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Mediation: An Alternate Dispute Resolution Approach

Dallas trial lawyer Michael Pezzulli strongly encourages mediation when a case is at a stage where mediation could help resolve the dispute, short of going to trial.

The option to reach a legal agreement outside of court through mediation became official in Texas with the 1987 passage of the Alternate Dispute Resolution Act1. Mediation - also called arbitration - begins in a family law matter, for example, when each party hires a lawyer to assist them with preparing for mediation. After each party completes the process of disclosing all assets, obtaining appraisals, and the documents are inventoried, a date for mediation is selected. The two parties and their attorneys meet in a neutral setting, and an independent mediator works hard to facilitate an agreement.

It is important to understand that the mediator’s job is to effect a settlement, so he will be friendly to both sides and work to gain everyone’s trust. The mediator’s role is to lower the expectations of the party seeking money, and to raise the concerns of the party not wanting to pay too much. If the mediator can reduce expectations of the party seeking to get paid, and raise the concerns of the party in the position of paying, the gap between those numbers may become so close that the case can reach a settlement. It takes great skill and a willingness to be creative in brokering a settlement. If mediation works, it can be a good day for everyone. If mediation does not work, you are no worse off than before you started mediation.

Before you walk into a mediation, keep this in mind: the mark of a good settlement is when everyone is equally dissatisfied with the outcome to some degree, but the final settlement is close enough to what you sought that you would be making a mistake to not take the deal.

Almost every lawsuit brought before a Texas court will be ordered to attempt settlement through mediation before going to trial. Mediation is not right for every case, however. In a recent medical malpractice case handled by Michael Pezzulli, opposing counsel offered Pezzulli’s client a few thousand dollars to compensate her for a botched cranial surgery that left her with permanent brain damage. Pezzulli’s client declined the settlement and pressed on to a jury trial. In this case, the client’s best interest was far better served when Pezzulli won a $1.8 million jury award - a number 180 times higher than the settlement offer. Sometimes, you have to know when to settle and when to go to trial.

For many, mediation can deliver a quick resolution with minimal expense. With an experienced attorney to guide you through the process, mediation can have many advantages.

Mediation Can Settle Cases Fast

Mediation can settle a dispute to your satisfaction in just hours, or a single day. The mediation is arranged for any date that is convenient for the two parties. Since court calendars are often booked months or even years ahead, mediation can often bring closure to a civil dispute much sooner than if the case had to be tried at the courthouse.

Mediation Can Cost Less Than Suing in Court

Clients who want to preserve as much of their financial, business, or personal assets as possible with a mediated settlement can minimize the sizable attorney fees and court costs that can be incurred with traditional litigation. With mediation, business and family relationships are largely protected from the emotional damage and strain of drawn-out court proceedings. However, any person going to mediation must understand that just because mediation is quick and perhaps less costly in out-of-pocket expenses, that does not mean mediation is a good deal. You must rely on your attorney and your common sense to guide you to an intelligent resolution of your case. Sometimes, going to trial may be the only rational decision you can make.

Mediation Protects Privacy

Court proceedings create public records. Mediation delivers a legally binding settlement with no requirement to file details of the agreement in court. Private settlement through mediation is often a priority for many business and community leaders, public figures, entertainers and athletes, clients with significant net worth, and anyone who simply wishes to keep civil disputes out of the public spotlight.

More Cases Settle Through Mediation Than in Court

Mediation has been shown to have an overall settlement rate of 83%2 which is much higher than the national courtroom settlement rate of 60%.3 When both parties come to the table in good faith, willing to disclose every asset for equal distribution in a family matter, mediation works well.

However, mediation is not right for everyone. As Pezzulli often says, if people always did what they were supposed to do, there would be no need for lawyers. When one party fails to disclose an asset, the other walks away with a smaller percentage of the estate than they were entitled to. The deep expertise that comes from handling cases with traditional litigation, and through alternative dispute resolution methods, can be invaluable in mediating cases. Pezzulli is highly skilled at scouring thousands of document pages to uncover hidden assets not disclosed on required asset statements. Pezzulli prepares every mediation agreement with meticulous language designed to recover compensation for his client if a hidden asset comes to light after the agreement is finalized.

Dallas trial lawyer Michael Pezzulli, who is also a qualified mediator in the state of Texas, conducts in-office mediations in compliance with the guidelines and code of ethics established by the Texas Mediator Credentialing Association.

1. Chapter 154 of the Texas Civil Practices and Remedies Code

2. Numbers from the Dallas Mediation Project. Statistics on Mediation in the 101st District Court as of June 12, 1992 as condensed in Court Annexed Mediation (1993, State Bar of Texas MCLE). Total number of cases mediated 981, total settled 818 (83%), settlement rate through private mediators, 85%.

3. Rumors about settlement

4. The truths behind mediation

What Our Clients are Saying
"My case was complicated. My opponents were very high profile individuals with the ability to hire the best attorneys to defend their egregious actions. Michael Pezzulli did not back down, and my verdict was very favorable. He is a strategist with amazing skills. Most of the time he had them beaten before they ever entered the courtroom!" J. Williamson
"Michael Pezzulli is as good as it gets. You'll be hard pressed to find a litigator with not just the know-how but the experience in the courtroom to back it up. Ethically, you can be assured he is one who upholds the Texas Lawyer's Creed. And as a mediator who has mediated for Mr. Pezzulli, I know that he comes prepared, prepares the mediator, and most importantly, prepares his client." Barry Wernick
"My husband and I have known Michael Pezzulli for over 40 years. When representing us we have found him to be very thorough, decisive and, to our benefit, quite intimidating to the opposing attorney when necessary. He has an uncanny way of communicating to members of the jury and I highly recommend him to anyone who needs legal representation." Jan Richey
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