"Why Are We Fighting…?" Moving Cases With Business Sophisticated Parties Along: A Texas Mediator's View
In the realm of Texas dispute resolution, effective mediation is not merely a formality but a results-driven process that demands efficiency, especially when handling disputes between business sophisticated parties. When knowledgeable attorneys and savvy businesspeople are involved, the mediator's role is to facilitate, not to belabor points that both sides already understand. A seasoned mediator recognizes when to cut through the noise, skip unnecessary opening pleasantries, and focus heavily on direct negotiations, using their time to bridge gaps rather than re-litigating facts the parties have already exhaustively reviewed in discovery.
However, the mediator must quickly identify when a party is acting out of emotion, ego, or a misunderstanding of risk rather than business logic. In these scenarios, the mediator’s duty shifts from passive facilitation to active confrontation. Stubborn parties or attorneys clinging to unsupportable positions must be squarely confronted with the critical, direct question: "Why Are We Fighting…?" I usually leave the "Like Children" part out, but the point is usually made without it, and is often blunt enough. The point is, however a mediator wants to express some level of frustration when he or she feels like he or she is breaking up a schoolyard altercation, a blunt inquiry sometimes forces all participants to stop focusing on past grievances or unrealistic trial outcomes and instead focus on the real, mounting costs of litigation.
While mediation is fundamentally a voluntary process in Texas, that does not mean a mediator should allow a case to fall apart simply because negotiations are difficult or tense. A key aspect of a successful Texas mediator’s approach is to encourage both sides to stay the course, even when one party threatens to walk away. The mediator acts as a guide through the "highs and lows," helping parties see that as long as there is movement, a resolution is possible, and giving up prematurely is simply abandoning control to a judge or jury.
The "do's" of this approach involve managing the tempo of the session to prevent fatigue, which often causes poor decision-making. Mediators should encourage the exchange of information and potentially even preliminary documents before the session, allowing the actual meeting to focus on closing the financial gap. By highlighting the hidden costs of continued litigation—such as lost management time, expert witness fees, and emotional toll—the mediator helps stubborn parties realize that the "fight" is hurting their own bottom line.
In all instances, but especially in cases involving business sophisticated parties, the goal of a Texas mediator is to foster a swift, efficient, and binding resolution that preserves business relationships and avoids the unpredictability of a courtroom. By driving the process forward, confronting unreasonable stances with direct questions, and encouraging persistence, a skilled mediator transforms a stalled negotiation into a successful settlement. The focus remains on the future, not the past, ensuring that all participants leave the table with a practical, workable agreement.