Mediation is an alternative dispute resolution that is, fundamentally, a meeting of the parties to a dispute with an independent person, the mediator, to serve as a liaison between the parties with the goal of faciliating, not forcing, a settlement. It is a negotiation session that, with the help of the mediator, allows the parties to discuss freely all concepts and possibilities of settling their dispute. The process offers the opportunity for each party to discuss their position, to express their frustrations with the dispute, the case, and the legal angles of each side, to argue their position and present the reasons they should prevail, to complain and even whine to someone other than their attorney, about their entire experience. Getting a chance to vent can, often, be cathartic and it is the catharsis that sometimes swings an unsettlable case into settlement. It also opens the minds of all involved to think of pathways to settle that none of them had considered before.
Ultimately, a settlement is a product of the parties efforts to end their fight to move-on to bigger and better things that are more productive. Very important to the process is that it is confidential from the courthouse. Settlement discussions can be inadmissible under the Texas Rules of Evidence. But the mediation process is absolutely confidential under the Texas Civil Practice & Remedies Code - meaning, the mediator cannot be called as a witness, the mediator's notes are not discoverable and matters discussed at mediation cannot be used against any party, although facts learned at mediation can be discovered by other means.
Facilitating negotiation is far different than deciding the case. A mediator is not an arbitrator. Mediation is non-binding and, by law, the parties are to enter settlement agreements voluntarily, of their own freewill and acord, and without any duress whatsoever. While there are rare exceptions, no one is supposed to be forced to settle a case at mediation or otherwise. Mediation is highly effective at resolving cases before trial. Mediation is so successful that most courts make mediation mandatory before the parties are allowed to proceed to trial, i.e., mediation must be attempted and failed before a trial will be held.
The goal of mediation to resolve the dispute to avoid all the bad and hazards of the trial process, not the least of which is the expense, stress, and uncertainty of allowing a jury to decide how the factual disputes should be resolved, based upon the evidence. Mediation allows the parties to decide how the case should be resolved instead of six or twelve jurors that are, usually and supposed to be, perfect strangers to the parties and the case.
Over 3 Decades of Experience with Mediations as an Attorney and a Mediator
Kevin's knowledge in the unique area of estates, trusts, fiduciary litigation and guardianships helps advance those cases to their reasonable end.
Kevin Spencer obtained his Mediation Certification from the Center for Public Policy & Dispute Resolution at the University of Texas in 2012, qualifying him to mediate disputes in Texas.. Kevin has practiced law in the area of estate, trust, guardianship and fiduciary litigation for over three decades and has participated in many mediation sessions as an attorney representing a party giving him experience mediating cases from the party’s perspective. Along with his mediation training, such experience make him a more effective mediator as well.
Kevin's Mediation Philosophy
Getting to work early to make the most of the day and everyone's time.
Kevin’s philosophy as a mediator is to get to work right away. Parties should consider the mediation and its possibilities before arriving, conjure all settlement possibilities limited only by each party's imagination and arrive with settlement offers already formulated. Our office is well-suited for multi-party lawsuits and we will work to provide hospitality and comfort to everyone attending, including providing lunch so we can continue to work during the lunch hour, so we can utilize every hour. Kevin is not interested in wasting anyone’s time in order to meet the pre-requisite for a trial. The goal is to resolve the dispute and end the litigation.
Kevin is driven to settle cases he mediates and, just like he hates to lose, he hates when cases he mediates do not resolve. All parties are expected to and must attend meditation in good-faith and with the goal of settlement a priority. Often mediation is a process that must run its course. Each party is expected to devote the entire day to the process, so it can run its course. Parties and attorneys must devote the day to the process, so the momentum gained at the mediation session is not lost by ending it prematurely due to lack of interest, a prior appointment or other conflict, flight tickets, or just the desire to leave early; none are good excuses for ending the mediation early. All are expected to work hard, to dedicate themselves to the effort for as long as it takes and endure the process to see it through to the end, including papering a full-blown settlement agreement, rather than a “term sheet”, that will end the case. Kevin has the stamina and determination to stay as long as needed and will devote the time necessary before, during and after the mediation to get the deal done; he challenges anyone to outlast him.
Mediation is only as successful as the attitudes of the parties when they show up and flexibility is a must. Unfettered greed, a desire for revenge or spite, a bad attitude and all other selfish goals will destroy the process every time, and must be avoided.