Rules for Mediation with Don Philbin

Agreement to the Rules
The appearance by any party, counsel, or other participant at a mediation conducted by Don Philbin constitutes agreement to these rules unless a timely written objection is delivered to the Mediator and all other parties before the scheduled mediation.

1. Definition of Mediation

Mediation is a highly successful, assisted settlement negotiation in which an impartial person, the Mediator, facilitates communication between the parties to promote understanding, reconciliation, and settlement.

2. List of All Participants

A week before we meet, please furnish the Mediator with a list of everyone including clients, adjusters, coverage and personal counsel, experts, legal assistants, and any other person who will be attending the mediation or be able to see or hear any of the sessions, how they will be participating, and their role in the dispute.

This is an opportunity to address logistics, authority issues, significant conflicts, and any technology limitations for remote participants. Please also provide contact information for all participants, including email addresses, after-hours contact numbers for those not appearing in person, and cell phone numbers for all counsel.

3. Disclosures, Conflicts, Impartiality, and Bias

The Mediator will disclose significant conflicts after reviewing the list of participants. Between bar and trade association activities, business dealings, and thousands of prior legal and dispute resolution engagements, it is rare that the Mediator has not had dealings with some of the counsel, experts, or parties.

4. Authority of Mediator

The Mediator may suggest ways of resolving disputes but does not have the authority to decide any issue for the parties. The Mediator is authorized to conduct joint and separate meetings, offer suggestions, adjourn or recess the mediation, or declare an impasse.

5. Authority of Representatives

Each party shall have one or more representatives present at the mediation with full authority to settle the dispute. Unless excused by the Mediator and all other parties, the following participation is strongly recommended.

• The named parties themselves shall participate during the entire mediation process, in addition to any other agents or representatives. If a party is not a natural person, that entity must be represented by an authorized director, officer, or employee.
• Counsel for the named parties shall be present. Trial counsel must be present. If any carrier is defending under a reservation of rights, the insured should have personal or coverage counsel present.
• If a party is a public entity, non-profit board, or other entity that will not or cannot delegate final, absolute, and binding decision-making authority to its representatives, or that requires ratification after mediation, at least two elected or appointed members of the governing body should attend.
• If a board or governing body cannot delegate final authority or requires post-mediation ratification, any agreement by representatives present should constitute their personal commitment to make an unqualified recommendation in open session and to make, arrange for, or second a motion for approval as applicable.
• Authorized representatives of all carriers providing insurance coverage for damages alleged in the dispute should attend.
• Failure to have sufficient settlement authority wastes time, is not conducive to effective dispute resolution, and often further polarizes the parties.

6. Parties Responsible for Negotiating Their Own Settlement

The parties understand that the Mediator will not and cannot impose a settlement. The Mediator, as an advocate for settlement, will use reasonable efforts to facilitate negotiations. All participants will consult with their own counsel, who remain responsible for advising their clients about whether to settle and on what terms.

7. Time and Place of Mediation; Use of ODR

The Mediator shall fix the time, place, and manner of each mediation session. Adjustments may be made to facilitate participation by telephone or video with agreement of the parties.

Hybrid formats often include some combination of in-person and online dispute resolution. If the parties request Zoom, teleconferencing, or similar technology, they acknowledge that they have made their own inquiries about suitability, adequacy, and any security, privacy, or confidentiality risks, and request that the Mediator use ODR.

8. COVID-19 Protocol

By participating in an in-person mediation session, participants agree to abide by any pandemic protocols in place at the host office, not attend if they have virus symptoms, and disclose any coronavirus exposure during the two weeks preceding the session.

Counsel at the host firm should let participants know of any office protocols a few days before the session. Absent a contrary host protocol, the Mediator will likely not wear a mask unless circumstances on the mediation date warrant it or a participant requests it. Upon reasonable request, participants will cooperate to provide an accommodating and reassuring health environment for all.

9. Identification of Matters in Dispute

Because it is difficult for parties to respond to new information in mediation, please share basic information on claims and demands with one another and the Mediator in advance.

You are encouraged to share your confidential view of the matter with the Mediator by the Friday before mediation so there is time to review submissions and ask questions before the session. Consider sharing prior settlement discussions, strengths and weaknesses of the parties’ positions, your assessment of likely outcomes from best to worst, and any observations about the personalities involved in decision-making.

10. Privacy and Confidentiality

Notice: If the controlling jurisdiction provides more or less privacy or confidentiality than these rules, the rules or laws requiring greater privacy and greater confidentiality apply to the maximum extent allowed by law.

Mediation sessions are private and confidential. Parties and designated representatives may attend. Other designated participants may attend only with permission of the parties and consent of the Mediator after agreeing to these rules.

All information disclosed to the Mediator during the course of the mediation constitutes privileged settlement discussions that are non-discoverable and inadmissible in any arbitral, judicial, quasi-judicial, or other proceeding. The course of the mediation includes all pre-mediation communications, all activities associated with the mediation session, and all post-mediation communications relating to ongoing settlement efforts.

The Mediator shall not be compelled to divulge such information or testify in any forum. Any party violating this rule must indemnify and hold the Mediator and other parties harmless from costs and expenses associated with resisting disclosure. The Mediator may provide executed copies of this agreement or any mediated settlement agreement to other participants in the mediation.

The Mediator may use private caucuses and pre-mediation communications. When a party or counsel communicates privately with the Mediator, they must clearly identify what is confidential. Unless otherwise stated, information not designated as confidential may be shared with other parties and counsel.

