From Courtroom to Conference Room: The 4 C's of Mediation with Felicia Harris Hoss

Welcome to Studying Law Around the World. I'm Claudio Claus. In each episode, I talk with lawyers, law students, and professors from different parts of the world to talk about legal education, careers, and what the profession looks like in real life. We talk about the hard parts, the surprises, and the decisions that shaped their paths. Whether you're planning to study abroad, thinking about working in another legal system, or just curious about how law works around the world, this podcast is for you. Hello, everybody. Welcome to another episode of Studying Law Around the World. Today, I have the opportunity to speak with Felicia Harris Hoss. She has 28 years of complex civil and commercial litigation, negotiation, mediation, and arbitration experience. She has been recognized for many years and Best Lawyers in America for both her commercial litigation and mediation practices. And I'm very happy to be hosting her today in the podcast. Thank you so much for making the time to be here for Alicia. Oh, I'm delighted to be here. Thanks for having me. I really appreciate it. And for listeners who might not know you, yeah, I I'd love for you to introduce yourself and share a little bit about your path and and your practice. Oh, absolutely. Well, thank you for the introduction, Claudio, very, very kind of you. And so I am now a full time independent mediator and arbitrator. I'm, I'm based out of Houston, TX. Prior to pivoting my practice out of the courtroom and into the conference room, I like to say I spent the 1st 2 plus decades of my career trying and litigating complex commercial disputes for publicly traded, privately held companies and their executives and a range of industries like energy, healthcare, financial services, transportation, maritime, it goes across the board. And in addition to that, I also served in the public roles, elected to one of our local city councils. And so I had a lot of experience working with construction companies and developers and engineers, and we called municipal utility districts, the development of housing complexes and those sorts of things. So I've had a very diverse background. And, and around 2020, I was pivoting, I pivoted my practice out of the courtroom into the conference room during the COVID era. Quite frankly, it was a period of time when I'm used to be that when someone would come into my office with a problem, a legal problem, we would have a conversation about expectations. And one of those was always the question presented, how long to wait till we get to trial? How long until we get a resolution, how long until we get in front of a jury? And that typically was responded by with this, you know, maybe a year or year and a half, we'll get our first trial setting. We might have to get that bump because, you know, we in Texas to a system whereby and there will be many cases set for trial on the same day. So maybe in a couple years we'll get to the courthouse on the during the COVID era when the courts essentially shut down for a period of time and cases and and backlogs grew, that pivoted to about three to five years for your first trial setting and sometimes even longer. And if you didn't get refund your first trial setting, then you certainly were going to be in the system for a lot longer period of time. And all that obviously amounts to a lot of money, a lot of stress, a lot of uncertainty, broken relationships and a lot of things that people don't want in their life. And so I felt like having worked with some really tremendous mediators as an advocate, that I'd like to take my experience and push it to the neutrals arena and see if I might be more effective in helping party resolve their conflicts there. Very, very interesting. I don't think I had heard the, the term neutrals before. So I'd love for you to tell us a little bit more about, you know, this ecosystem of, of arbitration, mediation, of being a neutral. I understand that you've took all these years in your career preparing for trial, even though not every case got there. And, and I wanted to hear a little more about, you know, how early dispute resolution really played a role. Great question. Well, a neutral, So what I represented clients in the courthouse or in an arbitration, you know, as an advocate, I took a position, I advocated for their success, for their win, whatever that might be. In her role as a neutral, as a mediator, for example, I use that first. You know, my job is to listen very closely and help the parties understand their conflict as best they can and to help them negotiate a resolution. In that role, although I am a lawyer, I don't, I'm not a lawyer in that role. My role is really as a facilitator and I don't have any control over the outcome. My, my sole mission as a mediator is to stay neutral, to stay impartial, to stay independent, to help the parties think through their own resolution and to have what we call party autonomy, control over how the, the dispute resolves. In fact, I, in my opening presentations to parties, especially those who have never been through mediation, I highlight what I call the 4C's of mediation, which is confidentiality, something you don't get at the courthouse control something else you don't get at the courthouse. I'd like to summarize or analogize that this way. You know, with the courthouse, the judge or the jury are in control. They get to make a lot of decisions about some very important matters that are going to impact you and not them, but they are in complete control of the courthouse. Here in this mediation process, the parties are in control. They get to make all of the decisions. And if they decide to resolve the cake on terms that are appropriate for that, that's their call. If they choose not to resolve the case on free to them that too. And if the case doesn't get resolved and the constantly trying that out to some strangers, can you hear that