Conflict Resolution|Mediation

Energy Sector Mediation

While meeting in Houston, how can mediators not assemble a program on “Energy Mediation in the Energy Capital”?  Pierre-Jerome Abric, General Counsel Litigation to the French company AREVA, moderated a panel including Murray Fogler, a trial lawyer in Houston; Dick Watt, an attorney/mediator from Houston; and Raymond Albericht, Vice President, Litigation, at Enterprise Products Operating Company in Houston.  Thus we heard from two providers of mediation and two users.

Mr. Albericht distinguished energy mediation on two grounds – first, the selection of the mediator involves more topic-specific criteria.  Second, the mediation process takes place among long-term players in a comparatively small world, and disputes should be resolved without “burning bridges.”  That said, noted Mr. Watt, the mediation process itself is not unique in the energy field.  Mr. Fogler’s sole criterion for selecting the mediator is that the other side is comfortable with the selection and finds her credible.  He has no problem with his adversary’s deciding who will mediate.  “I just want to make sure they will listen to what the mediator has to say.”

Mr. Watt emphasized that, in mediation, he does not want to spend time explaining a gas contract or the regulatory framework; he would hope the mediator would already know that and can focus on the specific problem.  Mr. Fogler, on the other hand, wants someone with life experience and sagacity because, in his experience, the dynamics of a mediation succeed or fail through human interaction, not because of the pressure of legal concerns.  Mr. Albrecht reported that his executives often seek non-attorneys, such as oil and gas engineers, as mediators.

Mr. Watt values the willingness of a mediator to point out legal weaknesses of a position.  He expects a mediator to press a party on the procedural or substantive weakness in their argument that counsel, either intentionally or unintentionally, has failed to convey to the client.  The audience noted that this enters into an area of nuance – while everyone appreciates the mediator’s correcting the adversary’s misapprehension of the law, one is less sanguine when the mediator inserts a view that is different from the advice one has given to her own client.  And there is always the risk of being perceived as offering legal advice.

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