“A small benefit obtained is better than a great one in expectation.” – Irish Proverb
“An ounce of mediation is worth a pound of arbitration and a ton litigation! – Joseph Grynbaum
“Let us never negotiate out of fear. But let us never fear to negotiate.” – John F. Kennedy
This is a book that explains mediation in conversational English. This is not a textbook for a law school, but rather an introduction to mediation for actual litigants. Every attempt has been made to avoid “legalese” so people with little or no legal training can understand it. No one plans or expects to be in court on a personal injury case. Then out of nowhere, life happens. The entire process can be very frightening for the uninitiated. It is my hope to pull back the curtain, so to speak, so people will not be intimidated if they find themselves thrust into, what appears to be, the very hostile environment of litigation.
The numbers do not lie. Most cases are settled before trial. For that reason alone, mediation has become a critical aspect of the litigation environment. Any fool can start a fight. It is the truly skilled fighter who can pursued his opponent not to resist. It has been my experience that the public at large has no real understanding of how to resolve a lawsuit. They hear things, see things, read things, that create a belief system as to how the system works. It starts with “make a ridiculous demand and then stand on it.” That strategy will guarantee a trial every time. It is doomed to fail because it assumes your opponent is not very bright.
It seems Google has made everyone a lawyer. I know this because a lot of my time is spent convincing my clients the blogger they thought was brilliant is just flat wrong.
Clear your mind of so called “conventional wisdom” for a moment and read the following pages with an open mind. I am happy to take the mystery out of mediation so you can approach it in such a way as to maximize your recovery. Remember, the beauty of mediation is, if you do not like the final offer, you can always walk away and go to trial.
To my clients, the many people who have trusted me with some of the most important matters in their lives. “We have fought the good fight – you and I.” We have faced the grief and anguish of profound loss with grit, courage, defiance and a fair bit of humor. It has been my honor to serve you all.
I have been fortunate to have been mentored by many talented and generous people both in and outside of law. I am lucky to have an understanding wife who has always been my “partner in crime,” so to speak. It is my teachers who I wish to thank the most. I was a discipline problem from Junior High through my first year of law school. Thank you for never giving up on me. I try to pay it forward every day.
This publication is intended to be used for educational purposes only. No legal advice is being given, and no attorney-client relationship is intended to be created by reading this material. The author assumes no liability for any errors or omissions or for how this book or its contents are used or interpreted or for any consequences resulting directly or indirectly from the use of this book. For legal or any other advice, please consult an experienced attorney or the appropriate expert who is aware of the specific facts of your case and is knowledgeable of the law in your jurisdiction.
Hampton & Rawlings
Personal Injury Attorneys
1927 Norfolk St
Houston, TX 77098
“I’ve known Clay Rawlings for 35 years and I have tried cases with him as well as against him. Clay is the lawyer’s lawyer in personal injury and I hold his legal acumen in the highest esteem. He possesses an exceptional understanding of people, the law and the Court. Clay couples an unparalleled trial experience with an uncanny ability to read the essential elements of any case, whether witnesses, damages, facts or theory. In short, he’s a damn good lawyer!”
Attorney at Law
“I have referred all my personal injury cases to Clay Rawlings for over 25 years and he never let me down. Clay is the most tenacious personal injury attorney I know, and what a superb brilliant legal mind he has. There are very few attorneys that ever reach his caliber, yet he is humble and a natural mentor. It is a true honor and privilege to work with him, and watch him work his magic in a courtroom.”
Stephen K. Leatherman
Attorney at Law
“I have known Clay Rawlings for over 30 years and have had the honor of assisting him in mediating cases I have referred to him. Clay approaches mediation as if he were trying a case to a jury. When he addresses the opposition, they are overwhelmed with the evidence and the visual aids he has prepared. I watched him go after a slumlord who allowed his properties to fall into such disrepair a young mentally ill girl lost her life in a fire. The slumlord's bravado quickly melted when he realized Clay had found his numerous properties and would take them all to pay for the young girl’s loss of life. He forced the slumlord to pay a substantial settlement out of his own personal funds because he had no insurance. But that was not enough for Clay. He also required the slumlord to place fire detectors in all his properties as a condition of the settlement. This only happens when you come to mediation so prepared the other side realizes a trial would inevitably lead to a large jury verdict.”
