Creative Use of Mediators 

by Thomas Noble
Attorney/CFP/Mediator

Presented to the Dallas Bar Association
Sports & Entertainment Law Section

October 29, 1999

Creative Use of Mediators

Introduction

"In El Salvador they declared a cease-fire after ten years.

Why didn’t they think of that at the beginning?" George Carlin

Mediation has deluged the legal system. Judges formerly devoted to the tried and true adversarial methods of resolving civil disputes now recognize the wisdom of ordering people to sit down and talk before consuming valuable court time. They understand that people can avoid thousands of trials, and their attendant expense, if litigants simply spend a day with a mediator. Macho trial lawyers now regularly place calls to mediators and voluntarily schedule mediation in attempt of getting rid of uneconomical cases or just because it is the "right thing to do".

Mediation has arrived. And, although its successes are undeniable, I question whether lawyers really understand the process or how to best use mediation services. The purpose of this paper is to explore that topic, to persuade you that the "current system" underutilizes mediators to a substantial degree, and to offer some general suggestions for how and when to best use a mediator.

The Current Mediation System

We may not think of mediation as a "system", but if a system is a "method or set of procedures for achieving something", certainly court-annexed mediation has evolved from haphazard experimentation to a system. Given a general outline by the Texas Legislature, practicing trial lawyers have molded the mediation system to their liking. Although local usage varies from one locale to another, in Texas, especially North Texas, trial lawyers have worn a recognizable groove into the current civil justice system by how they use, and do not use, mediators.

The current mediation system is one in which mediation is used almost exclusively to resolve lawsuits. Pre-litigation mediation occurs haphazardly in employment disputes, divorce cases, and various other disputes, but the only area of our society in which we have institutionalized mediation is litigation. Litigators now predictably schedule mediation at some point during a lawsuit. More often than not, they delay mediation until after they have "completed discovery"; that often means months after a plaintiff has filed a petition and after the litigator has spent thousands of dollars of time and/or money on "completing discovery"; and, again, more often than not, that means a few weeks before trial.

And so goes the groove: a lawyer files a petition, a defendant files an answer, the lawyers spend months trying to intimidate each other and, ultimately, after they have ferreted out a mound of minutiae, and their clients have spent a lot more than they ever expected, after at least one cancellation for good measure, parties, lawyers, accountants all appear at a mediator’s office, and the mediator magically facilitates a settlement at 5:00 p.m. after exactly eight hours of mediation. The parties pay the mediator and breathe a collective sigh of relief at not having to spend further significant sums on the cost of a jury trial.

That is the current system. Everyone is happy with it. After all, in the "old days", a "real lawyer" told you to kiss his backside and he showed up at the courthouse with a samurai’s determination. Negotiations were reserved for the weak. "Never make the first offer" was the rule of the day. I remember my father, who was not a lawyer, but who was a damned good poker player in his day, telling me to never settle a case unless you settled it "on the courthouse steps". Of course, having a son for a litigator was not without benefits. But, for generations, lawyers routinely refused to broach the subject of settlement with or without the blessing of informed consent from their clients. Those days are gone. So, what is the problem? Isn’t the old legal system much improved by the current mediation system? Yes, but LAWYERS STILL DON’T GET IT!

Reforming the Current System

Lawyers use mediators as a last resort when they should be using them as a first resort. The purpose of mediation is to resolve disputes. Ask any mediator, and he or she will tell you that it is exponentially easier to resolve a dispute before parties become too invested in their positions, both financially and emotionally, before they have built up the proverbial head-of-steam.

When we get sick, we go to a doctor. That is the "current system" of health care. If we re-conceived mediation in similar manner and saw a dispute as an illness and a mediator as a doctor, we would be taking better advantage of mediation services. For that matter, to carry the analogy a step further, where we see our family physician for annual check-ups and preventative measures, we could and should use mediation prophylactically .

In the universe of sports and entertainment law, that may mean when the parties are negotiating their original agreement. How many hard feelings come out of that original transaction? How often is that based upon what one of the parties said or some unintended inflection during negotiations? How many post-contract disputes could be avoided if the parties employed a mediator to buffer their emotions and reframe their positions?

Attached is a sample mediation clause, which may be inserted or appended to any contract.

Critics will surely say that there is no reason to employ a mediator at the outset of a contract. And, if all parties are equally satisfied with the deal (the proverbial win-win agreement), or if one of the parties has so little bargaining power that "negotiating" is a euphemism, I would agree. But, as soon as circumstances change, as soon as the young actor has a hit, or the rookie cornerback makes a few interceptions, he will want a new contract and, suddenly, negotiations will take on more serious tones. Musicians leave record companies who fleeced them on early recordings; athletes leave teams where they have enjoyed great success for low wages. An "annual checkup" with a mediator can prevent resentments and unresolved issues from festering.

Managers and coaches could also use mediators to considerable advantage. Brian Epstein may have been a natural mediator, but after his death, The Beatles needed a mediator. If I believe the current press, Jimmy Johnson, current head coach of the Miami Dolphins, could use a mediator for his problems with star quarterback, Dan Marino. Fleetwood Mac, The Temptations, Martin & Lewis – examples abound of entertainers who split up because they let petty disputes go too far. Mediators can prevent bands and teams from breaking up, or under-performing, because of petty disputes and mitigate the unavoidable divorces.

If there is any value in (a) improving the inception of business relationships; (b) preventing and resolving disputes between "labor and management" along the way; or (c) preventing and resolving disputes between team members, band members, cast members, or the like, people in the sports and entertainment business will begin employing mediators to assist them. Lawyers who work in this field can perform a valuable service for their clients by making this recommendation and recommending mediators to assist their clients.

Appendix

Mediation Provisions

The parties agree that disputes concerning this contract should be avoided, if possible. If disputes arise, the parties intend to employ the services of a mediator as soon as possible to facilitate the resolution of such dispute(s), as follows:

1. If a party intends to invoke this mediation provision ("the Requesting Party") he or she shall notify the other party ("the Responding Party") in writing, by certified and regular mail, of his or her desire to convene mediation ("the Mediation Notice").
2. The Mediation Notice shall state the date of its mailing; the names, addresses, and telephone numbers of at least 3 prospective mediators; and the reasons why mediation is requested.
3. The Responding Party must respond in writing within ______ days after the date of the Mediation Notice indicating (1) that he or she agrees to mediate and (2) his or her choice of one of the proposed mediators.
4. Within _______ days after the receipt of such response, the Requesting Party shall notify the Responding Party in writing of the date, time and location of the mediation which must begin within _______ days after the Mediation Notice.
5. In the event that the Responding Party fails to timely respond, the Requesting Party may initiate arbitration through the American Arbitration Association.
6. The parties shall participate in good faith in any mediation process until the mediator determines that no further progress can be made in resolving the disputed issues.
7. The Mediator's fees will be paid by mutual agreement. If no agreement is reached concerning this issue, each party will pay one-half of the mediator's fees; provided that such payment will not be construed as waiver to request that the arbitrator(s) award costs in any just manner.