The parties shall maintain confidentiality and shall not rely on or introduce as evidence any settlement views, admissions, mediator proposals, indications of willingness to accept a proposal, or mediation exhibits unless otherwise discoverable. Counsel shall advise their clients that the mediation remains ongoing and that these rules continue to apply.

If any portion of the mediation is conducted through ODR, no undisclosed person may be within earshot or able to view any video feed. If anyone inadvertently hears or sees an exchange, that person must disconnect immediately and notify the Mediator. These provisions are to be broadly construed and do not limit additional protection available under applicable law, including Section 154.001 et seq. of the Texas Civil Practice and Remedies Code.

11. No Recording

There shall be no stenographic record of the mediation and no person shall record, videotape, screen capture, or otherwise capture any portion of the mediation or any communications, actions, or events that occur during the mediation, including any video, audio, or chat feed.

12. No Service of Process at or Near the Mediation

No subpoenas, summons, complaints, citations, writs, or other process may be served upon any person at or near the site of any mediation session or upon any person entering, attending, or leaving the session.

13. Attendance Does Not Create Jurisdictional Contact

Participation in or attendance at mediation does not constitute an appearance within the locale of the mediation or contact with that locale for purposes of determining jurisdiction or applicable law. Attendance is considered a special appearance for mediation purposes only.

14. No Guns or Weapons

Whether or not a participant holds a license to carry a concealed handgun, no one may enter the mediation with a gun or weapon.

15. Settlement of Fewer Than All Issues or Parties

All parties should be aware that a multi-party mediation may involve settlements of fewer than all parties or issues. The Mediator may be asked to facilitate settling around one or more parties or to facilitate agreements among some parties to the exclusion of others. Confidentiality obligations may prevent the Mediator from advising another party that such discussions are underway.

16. Settlement Agreements

The resolution of complex disputes seldom involves only the payment of money in exchange for a release. Drafting non-monetary settlement terms often requires careful drafting beyond a simple mediated settlement agreement, so parties are encouraged to bring proposed language for those provisions.

A lawyer acting as mediator does not violate the Rules of Professional Conduct by preparing and providing draft language memorializing settlement terms reached during mediation or by suggesting additional terms for inclusion. It remains the responsibility of the parties and their counsel to review that language carefully and adopt final terms as their own.

17. Mediator Is Neither Practicing Law nor Representing Any Party

The Mediator does not represent any party and is not a necessary or proper party in judicial proceedings relating to the mediation. All parties are advised to seek independent counsel.

The Mediator is not practicing law or giving legal advice by asking questions or making suggestions during the mediation. No participant will rely on any comments, statements, observations, or advice of the Mediator in entering any settlement agreement or related documents.

18. Termination of Mediation

The mediation terminates by execution of a settlement agreement, by declaration of the Mediator that further efforts are no longer worthwhile, or after completion of one full mediation session by written declaration of a party that the proceedings are terminated.

19. Mediator’s Proposals

In the event of an impasse, the Mediator may or may not offer to make a mediator’s proposal.

A mediator’s proposal is a set of settlement terms advanced on a blind basis. The parties are asked to accept or reject the proposal as presented, without modification or counteroffer, within a stated time frame. It does not express the Mediator’s view of value, fairness, or who is right or wrong. It reflects only a set of terms that may be within reach of all parties, even if outside any one party’s preference.

The Mediator may decline to communicate qualified responses such as ‘No, but I would pay $X.’

20. Reporting to Court

Upon conclusion of the mediation, the parties will make any required reports to the court. If the parties do not timely report or a court requires the Mediator to report, the report will indicate whether the matter settled, did not settle, remains in mediation, or reached impasse.

21. Qualifications and Certifications of Mediator

The Mediator is qualified as a court-annexed mediator under the Texas Alternative Dispute Resolution Act, is a Credentialed Distinguished Mediator by the Texas Mediator Credentialing Association, and is a member of various trade groups. The Mediator agrees to abide by the rules, creeds, and ethical guidelines of those authorities and organizations.

Most engagements are by agreement of the parties rather than court appointment. Accordingly, the Mediator may or may not be certified or qualified under the laws or court rules governing court-annexed mediation in a particular case. Unless prohibited by law, all parties and counsel waive any objection to a lack of such qualification or certification and agree that the absence of it does not impair confidentiality or invalidate any agreement reached.

22. Fees and Expenses

If fees were not separately quoted and agreed during scheduling, the Mediator’s fee schedule in effect at the time of mediation applies. Counsel for the parties are responsible for payment of all fees and expenses unless they advise the Mediator in advance that they are not assuming that responsibility, in which case an advance deposit from the client will be required.

Generally, each entity represented by counsel pays a per-party rate and shares expenses. Fees are fully earned at the commencement of the mediation.

23. Fee Remittance and Taxpayer ID

Fees should be paid to Donald R. Philbin, Jr., P.C. and remitted to P.O. Box 12367, San Antonio, Texas 78212 in advance of mediation. The Federal Taxpayer ID number is provided with the confirmation materials, and a Form W-9 is available on request.

24. Observers and Administrative Assistance

From time to time, the Mediator may have observers, students, clerical help, co-mediators, or assistants present at a mediation or involved in follow-up tasks such as collecting signatures. For confidentiality purposes, all such persons are treated as mediators of the subject dispute, with the same obligations of neutrality and confidentiality and the same confidentiality protections applying to communications involving them.