James Randall Smith
Attorney at Law
“Where do I begin?!.... Clay Rawlings is one of the best, if not THE BEST! I have referred him to all my friends and family. He is a person that is very compassionate, understanding, and “there for you” when it is most needed. He has never let me down or anyone that I have referred. He is not just a fabulous person but a remarkable one as well. His work ethic and attention to detail is impeccable. There are not many attorneys that will go the extra mile for their client as Clay has. I am forever thankful to Clay Rawlings and he will always get referrals from me!”
TABLE OF CONTENTS
i. Preface 3
ii. Dedication 5
iii. Acknowledgements 6
iv. Disclaimer 7
v. Testimonials 8
vi. About The Author 14
- Clayton’s Experience In Handling
Mediation Cases 17
- What Is Mediation? 21
- What Percentage Of Personal Injury
Cases Goes To Trial? 23
- How Do You Determine Whether To Mediate
Or Take A Personal Injury Case To Trial? 26
- Is Mediation Ever Court-Ordered? 29
- Does Everyone Sign A Confidentiality
Agreement In Mediation? 32
- Who Is Present During Mediation? 35
- Role Of A Mediator In The Mediation Process 37
- How Is The Mediator Selected
In A Personal Injury Case? 42
- When Speaking With The Mediator,
Will The Other Party Be Present? 45
- Tactics That The Defense Uses
During Mediation 47
- What Is The Outcome Of
The Personal Injury Mediation? 51
- Preparing For The Mediation Hearing 54
- Cost of Mediation and its Effect
on Settlement Amount 58
- Hire An Attorney Who Is A
Bona Fide Litigator 62
- Tips For A Favorable Outcome 66
vii. Index 76
viii. Notes 77
ABOUT THE AUTHOR
I received my undergraduate degree in 1977 from the University of Texas. I then graduated from The University of Houston Law School with a JD in 1980. I have been a licensed attorney ever since and have spent my entire 38 years in litigation. I have tried to verdict over 150 cases. Starting as an Assistant District Attorney for Harris County, Texas, I handled everything from auto theft to capital murder. I left the DA’s office in 1985 and with my partner, Keith Hampton, formed Hampton & Rawlings. We started as a criminal defense firm for the first six years. In 1991 I tried my first personal injury case and obtained a jury verdict of $1,061,000. We then spent the next 28 years focused primarily on obtaining economic justice for the injured and disabled. Since that time, Hampton & Rawlings has recovered many millions of dollars on behalf of our clients. It has been my honor to serve with my partner, Keith Hampton, for 33 years.
I am married to the love of my life and we have raised 5 wonderful children who are all educated and raising families of their own. My oldest son owns a very successful barbershop in Santa Monica, California. My youngest daughter won the silver medal in the NCWA finals and was declared an All American. She was the first female wrestler to ever represent The University of Texas. My second youngest daughter is in an artillery unit in the United States Army. She is presently assigned as a gunner on a multi rocket launcher and her unit is about to deploy to Afghanistan. They have been assigned as support for an elite Rangers Unit. I am proud of all my children. I raised my girls to be warriors. It never occurred to me they would take it literally.
I have always been a thrill seeker. For that reason I have been a downhill snow skier, scuba diver (including wreck, cave, and night dives), and skydiver. I flew with the Texas Air Aces and engaged in mock aerial combat at 10,000 feet. I parachuted twice from 13,000 feet. My wife and I have run with the bulls in Pamplona, Spain three times. Nearly gored twice. We returned to Texas, bruised, bloodied, but head unbowed. It is that same sense of adventure that I take into the courtroom.
CLAYTON’S EXPERIENCE IN HANDLING MEDIATION CASES
I have been in litigation my entire career. For the past 28 years, I have focused primarily on personal injury cases. Hampton & Rawlings has handled over 1,000 personal injury cases and taken the lead in well over 100 mediations. The vast majority resulted in settlements. Many involving millions of dollars being provided to our clients to help them put their lives back together. Our firm does not advertise and the bulk of our clients are referrals from other attorneys. We take these cases very seriously because to lose one would result in our client descending into poverty and despair.
I have taken numerous hours of continuing legal education on effective mediation techniques. I have gone outside the legal community and have studied Game Theory by the Rand Corporation. These are the same techniques used to negotiate nuclear disarmament treaties. My favorite book concerning conflict resolution is “The Art of War,” by Sun Tzu, written in the Sixth Century BC. Although it is over 2,000 years old, this military general’s insight into conflict resolution is as valid today as it was on the battlefields in ancient China.
