Mediation in Texas

An Interview with Brian Robison: Business-Litigation and Mediation in Texas

One of the most interesting developments in commercial litigation is the way a new generation of mediators is using creative and business-minded approaches to resolving conflict. One of those taking a new approach to mediation is Brian Robison, a partner in Texas-based law firm Brown Fox PLLC.

Given your background as a trial lawyer who represents large companies in a wide range of business-litigation matters, how did you decide to branch out into mediation and alternative dispute resolution?

I made this transition for two reasons. First, I saw the toll that protracted litigation takes on the litigants, and I wanted to get involved in helping parties resolve their disputes. Complex business disputes often last for years and cost the parties dozens of millions of dollars in lawyer and expert fees as well as settlements on the eve of trial. I still love the law, but instead of being part of the slog toward trial, I wanted to play a different role. I wanted to see if I could help design creative solutions that would allow parties to stop the haemorrhaging on fees and reach closure before rolling the dice with a jury. Second, in my 26+ years as a trial lawyer, I saw a wide variance in the quality of mediators I used. Some were exceptional. The mediators in this category invested the time necessary to learn the case, they understood the personal dynamics on each side, and they did not have only one way of running a mediation. They tailored their plan to the situation they faced. However, other mediators were nothing more than number-carriers. They did not add any value to the process. I thought by fitting myself into the first category, I could offer parties and lawyers a solid alternative to a jury trial who could help them put the distraction of litigation behind them.

As a trial lawyer who represents large companies in a wide range of business-litigation matters, how has this experience helped you add value to conflict resolution clients and their disputes?

By drawing on my 26+ years of litigating complex cases, I am able to paint an explicit picture of the costs, uncertainty, and delay involved in protracted litigation. It is surprising how many parties do not realize (until I talk to them) that there is a monstrous difference between securing a favorable jury verdict and actual collecting money. Prevailing at trial is nothing like getting money out of an ATM. Prevailing at trial means a party has a nice piece of paper entitled “Final Judgment” to hang on the wall. They often face years of expensive appeals and then collection efforts before they realize any benefit from that judgment. I emphasize that through a settlement, the parties have some control over the outcome, whereas at trial their fates are in the hands of 12 jurors whose only qualification is a driver’s license. A settlement also brings closure years earlier than a litigated solution. And a settlement ensures cost control; the parties can stop the costly cycle of discovery, motion practice, and preparing for trial several times as cases get set and reset for trial multiple times before reaching a jury.

What type of cases have you worked on, and are you seeing any recent trends in mediation?

I have mediated a wide variety of cases, including: employment, non-competes, business divorces, oil & gas, breach of contract, fraud, legal malpractice, real estate, products liability, breach of fiduciary duty, DTPA, securities fraud, TCPA, and anti-SLAPP.

I have seen two notable trends in my time mediating cases. First, we have partisan judicial elections in Texas, and if the relevant court of appeals turns blue, then lawyers on both sides of my cases start changing their valuations, thinking the new appeals court will be more plaintiff-friendly. Second, I see more and more lawyers insist that I skip any kind of opening session where the parties or the lawyers make presentations. Some lawyers say an opening session will rile emotions and set back any settlement efforts, while others say a strong opening speech will embolden a client to think its case is stronger than it really is.

What is your approach or style to mediation?

Preparation is my calling card. Before each mediation, I meet separately with each side, review the mediation statements, hot documents, and key pleadings, and ask both sides what I consider to be the tough questions. I think it is critical to have pre-mediations meetings with both sides, rather than just read the mediation statements. These meetings are interactive and allow me to ask (before the actual mediation) how each side sees certain facts playing out before a jury and explains the bad documents. By being fully educated about the facts and law beforehand, I always hit the ground running. The lawyers do not have to waste half a day educating me about the case while their clients get frustrated by a lack of progress; we can move straight into negotiating a possible resolution. Once the mediation starts, I think my style is similar to that of a law professor. I like to talk directly to the clients about what I see as the strengths and weaknesses of their case, I walk through how a jury is likely to view the evidence, and I sometimes conduct mock cross-examinations on key documents to see how a witness might fare in court.

How are mediation proceedings conducted in your jurisdiction?

There is no mandatory format for mediations in Texas. I have had success with all of the standard formats: in-person, Zoom, and hybrid. I prefer in-person mediations because I learn a lot of information through body language and facial expressions during my private caucuses. However, there are advantages to the Zoom and hybrid formats, namely that it is often easier to get high-level decision-makers to attend a mediation if they can attend via Zoom.

What is the general time frame for mediations in your jurisdiction? Is there any statutory period within which mediations must be completed?

No, there is no required timing for mediations in Texas. I have had parties mediate with me before and after cases are filed; before, after, and during discovery; on the eve of trial; and even after final judgment has been entered.

About Brown Fox
Founded in 2010, Brown Fox is a business boutique law firm focused on serving businesses, executives, and entrepreneurs in practice areas most commonly needed to advance business growth, manage risk, and defend from attack. The firm’s representative clientele includes companies ranging from start-ups to publicly traded companies. The firm has offices in Dallas and Frisco.  

About Brian Robison
Brian Robison is a trial lawyer at Brown Fox PLLC who represents large companies in a wide range of business-litigation matters. Mr. Robison is also a professional arbitrator and mediator offering parties the full complement of alternative-dispute resolution services. These ADR procedures provide parties a way to resolve disputes and reach finality far sooner than they could expect in court, while reducing litigation costs and eliminating risk. When serving as a mediator, Mr. Robison draws on his more than 26 years of experience representing both plaintiffs and defendants in a wide range of litigation matters and delivers the advantages of the ADR process.

Email: brian@brownfoxlaw.com
Tel: 972 707 1809
www.brownfoxlaw.com

Published by: www.lawyer-monthly.com