Mediation is a process.  As a mediator, I simply attempt to facilitate a settlement between the parties by building on areas of common agreement and by challenging the parties to think critically about the dispute, the pending case if litigation has ensued, potential outcomes and the business and other risks which will naturally and inevitably result from protracted disputes and/or continued pursuit of the lawsuit.  Mediation has been with us for a very long time.  Mediation was used extensively in the United States colonies – the colonists knew that peaceful coexistence was valuable.  Lastly, other cultures value dispute resolution through mediation significantly more than litigation – in China, for example, there are nearly five million mediators and only about 145,000 lawyers.

Why has mediation become so prevalent? Litigation is an expensive process.  It is costly to the parties and participants — not only directly, in terms of the money expended on lawyers’ fees and litigation costs — but also indirectly: you, or your management team or family, must devote significant time and energy to prosecution (or defense) of the case.  In a business context, this diversion of effort from “the business” of the business is expensive and often lethal.  I have personally observed businesses ultimately winning in court but nonetheless going out of business or into bankruptcy simply as a result of the disruption and delay.  In all contexts, litigation is often emotionally draining as the parties must relive the dispute, even tedious details of it, with unrelenting frequency. The really bad thing is that what a judge (or arbitrator) or jury may do with your dispute is often uncertain: you may win, but you also may lose — or not “win” as much as you hoped for. You may battle to a draw.  Moreover, court proceedings, and their outcomes, are public.  Litigation is usually an unsatisfactory way to resolve a dispute and achieve closure to it. 

My message to counsel is plain and simple: while I do want your client to reach a settlement, I am committed to supporting the attorneys I work with to reach a common goal – a satisfied client.  I am acutely attuned to the many challenges an attorney faces in litigation, in our civil justice system and particularly in mediation.  My client is the system.  My role is to assist counsel in providing their client(s) a realistic evaluation of the alternatives possible/likely in the event settlement is not achieved.  Once armed with that assessment, together they may then make an informed decision to settle, or to not settle.  Once that has occurred, I have done my job.  I have written a short article with some Practice Pointers that might be helpful to counsel.  Also take a look at Trey Bergman’s excellent article Mediating to Win" and Ross Stoddard’s wonderful article "Top Five Negotiation Tips".

My message to the client – the end user of mediation services – is also quite simple.  In mediation, there are no losers, only winners.  If the mediation results in a settlement of the dispute, both sides save the expense, uncertainty and disruption of continued litigation and trial.  Even if the mediation fails to produce a settlement, both sides have the satisfaction of having at least tried to resolve the dispute out-of-court and have had many of the fundamental premises of their ease tested by an independent third party.  Please see my article written for clients to describe the mediation process.  I have also provided a sample mediated Settlement Agreement and an example of the typical Mediation Agreement that I normally use.


It Makes Sense . .

Parties retain me to arbitrate and mediate for them because of my experience, impartiality and thoroughness. It is my nature to determine all the facts . . .



After being shareholder and practice group leader in one of San Antonio’s major law firms, Bill Lemons formed his professional corporation in 1997 hoping to become less involved in litigation, and more involved in dispute resolution – mediation, arbitration, case evaluation and consulting. That is now all he does. He is now blessed with a full-time ADR practice. Assisted by his wife, Pam, they have set up their offices so that counsel and their clients alike can ...