in the back? Can you hear the? Can you hear anything in the background? Out the noise, but it it did blend your voice a little bit, but I think it was good enough where we could understand everything you just said. So now where it's like cut, cut the. Alright, so let me finish what I was saying about the neutral thing. So when when parties are in, in mediation, addition, in addition to having control over the outcome, right, they also have creative outcomes that they wouldn't have at the courthouse. So this is the third C right? At the courthouse, the judge or even an arbitrator, they are very limited in what kind of remedies they can apply to the law and the facts of the case, right? Most of the time it's money. Most of the time a party wants to either be paid money or not to pay money. But sometimes it's injunctive relief or it's a declaration or things of those of those sorts. In mediation, a lot of times the resolution pivots and gets done on something completely unrelated to money. And of course, the mediator can't make a declaration. It turns on a business deal being modified or a payment plan being available or an apology being given from one partner to another partner or things that are not intuitive to the court system, the things that are important to the parties. And so that creative aspect makes mediation something very helpful and something that a neutral can provide because a neutral can sometimes help you think up those things after you spent time with your lawyer talking about what are my chances of the courthouse neutral might go? Besides what you can at the courthouse, what else is important to you? Why are we in this conflict this long? What do we need to resolve? And then last is certainty right? Even if you win a trial, we all know there's always the chance for appeal. And so even if you were in trial, you could still, at least in our system in Texas, spend another two or three years waiting for the outcome to be resolved. And so add that on to the extended period of time already and being a neutral going to to mediation, working with someone to help you stay in control really provides value that you can't get anywhere else. And so an arbitration for those who may not be familiar with arbitration is is essentially serving like a private judge. I'm an arbitrator and a case between parties. A very similar but very truncated in most instances try to be cost effective process is applied. The parties have more control over the kind of information exchanges they're going to have. They don't go to the default of the Rules of Civil Procedure at the federal level or at the state level or wherever they are. They have the ability to shape that with the help of the arbitrator and then have a full hearing with testimony and an award issued, which then can be confirmed and turned into a judgment under which the parties can take to the courthouse and then in Texas to the sheriff to have executing upon. Very, very interesting and, and very interesting as a, as a career path as well as we as we go through the podcast today, I will ask a few more questions on that. I also wanted you to ask a little more on the topic of how this plays a role and what early resolution means. I've read that you played the role in working behind the ABA resolution 500, which has to do with, with the profession formally supporting early mediation. And I wanted to ask you a little more about this process. I about, you know, the importance of early mediation as well. I think I understand that the US and I believe that Canada is not too different in that sense, is looking into going for early mediations or, or looking into, you know, looking at these possibilities before really going into the court system and and having all the problems that you just outlined. Well, yes, the American Bar Association just to set the stage for kind of what happened in February of 2024. I was a part of the team at was the American Bar Association section of dispute resolution. I was Co chair of the early dispute resolution committee at the time. We went and made a presentation to the House of delegates if they're mid year meeting and resolution 500, which was resolution for early mediation and it reads resolved that the American Bar Association urges lawyers and all interested parties to increase the informed and voluntary use of early dispute resolution, which is party directed non adjudicative approaches to resolve disputes in a time efficient and cost effective manner. And that includes, but it doesn't limit itself to direct negotiation, mediation, ombuds work and so on. And so this resolution, those spearheaded by myself and my colleagues on the EDR committee and supported Co sponsored by two other sections of the American Bar Association, the Section of State and Local Government and the Senior Lawyers Division. In addition to that, it was supported by the ABA Business Law Section, the ABA Section of Labour and Employment Law, the ABA Young Lawyers Division and Division that your colleagues may be very interested in, and the ABA Section of Government and Public Sectors Lawyers. And the process for getting the resolution to the House was about a two year process whereby we had to write a report and present the report to our section and have it approved and supported. And then we we went to other sections like the sections I just listed and talked with their leadership, presented it to them. And that feedback, took that feedback in, modified to report, modified the language of their resolution work collaboratively with other sections of the American Bar Association to present it to the House of Delegates. And part of your question is, is, you know, what's, what's the significance of that? The significance of that is this, the American Bar Association has obviously membership across the country and even in Canada, there it is. Now when they adopt A resolution like this, it becomes the policy of the American Bar Association. So the