Rules for Mediation with Don Philbin

The appearance by any party, counsel, or other participant at a mediation conducted by Don Philbin (“Mediator”) shall constitute an agreement by that person or entity to abide by these Rules for Mediation unless timely written objection to these Rules is delivered to the Mediator and all other parties in advance of 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 Mediator with a list of everyone (including clients, adjusters, coverage and personal counsel, experts, legal assistants, etc.) who will be attending the mediation or be able to see or hear any of the sessions, how they will be participating (in person, video, audio, etc.), and their role in the dispute. This is an opportunity to not only address logistics, but any authority issues or significant conflicts. If there will be technology issues with remote participants using cameras, please indicate the limitations. 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 to you 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, to offer suggestions, to 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 Mediator suggests the following participate:
   • 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, such entity must be represented by an authorized director, officer, or employee of the organization.
   • 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 at Mediation, or which requires ratification of such board or entity after mediation, at least two elected or appointed members of the board of directors, trustees, council, or governing body should attend.
   • In the case of a board, governing body, or other entity which cannot delegate final, absolute and binding decision making authority to its representatives at mediation, or which requires ratification by such board or entity after mediation, any agreement by the representatives present at mediation should constitute their personal commitment to: (i) make an unqualified recommendation of settlement to the board in open session of such board or governing body, (ii) make or arrange for a motion, or second a motion, for approval of the settlement, as the case may be.
   • Authorized representatives of all carriers providing insurance coverage for damages alleged in the dispute.
   • The failure by parties and their counsel and representatives to have sufficient authority to settle at a mediation wastes time, is not conducive to effective dispute resolution, and often further polarizes the parties. Please respect the process.
6. Parties Responsible for Negotiating Their Own Settlement. The parties understand that the Mediator will not and cannot impose a settlement in their case. The Mediator, as an advocate for settlement, will use reasonable efforts to facilitate the negotiations of the parties. All participants will consult with their own counsel, who shall be responsible for reviewing and counseling with their clients regarding the advisability of entering any settlement and the terms of any settlement reached.
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 (“ODR”). If the Parties have requested the use of ODR technology like Zoom or teleconferencing, the parties acknowledge that they have made their own inquiries as to the suitability and adequacy of ODR, including any security, privacy, or confidentiality risks and request the Mediator use ODR.
8. COVID-19 Protocol: By participating in an in-person mediation session, the participants agree to (i) abide by whatever pandemic protocols may be in place at the office hosting the mediation; (ii) not attend the session if they have any virus symptoms, and (iii) disclose that they have been exposed to the coronavirus within the two weeks preceding our session. Counsel at the host firm is requested to let all participants know of any office pandemic protocols a few days before the session. The Mediator has been fully vaccinated. So, absent a contrary protocol from the host office, the Mediator will likely not be wearing a mask during the mediation unless circumstances on the date of our mediation warrant such or a participant requests it. It is possible that mediation participants may be asked by others about their vaccination status and, upon reasonable request of any participant, they 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 a mediation, please share basic information on the claims and demands with one another and the Mediator in advance. You are also encouraged to share your confidential view of the matter with the Mediator by the Friday before your mediation. That will allow the Mediator time to read submissions over the weekend and call with any questions before the mediation. Those conversations will likely continue through the mediation, so please do not be surprised if the Mediator is talking with others as you arrive for mediation. Do not feel constrained by any particular form of mediation statement. You know your case and what will help the Mediator help you settle the dispute. Consider sharing prior settlement discussions, strengths and weaknesses of the parties’ positions as well as your assessment of probable outcomes of the matter (best to worst). Observations about the personalities involved in decision-making may also be helpful.
10. Privacy and Confidentiality. Notice: In the event that the applicable dispute resolution rules of the jurisdiction controlling the mediation shall provide more or less privacy or confidentiality than these Rules require, the parties agree that the rules or laws requiring greater privacy and greater confidentiality shall 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 the permission of the parties and with the consent of the Mediator after agreeing to these Rules. All information disclosed to the Mediator in 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” shall include all pre-mediation communications with the Mediator and with other parties, representatives, and counsel regarding the mediation, all activities associated with the mediation session, and all post-mediation communications between and among the parties and Mediator associated with any ongoing effort at settlement. The Mediator shall not be compelled to divulge such information or to testify in any proceeding or judicial forum. Any party that violates this Rule shall be obligated to indemnify and hold the Mediator and other parties harmless from all cost and expense associated with resisting any effort to compel such testimony or disclosure. The Mediator will promptly advise the parties of any attempt to compel him to divulge information received in mediation. Notwithstanding the foregoing, the Mediator may provide executed copies of this agreement or any mediated settlement agreement to any other participant in the mediation. In an effort to use your time wisely and explore matters more fully, the Mediator may use private caucuses and may communicate with counsel before the mediation. When a party or counsel meets or communicates alone with the Mediator, he or she will clearly inform the Mediator what statements or documents are to be considered confidential as to other parties to the mediation.  Unless otherwise stated, information not designated to the Mediator as confidential may be shared with other parties and counsel to the mediation. The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial or other proceeding:  (a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute; (b) admissions made by another party in the course of the mediation proceedings; (c) proposals made or views expressed by the Mediator; (d) the fact that another party had or had not indicated willingness to accept a proposal for settlement made by the Mediator; or (e) mediation presentation exhibits, PowerPoints, charts, graphs, summaries, reports, etc. unless such information is otherwise discoverable. Counsel shall advise the parties that this mediation is ongoing and each of them shall be bound by these Rules. Plaintiffs’ counsel may further advise putative class members only that there are ongoing discussions among the parties relative to unresolved issues in the matter. The parties and their counsel shall make no statement of any type to any other third-party regarding the mediation. If any portion of the mediation is conducted ODR, no one other than a disclosed participant will be allowed within earshot or able to view any video. If anyone is inadvertently able to hear or view an exchange to which they are not intended participants, that user will immediately disconnect and notify the Mediator. The parties agree that these provisions shall be broadly construed and do not limit any additional protection available to mediation, 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 or otherwise capture, by any means, any portion of the mediation or any of the communications, actions, or events that take place during the mediation, including any video, audio, or chat feed.
