business divorces, oil & gas, breach of contract, fraud, legal malpractice, real estate, products liability, breach of fiduciary duty, DTPA, securities fraud, TCPA, and anti-SLAPP. I have seen two notable trends in my time mediating cases. First, we have partisan judicial elections in Texas, and if the relevant court of appeals turns blue, then lawyers on both sides of my cases start changing their valuations, thinking the new appeals court will be more plaintiff-friendly. Second, I see more and more lawyers insist that I skip any kind of opening session where the parties or the lawyers make presentations. Some lawyers say an opening session will rile emotions and set back any settlement efforts, while others say a strong opening speech will embolden a client to think its case is stronger than it really is. What is your approach or style to mediation? Preparation is my calling card. Before each mediation, I meet separately with each side, review the mediation statements, hot documents, and key pleadings, and ask both sides what I consider to be the tough questions. I think it is critical to have pre-mediations meetings with both sides, rather than just read the mediation statements. These meetings are interactive and allow me to ask (before the actual mediation) how each side sees certain facts playing out before a jury and explains the bad documents. By being fully educated about the facts and law beforehand, I always hit the ground running. The lawyers do not have to waste half a day educating me about the case while their clients get frustrated by a lack of progress; we can move straight into negotiating a possible resolution. Once the mediation starts, I think my style is similar to that of a law professor. I like to talk directly to the clients about what I see as the strengths and weaknesses of their case, I walk through how a jury is likely to view the evidence, and I sometimes conduct mock crossexaminations on key documents to see how a witness might fare in court. WWW.LAWYER-MONTHLY.COM 39 What is the general time frame for mediations in your jurisdiction? Is there any statutory period within which mediations must be completed? No, there is no required timing for mediations in Texas. I have had parties mediate with me before and after cases are filed; before, after, and during discovery; on the eve of trial; and even after final judgment has been entered. www.brownfoxlaw.com How are mediation proceedings conducted in your jurisdiction? There is no mandatory format for mediations in Texas. I have had success with all of the standard formats: in-person, Zoom, and hybrid. I prefer in-person mediations because I learn a lot of information through body language and facial expressions during my private caucuses. However, there are advantages to the Zoom and hybrid formats, namely that it is often easier to get high-level decisionmakers to attend a mediation if they can attend via Zoom.
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