American Bar Association now has a policy of encouraging lawyers to increase their use of informed and voluntary early dispute resolution. In other words, think about putting your clients in a position to take advantage of those 4C's earlier in the life cycle of a lawsuit. And this is significant in the sense that for years and years and years, a lot of ports were having to order parties to go to mediation, but they wouldn't go voluntarily, right? And who knows why that is, but there are lots of seal clear articles and journal articles that have studies behind them that suggest that a lot of the decision about when and if and where to go to mediation is made or based upon the advice that lawyers provide to their clients, the advocates provide to their clients. And so the part of the value I believe in the resolution is it sort of says it's OK lawyers to go to mediation early. In fact, we urge it. And there are a lot of good reasons for it or are essentially 3 objections to it, which I'm happy to just briefly talk about if you'd like. But a lot of good reasons for it is it helps the courts manage their documents better. It helps party stay in control and it by those two things being byproducts of it, it allows the courts to not have to address a lot of cases hopefully, and that clears the docket so that more cases can be tried in the future. We know that about 1% or less of all cases that are ever filed at the courthouse going to trial. So, you know, we know some get resolved through dispositive motions, but most of the cases that go to the courthouse are going to resolve through some sort of a settlement, whether it's direct negotiation or mediation. And so, you know, spending the time and the resources, that money to go through a discovery process to turn over every stone for a trial, which may never happen seems a little bit backwards. It seems like you would want to find out as much about the case early on and open the dialogue to see if you might be able to resolve it before those resources, those emotions that time is is invested. And So what this does, this resolution is, is sort of says, you know, it's not, it's not a novelty anymore. This is something we should be thinking about. And I was thrilled to be a part of it. Fantastic. I love that you brought right in the beginning of a very interesting subject, bringing up how carrying on litigation for a long time really can, can be detrimental for a lot of things. But, but I, I really enjoyed that you mentioned it specifically relationships. And thinking about that. I, I think that one of the points that I have read on your website and, and all of that talked a little bit about employment disputes, how much those can affect, you know, morale, trust, reputation, and all of that. And, and I'm curious to hear a little bit about, you know, how does that work in that setting and help to, you know, in a way protect the, the workplace culture, trust and, and relationships after all. Now, and employment disputes are very unique in the sense that, you know, our relationships to our careers sometimes define who we are rightfully, wrongfully or indifferently. And so people who are involved in employment disputes, they, they, they're not looking for conflict. They really want resolution, right? And from the employees perspective, the, the dispute is really usually over relationships, right? I've been discriminated against, I've been harassed or whatever, or, or even been injured on the job, right? And it's that relationship about that drives the conflict in most instances. And so from their perspective, if you had to wait two or three or four or five years to go all the way through a court system before you got your day in court, which you do, if you go through the litigation process, in most instances, you know, you've already moved on to another job. You may have already moved on to another career, or you may have moved out of the state. You know, there's a lot of decisions that are going to be made in that time period that impact your career that might be paused or affected by a prolonged dispute. And so from the employees perspective, an early mediation provides them an opportunity to have their day in court, so to speak, right? You, you have the opportunity to speak confidentially to a neutral and to the other side and say, This is why I'm upset. This is what I think from my perspective, you did wrong and this is what I hope to achieve through the process of resolution. From the employers perspective, an early mediation gives them a chance to set a culture that we we really value all of our employees. And if we have made a mistake or if there is something that we could improve upon, this is our opportunity to do it. And so the timing allows the employer to potentially fix something before it gets perhaps broken more or misunderstood by the other employees who see this going on and are wondering, what are they doing there with Jim Bob, right, or Sally Sue? How are they treating them in this relationship? So it helps the employer, you know, improve upon their own workforce. And in many instances, and that's just one example, because we know that there are class action employment disputes too. And, and those are a different animal to speak about. But let's just say this, you know, employees know they have friends that they work with. And if they end up suing the company or they end up feeling they've been wrong, they're going to talk to their friends. And so if you can help build A level of trust behind that, that's that's very beneficial to both the employer and the employee. So, yeah, I think employment law is one of those areas of law where almost any case, there are some exceptions, but almost every case in early dialogue with a neutral, in a confidential setting in which everyone is able to be heard and is tremendously valuable. And there are many cases, I have to say, when an early mediation is not going to be useful. And in those instances, you know, you