12. No Service of Process at or Near the Site of the Mediation Session. 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 at Mediation Does Not Constitute an Appearance or Contact with the Jurisdiction in Which the Mediation Session is Held. Participation in, or attendance at, the mediation shall not constitute an appearance within the locale of the mediation or contact with the locale of the mediation for purposes of determining whether or not a person or entity is subject to the jurisdiction of, or the laws of, the courts for such locale. Attendance shall be considered a “Special Appearance” for mediation purposes only.
14. No Guns or Weapons. Whether you are a holder of a license to carry a concealed handgun or not, please consider this notice that you may not enter this mediation with a gun or weapon.
15. Settlement of Fewer Than all Issues or by Fewer Than all 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 become involved in “settling around” one or more parties, or in facilitating agreements between multiple parties to the exclusion of others. The Mediator’s obligations of confidentiality may preclude the Mediator from advising a party that such discussions are ongoing.
16. Settlement Agreements. The resolution of complex disputes seldom involves just the payment of money in exchange for a release. The drafting of terms of some of these non-monetary points often requires skillful drafting beyond a simple mediated settlement agreement. The parties are encouraged to draft and bring to the mediation written settlement language to accomplish any non-monetary settlement points. A lawyer, acting as mediator, does not violate the Rules of Professional Conduct by preparing and providing to the parties a draft of a written agreement that memorializes the terms of the parties’ settlement reached during the course of the mediation, or by suggesting additional terms for inclusion in the draft agreement. It is the responsibility of the parties and their counsel to carefully review such language and adopt the final language and 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 nor giving legal advice by asking questions or making suggestions in the course of mediation. No participant will rely upon any comments, statements, observations, or advice of the Mediator in connection with entering into any settlement agreement or any related documents.
18. Termination of Mediation. The mediation shall be terminated: (a) by the execution of a settlement agreement by the parties; (b) by declaration of the Mediator to the effect that further efforts at mediation are no longer worthwhile; or (c) after the completion of one full mediation session, by a written declaration of a party to the effect that the mediation 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 by a mediator to settle a dispute. The mediator’s proposal is made on a blind basis; the parties are asked to accept or reject the terms as proposed, with no modification or counteroffer, within a specific time frame. Proposals do not reflect the Mediator’s opinion of the settlement value of the case, arbitrate who is right or wrong, or assess what would be fair. Rather, it represents a set of terms that may be within the “reach” of all of the parties, although beyond the preferences of any party The Mediator may decline to communicate qualified responses, (i.e. “No, but I would pay $ x …).
20. Reporting to Court. Upon the conclusion of the mediation, the parties will make any required reports to a court. If the parties do not timely report or a court requires the Mediator to report, the report will indicate whether the matter settled or not, mediation continues, 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 guidelines of ethical conduct of such authorities and organizations. Almost all of the Mediator’s engagements are by agreement of the parties and not by court appointment. Accordingly, the Mediator may or may not be certified or qualified under the applicable Laws or Rules of Court for Court Annexed Mediation in a given case. Unless such laws or rules prohibit such a waiver, all parties and their counsel participating in the Mediation waive any objection to the Mediator’s lack of qualifications or certification and agree that the absence of such qualification or certification will not impair the confidentiality and privacy of the proceedings, nor invalidate any agreement reached in the mediation.
22. Fees and Expenses. If no fees were quoted and agreed upon in connection with the scheduling of the mediation, the Mediator’s fee schedule at the time of the mediation shall apply. Counsel for the parties shall be responsible for payment of all fees and expenses. If Counsel does not choose to be responsible, Counsel should so advise the Mediator in advance of the mediation, in which case an advance deposit from that Counsel’s client will be required prior to mediation. Generally, each entity represented by counsel shall pay a per party rate and share 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 No. is 74-XXXXX. A Form W-9 is included with the confirmation and is always 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 the follow-up, collection of signatures, etc. For purposes of confidentiality, all such persons shall be considered as Mediators of the subject dispute, with the same obligations to maintain neutrality and confidences, and with the same privileges of confidentiality applying to communications by and between those persons and participants in the Mediation.