Frequently Asked Questions

The right time to mediate a dispute depends on several factors, including the complexity of the issues, the willingness of both parties to negotiate, and the stage of the legal process. Mediation can be beneficial early in a dispute before legal costs escalate, but it can also be effective later when both sides better understand their positions. In many cases, parties choose mediation after initial discovery but before trial preparation, when the cost and uncertainty of litigation become more apparent. Courts may also encourage or require mediation at various stages. Ultimately, mediation is most effective when both parties are open to finding a resolution and avoiding prolonged litigation. Involving a mediator early to help assess readiness for mediation and to guide the parties to a successful mediation is always recommended.

Both in-person and virtual mediation have their advantages. In-person mediation allows for direct communication, making it easier to read body language and build rapport. It can also create a more focused environment where parties are less likely to be distracted. Virtual mediation, however, offers flexibility, reduced travel costs, and convenience, making it an attractive option for busy professionals or cases involving geographically distant parties. Advances in technology allow virtual mediation to be just as effective, provided that participants are comfortable with the technology and have a willingness to engage. The decision ultimately depends on the preferences of the parties involved and the complexity of the case.

Opening statements in mediation can be useful but are not always required. Some mediators encourage them to help clarify each party’s perspective and set the stage for productive discussions. They provide an opportunity to express concerns, outline key issues, and establish expectations for the process. However, in some cases, opening statements can heighten tensions, particularly if parties are already entrenched in their positions. Some mediators prefer to start with private discussions to foster a more collaborative atmosphere. Whether to include opening statements depends on the nature of the dispute and the mediation strategy that best suits the situation.

I get asked about this a lot. I started mediating in the mid 1980’s when I was practicing law with a large Dallas law firm. When I later accepted a position as CEO of one of my general contractor clients, I continued to mediate from time to time, because I enjoyed it and because I always learned something that might help keep our company out of trouble with our next project. The mediation fees always went to the company.

In 2001, I left the construction company to help start up SureTec Insurance Company, a surety company, with a former client. As with any surety or insurance operation, it usually takes a year or two for claims to start happening. In the earliest days, I mediated just to bring in extra fee income to the company. It did not require us to pay a commission, and those fee dollars did not have risk associated with them. Those fee dollars were appreciated in the earliest days of the company. Over time, I had to cut back on the mediation as claims responsibilities increased. In 2017, our company was bought by Markel Corporation, a Fortune 500 insurance holding company that did not have a surety operation at the time. I stayed on to integrate our operation into Markel’s. Over time, I began to put together a team that would one day allow me to retire or spend more time mediating. In January 2024, I hired an extraordinarily talented woman to assume my role as the Chief Claims Officer of Markel Surety.

I have stayed on with Markel of its Executive Leadership team, but nearly all my time is spent mediating and involved in other ADR processes. Markel gets the fees. I get paid well. Everyone is happy. And, I have access to offices all over the US in which to mediate, a scheduling assistant who has been with me for decades, an accounting staff to handle billing and collection, an escrow department that can handle settlement funds when needed, and dozens of talented insurance professionals who occasionally help me with coverage questions.

Markel, usually through Evanston Insurance Company, writes general liability and professional liability insurance for contractors, subcontractors, and design professionals. When I find that Evanston or another Markel company participates in a case, I disclose it. Inasmuch as I have never had anything to do with those product lines, rarely does anyone object to my mediating those cases. If there is even the slightest concern on my part or someone else’s, I do not accept the case.

Absolutely! While I stay busy, cancellations happen, and I often hold days for conferences, vacations, or industry activities that cancel, that I might decide not to do. . Even if I can’t accommodate an early date, I may know another highly qualified construction mediator who can. It’s always worth reaching out.  You might be surprised by what’s available.