A happier moment this week was speaking to Professor DeLeith Duke Gossett’s students at Texas Tech Law School about the mediation process.
I didn’t prepare a written presentation, but instead answered Prof. Gossett’s questions about mediation. We had exchanged some lengthy emails in advance on the sorts of things I thought were important to stress, including identifying the ground rules for particular mediation so that you are clear what the confidentiality provisions are and what statements the mediator wants ahead of time.
The conventional wisdom on opening statements has changed since the professor was a law clerk for judges in Tyler back when I actually was a young lawyer, and I explained the pros and cons of opening statements, which are basically the same as the pros and cons of biting a shark on the ass. I also went over the process of trading offers, “midpoints”, “drop dead” offers, and mediator proposals.
I think we spent most of the time, however, talking about the mediator’s role in the mediation – the importance of soliciting the mediator’s input when considering particular offers or responses, as well as using the mediator to help get recalcitrant clients to understand the realities of the case. (Not my clients of course, who would never be unreasonable). Good mediators don’t just play ping-pong all day – they use their superior knowledge of the parties’ positions to identify how the parties can reach a successful resolution of the case. Which, of course, means everyone is equally unhappy, but not as unhappy and poor than they’d be after an unsuccessful trial outcome.
I also talked about the need to explain the mediation process to clients of that they understand that it is not the same thing as a trial, nor is a settlement the same thing as “winning.” I also explained that the need to walk the client through the process is even more important where a client might be uniquely unfamiliar with the process, for example where a client is from outside the US and may not even fully understand the US litigation process to start with. A client may not know to what extent the process is confidential, so you need to explain that, as well as the requirement that parties mediate “in good faith” and what that means. It’s very easy for parties to not be prepared for mediation, and to not understand what it is (and isn’t).
I particularly enjoyed the questions from the students, who were interested in – what else – patent litigation, as well as other topics. In a week that didn’t have much else go right (okay, we did get Dak Prescott signed, but other than that) it was a little sparkling hour that I really, really appreciated.
Somebody please call and ask me to talk to your Lions club about motions in limine, okay? I’m best right after another speaker on insomnia because I will knock that little problem right out and leave you rested and refreshed for your afternoon.