David Calvillo has been a certified mediator for 10 years, and he is also a CPA and trial lawyer. At times, mediation of disputes and service as a “pure neutral” in arbitration and receivership cases represents up to 60% of his practice at Calvillo Law Firm, PLLC. The calmness the attorney conveyed when talking to VBR’s editor suits a man committed to conflict resolution.
Q Where do you start with a mediation case?
A Mediation training teaches us to view things from another person’s perspective and identify their interests rather than the line they have drawn in the sand. Compromise is not a dirty word, but some folks have problems with that term. They equate it with weakness, either of character or the case. So we couch it differently, as adjusting positions or even negotiating. Identifying the objective, what a person really wants to get out of the legal process, is the key to good lawyering and mediating.
Q Does mediation work?
A Greater than 95% of my mediation cases are settled that day or a few days after.
Q Your website lists 10 tips for settling complex cases through mediation and reveals how much preparation is required prior to the parties meeting. What happens during the actual mediation?
A It can be face-to-face in a conference room or shuttle diplomacy with the mediator talking to the parties in different rooms. Most mediators prefer a full day, because there is sometimes a seduction process. Sometime the parties can’t hear each other — money clouds their vision or they have been married for too long. Any number of issues impede their ability to proceed on their own. The mediator helps them bridge the gap.
Q Is it difficult to become a mediator?
A The recognition of the importance of mediation has led to more people holding themselves up as mediators. The 40-hour training is just the start. To be a credentialed mediator, you have to commit to continuing education in mediation specific training every year. I hold myself to that standard. The Rio Grande Valley has only four credentialed mediators. I try to nurture the education of mediators and tell colleagues who ask about sources of good professional development and training.
Q Why does it seem more cases are going to mediation?
A Local courts are in the trenches and see the value of mediation. It reduces court backlogs and court expenses. Judges refer cases to mediation before they go to trial and assign a mediator if they see fit. Mediation is typically required in federal and state litigation.
Q What is the outcome of a mediated case?
A If properly settled, a case of mediation will result in an enforceable written agreement that may be filed in the court.
Q Judges encouraged you to become a mediator. Why?
A Maybe they knew my personality was amenable to the field, or they saw my experience would be particularly useful. I like to think when I get appointed as a receiver, mediator or arbitrator, it’s because I bring many skills to the task: as a CPA, a trial lawyer and a certified mediator.
Q You have joked that you can’t hold a steady job, so you switch between being a trial lawyer and a pure neutral handling arbitration, mediation and receiverships. How do you balance such different approaches to the law?
A I believe being a mediator has helped me be a better lawyer, a better negotiator. I know it gives me more credibility as a mediator that I still talk to juries and know possible outcomes. I enjoy doing both and the change of pace between them.
Q Can people go directly to a mediator without a lawyer?
A They can direct their attorney to seek mediation before filing a lawsuit. Sometimes the parties just want somebody to listen to them and hear their side of the story. Instead of a day in court, a day in the conference room here may be all that’s needed.
Q Why is there resistance to mediation?
A Lawyers are advocates and trained in the adversarial system. Many like to do battle and enjoy the confrontational aspects of a trial. The counselor-at-law part of being an attorney is sometimes overlooked. We in the legal profession should pay greater attention to the counselor part and inject some reason into the process.
Q Is mediation a good path for business disputes?
A The prudent business owner sees mediation as a logical, reasonable way to try to resolve a dispute without investing the time, money and physic energy required of going to trial. In Spanish there’s a saying: es mejor un mal areglo que un buen pleito. Better to have a bad settlement than a good fight.
This story by Eileen Mattei appears in the November 2015 edition of Valley Business Report. For more stories from the November edition, click on the “Current & Past Issues” tab.