PRESIDENT'S MESSAGE

By Tommy Proctor W. Thomas Proctor PC

Mediation: Promises Realized

The case in mediation involved a widow’s claims for the untimely death of her husband. The deceased was one of those men everyone described as a good man, salt of the earth. His widow was kind and gentle and heartbroken. The defendant was a well-respected individual who had rendered years of excellent, dedicated service in our community.

A lawsuit was filed and the standard written discovery exchanged between the parties. The attorneys for both sides had agreed to mediate the case before taking any additional discovery. During the general session, with the parties face-to-face across the table, attorneys for both sides presented the merits of their case without vitriol. When asked if he wished to make any comment, the defendant looked to the widow and tearfully apologized.

That afternoon, after much negotiation, the case settled. The defendant made one request as the final terms of the settlement were memorialized. He asked if he could speak with the widow to once again express his deepest condolences. The widow agreed, and with the blessing of the attorneys and the mediator, the two parties talked in the conference room. After quite some time, the plaintiff’s attorney cracked open the door to check on his client. He saw the plaintiff and the defendant hugging one another, both of them weeping. He asked for her forgiveness. She forgave him. It was a moment of healing and closure for both.

Could this case have resolved without mediation? Absolutely. It may have settled through the lawyers negotiating a compromise. If it had not settled, the case would have been resolved at trial through a jury’s verdict. It is likely that a trial would have left one side pleased with the verdict and the other side bitter and disappointed. It was the mediation process, and the environment mediation can provide, that allowed this case not only to settle, but also to provide something more to both plaintiff and defendant, beyond the mere exchange of money. I am not suggesting that all mediations encompass such deep emotion or provide such dramatic moments, but each case is uniquely important to its parties. The mediation process puts the parties at the table, where they are directly involved in determining the outcome of their case. On the day of this mediation, in common with other parties to other mediations, the defendant and the widow had control over their fates, not the lawyers, not the courts.

When we began court-annexed mediation in Harris County 18 years ago, we were hopeful about the benefits mediation could provide. In the years preceding, it was not uncommon for litigants to wait three, five or even seven years or more to get their case to trial. The courts were overwhelmed with the volume of pending cases. It is axiomatic that justice delayed is justice denied. Today’s case does not suffer such delays, I contend, due at least in part to the success of mediation.

While some still hold to fond memories of the old school lawyer-to-lawyer settlement negotiation, mediation allows the parties themselves to hear and to be heard in ways that historical case development and settlement negotiation never could. At no point in the course of litigation do the parties have as much control over the destiny of their case as they do on the day of mediation. At trial, all of the attention is on the jury or judge. At mediation, all of the attention is on the clients. They are in a position to control their own fate, rather than hand it over for others to determine. At no other phase of litigation is a client as empowered as at mediation.

Does any of this serve to diminish the value of a trial lawyer’s skill or judgment in a mediation? Absolutely not. As a mediator, I have the privilege of seeing some of the finest trial lawyers in the country as they present their client’s cases. I have witnessed dramatic reevaluations of cases take place following the presentations by counsel. All of the factors that make a great trial lawyer – knowledge of the law, total familiarity with the facts of the case, the ability to read people, and the ability to make complex issues easy to understand – translate perfectly to the mediation process.

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