Alternate Dispute Resolution (ADR)

Beaumont and Orange, Texas

There has been much talk in recent years about public policy favoring alternative dispute resolution over litigation.  Alternative dispute resolution (commonly called ADR) is simply any way to end a dispute without a trial.  The most common method of pretrial resolution is a settlement informally negotiated between the parties or their lawyers.

For many decades, negotiated settlements were the most common method of resolution in litigation.  We most often hear today about arbitration and mediation.  Arbitration occurs when the parties by agreement, or otherwise, have their dispute decided by an individual arbitrator or three-member panel of arbitrators.  Arbitrations were at one time thought to be more efficient and less expensive than trials.  Unfortunately, that is no longer true today–if it ever was the fact. 

Arbitrations are usually very expensive and the rules are less likely to lead to the true facts being presented and bad decisions cannot be corrected by an appellate process.  Most lawyers think that arbitrations greatly favor big business and insurance over consumers.  The worst thing about arbitration is that it removes the parties from the decision-making process and leaves the decision to the individual arbitrator or arbitrator panel, from whom there is no appeal. 

On the other hand, mediation is a process that can take place before, during or after a trial in which the parties and their lawyers meet with a professional (usually a lawyer) trained in the mediation process, with each side making a presentation of its position to the other side through the lawyers and then trying to negotiate a resolution of the dispute.

 The presentations are often like a miniature opening statement for a trial.  The parties usually then separate with the mediator visiting with the different sides and their lawyers individually.  The mediator will then shuttle back and forth between the parties, discussing key points and trying to get the two sides to make settlement demands and offers and eventually working the parties toward a middle ground and, hopefully, a final resolution of the dispute. 

However, a resolution occurs at mediation only if all parties agree to the resolution because the mediator has no authority to decide the dispute or force the parties to settle.  The mediator can only help develop (and continue) dialog between the parties and help to persuade them to resolve their differences.

Trial vs. Mediation

During the last three decades, the legal world has experienced rapid and vigorous growth.  This time of growth has been accompanied by widespread flourishing of the legal industry at almost all levels–numbers of attorneys and support staff, technological advances within the industry, and even prominence of the law in the public consciousness.

Simultaneously, the primary tool of the legal system–the trial–has experienced a sharp decline.  The American Bar Association’s Section of Litigation recently released a study called The Vanishing Trial.  This study found that case dispositions have increased from 50,000 to 258,000 cases over the past 50 years.  This is a 500% increase.  The actual total number of federal civil trials in 2002 was 20% lower than the actual number in 1962. 

The landscape has changed for today’s “trial” lawyers.  With this changed landscape, the modern trial lawyers and their clients must recognize this change and approach litigation differently.  It is unlikely that many litigation lawyers beginning their practices today will ever have the opportunity to try hundreds of jury trials like Bush Lewis senior lawyers Don Bush, Ken Lewis and Jack Smith have done, or, even try the dozens of jury trials the other Bush Lewis lawyers (Sonya Coffman, Dale Hanks, Chris Smith and Jim Sharon Bearden) have experienced.

This means that mediation and negotiation skills are now more important than ever.  Trial skills are still a key tool in the lawyer’s kit and a key to successful resolution of cases before a jury verdict, the ability to negotiate and expertise in hiring and working with skillful mediators is often equally or even more relevant today.

The national Center for Public Resources Institute for Dispute Resolution reports that the success rate for voluntary, private mediation is 81%, while the success rate for court-ordered mediation is only 64%.  This is impressive when we remember that only 2 of every 100 lawsuits are resolved by trial today.

Settlements occur as the parties and their lawyers consider a combination of the law, the evidence, considerations of expense and delay, implications of publicity and confidentiality, and other non-legal variables.  In other words, the law and the facts of the case are not the only factors in the mix when lawsuit resolutions are considered and finalized.

As trials wane in the legal world, pre-trial adjudication and alternatives to trial are playing increasingly important roles in litigation.  The skill of a trial attorney at educating clients and preparing for mediation are now equally important to preparing for trial and must be given the same importance and effort.

It is true that our 7 lawyers have over 142 years of combined legal experience and hundreds of jury trials. We also have tremendous experience working individually, with co-counsel, and mediators to negotiate creative and advantageous settlements.  It is important to develop realistic goals and desired outcomes prior to mediation.  We make sure our clients know the purpose of mediation, the gamesmanship involved, and the likely goals and strategies of the other party or parties.  We demonstrate daily our preparedness, professionalism, and commitment by paying close attention to details and effectively utilizing our financial, technological, and human resources.  We know that our proper marshaling of our resources can make a tremendous difference in the way a case is evaluated by an opponent and eventually resolved.

Mediation Expertise

Don Bush and Ken Lewis have been involved in mediation since the very first voluntary
 Settlement Week efforts were established almost two decades ago by various local bar associations and underwent numerous mediation training programs to work as volunteer mediators in dozens of mediations during Settlement Weeks. 

Ken Lewis was appointed to conduct a nationwide investigation for the Jefferson County Bar Association over 25 years ago on Dispute Resolution Centers, which led to the establishment of the Jefferson County Dispute Resolution Center. 

Don Bush and Jack Smith have taken special advanced mediation training and Don Bush completed the prestigious A. A. White Dispute Resolution Center Mediator Training Course at the University of Houston Law Center in 2003. 

The Bush Lewis offices in both Beaumont and Orange are set up to enable senior lawyers Don Bush, Jack Smith and Ken Lewis to serve as professional, retained mediators at either location. 

Jack Smith and Don Bush work regularly as hired professional mediators and Ken Lewis occasionally accepts employment in special cases as a mediator. 

All of the Bush Lewis lawyers have worked as volunteer mediators.  Our lawyers have been involved in mediations since they emerged as a tool in the litigation process and have the training and experience to mediate almost any kind of case, whether it involves injury, death, breach of contract, environmental injury, defamation, employment, business litigation, insurance, or consumer rights.  Very few lawyers can today enter a mediation with a client with the unique perspective and combination of skills developed by the Bush Lewis lawyers from hundreds of jury trials and previous mediations.  This helps us get the job done for our clients in mediation.