said by a party, attorney or Mediator at Mediation, Mediation does not prevent either party from using what the other side reveals at Mediation, to then go forward and again "discover" that same information or facts again and use them at trial. For that reason the Mediator should warn the parties that if they want something to remain confidential, they must be wary of what they say at Mediation, as it is not confidential, if they reveal it and the other party later is able to arrive at the same information, armed with that knowledge gained at Mediation.

Next the Mediator will allow each side, usually starting with the Plaintiff to state their side of the case, both to familiarize the Mediator with their purported facts and also to impress the other side with the strength of their side of the case. Then the other side, i.e. usually the Defendant, will present their side of the case. If there are more than two parties, then the various parties each have their opportunity to express their side. A Mediator will tell all parties and attorneys before they start, that they may say whatever and as much as they like, HOWEVER, the more incendiary the comments and allegations, the less successful the Mediation may be, because it may produce more heat than light and therefore limit the changes of accomplishing what the parties are there to do, i.e. settle the case. It is seldom that the parties, with the help of their respective attorneys, are unable to see the wisdom in stating things factually instead of emotionally.

After each side has had their chance to state their facts and opinions and perhaps to go back and forth a time or two, then the Mediator will separate the parties into separate rooms for each. At some time before the separation of the parties, the Mediator has probably requested that the last demand and last offer be stated and these can be mentioned during the open session when the parties face each other, but the offers and demands are usually not discussed during the open session, only stated so that each party and their attorneys knows where the other party is starting at the Mediation session.

Once placed in separate rooms, the Mediator will visit briefly with each party and their attorney for a very short time, before starting with one party and their attorney or the other. Possibly with the party who has the more difficult position to understand, or the party who has not made a demand or offer. Some starting position must be commenced.

Thereafter the Mediator visits with each party and their attorney, then goes to the other and so on. The Mediator will go back and forth as often as necessary to attempt to resolve matters for either a half day or a full day (or sometimes more) as is scheduled for mediation.

So how does a Mediator assist in resolving cases, by just letting the parties talk to each other and then visiting back and forth?

Mediators received at least 40 hours of training, including sitting in on at least 3 mediations by experienced mediators, before they are acknowledged as trained Mediators. Thereafter, Mediators may volunteer to do FREE Mediations for such services as the Dispute Resolution Center in Houston (which offers free mediation service to smaller cases where the amount in dispute is limited and other criteria). Mediators, needles to say, like many professions, get better usually the longer they Mediate cases. Some Mediators prefer to Mediate cases in only certain areas, whereas other Mediators may offer to Mediate in a wide range of cases.

Just as civil court judges have to determine the law and facts in a very wide range of subjects, many of which they may have no personal knowledge, good Mediators do not need to have great knowledge on the area being Mediated, but rather be sharp enough to pick up on the facts and weaknesses of each party's side of the case, as the Mediation goes forward.

If there is one thing which a good Mediator uses, it is fear. This is no secret and the Mediator may tell the parties and attorneys from the start that is what the Mediator will use in part.

No party nor side of a case ever has a completely winnable side of the case and no party has a completely lost side of a case. With juries and with Judges, there is always the possibility of losing your case. The Mediator must take information from each side, as to what they see as the weaknesses of the other side AND attempt to learn what each party believes are the weaknesses in their own case. A good Mediator will play Devil's advocate from time to time, and tell the party whom the Mediator is using this tactic that he is doing so. In short, a Mediator must be open and not play tricks on either side, but let all know that the Mediator is there to exploit each side's weaknesses and therein lies the potential of settlement.

If a party wishes to keep something strong which they hope to use against the other side at trial, they must weigh the benefit and liabilities of going ahead and using fact or evidence at Mediation. If Mediation does not succeed, then the surprise of use is probably lost. However, if that fact or evidence might cause the case to settle at Mediation, then the failure to use it may cause the party with such fact or evidence to have to spend more money for litigation and still run the risk of losing the case. So confidentiality at Mediation is a two-edged sword of whether to reveal or not. A skillful Mediator may be able to hint, with the authority of the party with the fact or evidence, to the other side that there is something they haven't considered or don't know about, without revealing what it is. However, a cardinal rule for a Mediator, who wants to maintain credibility, is that a Mediator must never bluff or appear to know things which the Mediator does not really know.

The bottom line is that a Mediator must sell the fact that the Mediator is neutral and appears to each party just as the Mediator does to the other side, usually taking a someone negative view of each party's case, so that each party has reason to try to move toward settlement of the case, and getting closer and closer on demands and offers.

Having mediated many cases and being an attorney who has taken clients into Mediation with other Mediators, I have learned that too few Mediators take the time, once settlement is reached, to get down a good solid written agreement. I make it a point to make the parties and attorneys wait for an additional period, while I type out ALL of the terms of the agreement, including the manner of resolving any unresolved matters.

With Mediation reaching a VERY HIGH PERCENTAGE of resolution of cases, it makes sense to mediate virtually every case, as early as possible. The alternative is to incur a lot of expense on both sides, which makes the loser have to pay more and the winner receive less. AND that makes no sense at all. So consider Mediation with a good Mediator when you have a dispute which you cannot resolve by talking or negotiation.