don't want to spend the time and resources. And it may be that, you know, it's a case that the company just needs a legal decision on because it's something that in the marketplace, it's unsettled and the marketplace needs to be clear on it. Most cases are not that. And so you know you have to choose which path is best for your client. Very, very interesting. I appreciate that you brought up this point of having to see what is best for the client and all of that. And something that as I was preparing for the podcast today, I was thinking about, you know, the, the litigation strategies and, and also principled negotiation and all these different points that that correlate. And I can imagine that some lawyers might worry that moving too early can also mean losing leverage. So it's interesting. So there is some circumstances where where, you know, an early structure could actually help, but but some other ones where that might be detriment, detrimental to the to the cause or to, you know, the decision making that's going on. So I find that very, very interesting. As we go towards the end of today's episode, Felicia, some of my audience here really is early career professionals. I love that the podcast also gives me an opportunity to ask people what like what wonderful roles you can create and, and what a career you can make. We have a law degree. We spoke briefly before about, you know, how being a mediator is something that often is pursued by more senior professionals because really you have that experience. You have, you know, seeing all the points throughout different lenses and all of that. But I'd love for you to to tell us a little more about, you know, maybe young lawyers, if you want to become a mediator, this is something that you might want to do. Or also lawyers, maybe you want to explore using a mediator soon in your career as well to serve your clients better. So I'd love to hear your thoughts on that. I love this question. You know, when I first started my career, I was clerking for Chief Justice Casey at the 2nd Court of Appeals in Fort Worth. And at that point in my career, I really wanted to be an appellate lawyer. I really wanted to be someone who, who drafted briefs and made arguments to the appellate courts. And he told me in, in that first year as a, as a licensed lawyer, that to be a really good appellate lawyer to help review the, the work of trial lawyers, you need to 1st be a trial lawyer. And so get in the trenches, learn what it takes, think about the, the case and the decisions that are being made in real time, and that'll make you a great appellate lawyer. And so I did. I went to a boutique law firm in Houston and, and worked with some of the best trial lawyers in our country and we tried cases, a lot of them, and we mock tried cases and we worked with some of the best companies in, in the country. And so through my career, you know, I became a partner in national law firm. And, um, actually several national law firms are in the Houston area. And so I think the best advice I can give someone who is interested in becoming a neutral is the same advice that I received as a young lawyer, which is first, you know, learn the craft of that which you want to help advise upon, help facilitate and negotiation on. Because that's going to give you the street cred, the ability to speak with authority, the ability to speak with clarity, the ability to speak with persuasion when the other side or whatever needs to hear another voice in the conversation. So that's the first piece of advice I'd give us. Do the work first and then see the opportunity to help others resolve their problems. But the other thing I would also find, you know, I wish I had known sooner. And that is the role of in-house counsel and how they interact with their clients internally. I always tried to give as a outside counsel, I've tried to go the extra mile, right? Try to give better value, better service. And it's very competitive in in and of itself. But that was always my mantra. And I always remember that, you know, we as lawyers need to always focus on the fundamentals, whether it's in the trial or in an arbitration or in a meeting with a client, focus on the fundamentals. What is most important in that moment and for us. And The thing is, is that they want resolution and that the last case I tried was a week and a half long federal case. And we what we won the trial was a hard fought battle, good firms on both sides and we were very, very happy with the outcome. A year later, Fast forward, I'm in my office. I have completely forgotten about that case. And a huge bouquet of flowers is delivered. And my secretary says to me, you won't believe who these are from. And I read the card and it was from a very young and up and coming energy executive who's one of my clients in that trial. And the card read something along the lines of a year ago today, you saved my career. Thank you. And that really impressed upon me something that for, you know, years and years and years I've been doing naturally and that was helping them out. But he really impressed me at 1 moment that this experience that he had with me as a lawyer in a courtroom was super impactful. So much so that he remembered the anniversary of the day the jury came back with a verdict. And so that's something that you don't get from being, you don't necessarily appreciate younger in your younger years, you get it in your older years. And so one thing I like to share with lawyers is to always remember our deliverable, whether you are on the bench in an arbitration, in an advocate's role or in a neutral's role are deliverables resolution. And so the more effectively cost efficiently time efficiently, the way we can do that, the better value we're providing to our clients. Amazing. I really appreciate you taking the time to come in the podcast, share a little bit about your career and insights, and thank you all for tuning in and listening to today's episode.