Preparation of the trial lawyer for mediation.

AuthorGilbert, LaCrisia

The entire legal profession--lawyers, judges, law teachers--has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be 'healers of conflict.' For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle & blood ... Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. (1)


Experienced litigators know the courthouse and law students will soon learn. But, even for the most savvy trial lawyer, the mediation process is a different and possibly intimidating universe. Alternative dispute resolution is an art to be mastered, not a body of rules to be learned. There are, of course, both court rules requiring ADR and arbitration statues. But knowing the rules and statutes alone will not enable lawyers to use ADR successfully for their clients. Few would argue that mediation is an art. Sometimes it seems more like magic, when a "no-holds-barred battle turns into a concrete agreement that resolves the dispute. But there is no systematic theory that successfully explains when and why mediation works.

Mediation has become an integral part of our civil justice system. Almost every state in the nation has enacted some kind of Alternative Dispute Resolution (hereinafter ADR) statute, and mediation is clearly the most favored ADR activity. The popularity of mediation has been enhanced by several congressional enactments, most recently the Alternative Dispute Resolution Act (2) in October of 1998. This statute directs each federal district to embrace ADR and has facilitated the increased use of mediation nationwide. (3)

Prior to the enactment of this federal statute, the Texas Legislature enacted the Texas ADR statute (4) in 1987. This statute, in addition to encouraging early settlement of lawsuits, empowers judges of all courts in Texas to require parties in litigation to participate in an ADR procedure prior to trial. Such processes include non-binding arbitration, moderated settlement conferences, summary jury trials, and mediation. Mediation has proven to be so successful that it has emerged in Texas and throughout the nation as the ADR technique of choice.

Mediation is so popular in Texas that it is virtually impossible to have your case set for trial in any of the major urban areas without having mediated the case first. Some counties have even enacted Local Rules and Scheduling Orders mandating the use of mediation in all civil cases. Texas also has ADR coordinators to help administer the mediation programs, with Dallas County and Bexar County hiring full-time ADR coordinators to facilitate the programs in their respective counties. Likewise, the U.S. District Courts and the U.S. Court of Appeals have all embraced mediation and encourage its use.

The primary goal of this Article is to assist trial lawyers in better understanding the mediation process so that they may represent their clients more ably in the mediation setting. (5) The other goal is to advance the proper use of ADR, not as a replacement for our trial system, but as a meaningful companion to it.


One important fact for all lawyers to remember is that almost all lawsuits settle and never go to trial. Nationally, roughly 95% of all civil lawsuits settle. This is a universally recognized statistic accepted by most trial lawyers and judges throughout the nation. In Texas, Supreme Court statistics reflect that only 3% of all civil cases are actually tried to verdict. The implications of this statistic are far-reaching. Among other things, it means that no matter how great a trial lawyer may be, no matter how strong his or her gladiator instincts...

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