The Closer

A Mediation Newsletter May 2011

A Mediator, Not a Judge
by James Rainwater

During mediation sessions, I am frequently presented with questions about how judges would rule or how juries will decide particular issues here in Bexar County. As I am not clairvoyant, I defer and direct the questions to the parties' attorneys. I ask the attorneys what their experience and history indicates. Yet, the parties are always warned that there is no such thing as a sure thing when it comes to these court decisions.

With the recent tumult in our local courts, it is a brave person who can prognosticate as to what the end result will be in any variety of scenarios. Parties want to receive solid answers regarding their chances in court. However, the changing dynamics should be taken into account.

According to Wikipedia, San Antonio has grown by over 16% since I moved here just over twelve years ago. On a twelve-member jury, that equates to roughly two recently relocated residents sitting and rendering a decision. Going back twenty years, San Antonio experienced a population growth of over 38%, which equates to nearly five jurors of a panel of twelve, who are relatively new to the county.

Combine these changing demographics with a new slate of judges, and the ability to predict legal outcomes diminishes more with each election year and with each national census. At mediation, attorneys may offer their expert opinions regarding potential outcomes. Yet, there is no sure-fire answer that can be given to the disputants.

Ultimately, the mediator is just that, a mediator -- someone who is neutral, facilitative, and analytical. Parties should rely on the mediator to guide them to resolution, not to render a legal opinion that may or may not be accurate. Part of the desirability of mediation is that it allows the parties to think outside the box, outside the courtroom, to create their own settlement. The mediator should help them achieve that result and not dictate it.

Rainwater Law