I also have access to numerous technical people for the production of compelling trial exhibits, videos and power point presentations. These technical aides are indispensable when proving our cases in the modern era. After all, when it is all said and done, we tell stories. It is what trial lawyers do. That skill is as necessary in mediation as it is in front of a jury, for reasons I will explain later.
What Interested You In Practicing This Specific Type of Law?
The advantage of starting in the District Attorney’s Office is that I was charged with only prosecuting people I believed were guilty. This allowed me to enter the courtroom each day feeling good about my role in society as a protector and force for truth. In those instances where I discovered we had charged the wrong person, I had the authority to dismiss the case and prevent an injustice.
When doing criminal defense work, on the other hand, I was sometimes forced to take positions that—while legally permissible–conflicted with my personal sense of what is right and wrong.
When I tried my first personal injury case, I had a chance to help an individual who was permanently disabled. I found myself dealing with a defendant corporation that was absolutely unwilling to help my client in any way. That first verdict, for over one million dollars, changed everything. Since 1991, I have handled over one thousand personal injury cases and lost seven. Does that mean that I am the greatest trial lawyer in the world? No, it absolutely does not. What it means is I screen my cases very closely and only bring those which I believe to have merit. It is actually difficult to hire me. I turn away potential clients more often than I accept them. I will only take a case if I truly believe that I will be arguing the truth. The insurance defense lawyers do not have this luxury.
WHAT IS MEDIATION?
Mediation is a process whereby both sides agree to appear before a neutral mediator in order to express their position with regard to the contested matter. Mediators do not argue for or against either side, and should be very careful not to betray to either side their personal opinion. It is the mediator’s job to facilitate dialogue and encourage each side to see the other’s perspective. Oftentimes when people gain this kind of understanding in a non-adversarial environment, they will gain insight and acknowledge the weaknesses of their own position. Mediation also allows a defense attorney to use the mediator to have a hard conversation with the defendant or the insurance adjuster as to what is actually at stake and what the probable outcome will be. As compared to the cost of trial, mediation is relatively inexpensive.
Litigation is a purely adversarial proceeding in which the two sides essentially go to war. The plaintiff’s lawyer presents their case and tries to convince the jury that their position is correct and they should make a decision in their favor. The defense tries to unravel the plaintiff attorney’s argument and reveal a different side to the case, claiming that the jury should make a decision based on their version of the narrative. The outcome is then decided by twelve strangers selected at random.
The greatest advantage of mediation is the certainty of the outcome. If an agreement is reached, both sides come away with a final result that they agreed to. All the uncertainty of a jury verdict has been removed from the process. Mediators joke that the sign of a good mediation is when both sides leave angry with the settlement. If both sides are disappointed with the outcome then it must have been fair.
WHAT PERCENTAGE OF PERSONAL INJURY CASES GOES TO TRIAL?
Presently, 96 percent of all personal injury cases get settled or dismissed, which means that only 4 percent will ever be tried. This, however, does not at all render litigation skills irrelevant to the process of a personal injury case. In part, this is because defendants are represented by very sophisticated attorneys who are paid by the insurance industry. They know which attorneys will actually try a credible case. As a result, real trial lawyers are taken seriously by defense attorneys in mediation; they understand that if the mediation fails, they will see the inside of a courtroom. Lawyers who have a reputation for not taking a credible case to trial are less likely to be taken serious in mediation. Because there is no threat of a trial, they will lose negotiating leverage and end up with a mediocre settlement.
Difference Between Mediation and Trial In A Personal Injury Case
A trial includes a jury of 12 people who are chosen at random to hear a case and render a decision. To call a trial adversarial is an understatement; it is war. In addition to the evidence, a jury judges every aspect of each lawyer. It means that every move and every single word spoken is an opportunity to either win or lose a case.
Anyone who truly understands litigation understands that the amount of accompanying stress is enormous. I laugh when lawyers claim they are not nervous in trial. It indicates that they either do not know what they are doing, or that they are lying. Every mentor with whom I have worked has admitted to being nervous before trial, despite arguing like a lion once in litigation.
Mediation is quite different from a trial. In many respects, it involves cooperative behavior between the opposing parties. There is an old saw in the litigation world that goes like this: “Prepare a case for settlement and you will try it. Prepare a case for trial and you will settle it.”