Category 2: American Arbitration Association

I am a commercial lawyer with the firm of Hirsch & Westheimer, P.C. in Houston, Texas. I have been with the firm since 1966. In 1988 I was elected the president of the firm and still serve in that capacity.
I was trained originally in mediation in 1990. Since then, I have regularly and consistently mediated disputes. For the most part the disputes are commercial disputes; however, I have mediated a number of tort cases involving personal injuries. I mediate cases that are pending in court as well as pre-suit disputes. In all of my mediations I am selected by agreement of the parties and their counsel. I work full time and spend approximately 50% of my time as a mediator and arbitrator and 50% of my time representing clients in resolving commercial disputes and in negotiating and documenting commercial transactions. Although I have tried cases in court and before arbitration panels, if I am representing a client in a dispute that cannot be resolved by agreement, my current practice is to assign a trial lawyer in the firm to assist in preparing the case for trial and in trying the case. I regularly attend mediation training and think that my continuing to practice law helps me in my mediation practice. I believe in the mediation process and have actively worked in the alternative dispute resolution community. I was on the first board of directors of the Association of Attorney Mediators and later national president of the organization. I have also served on the council and as Chairman of the ADR Section for the State Bar of Texas. As seen below, I am a member of many ADR organizations and have affilation as a mediator on several panels.

Commercial disputes involving, among other areas, complex commercial, corporate, partnership, limited liability companies, other business entities, banking, employment, securities, real estate, energy, bankruptcy, health law, and environmental issues.

More than 1,000 commercial disputes involving, among other areas, complex commercial, banking, employment, securities, energy, bankruptcy, health law, and environmental issues, including contract and damage issues between energy companies; breach of representations and purchase price adjustments in mergers and acquisitions; real estate disputes; disputes between medical providers; securities cases; wire transfer cases; corporate squeeze out and shareholder oppression cases; accounting and legal malpractice.

I help the parties focus on the realities of the dispute by assisting them in evaluating their respective legal positions, by reminding them of the inherent risks and expense associated with litigation, by exploring options to litigation and facilitating communication to arrive at a compromise of the dispute. It is my belief that the parties look to the mediator to be strong, but impartial, by urging them to carefully and separately make a cost benefit analysis of settling the case or continuing with the dispute. Mediation is a process, not an event, and I must make the decision during the mediation when to let the process work on its own or to apply catalyst to keep the parties in the negotiation and press them to make difficult decisions that they are reluctant to do. I generally attempt to have a confidential discussion with counsel prior to the mediation. In addition, I request a confidential written statement summarizing the case, any special considerations and a frank statement of what they believe will be necessary for settlement. I begin the mediation with a general session in which all parties and counsel have the opportunity to make a presentation. During the general session, I lay out the ground rules and obtain a commitment each party is there in good faith, have authority to settle, and grant me the right to determine when to declare an impasse. After the general session, the parties break into private caucuses. During the caucuses, I reinforce my impartiality; review with the parties the strengths and weaknesses of their case, their estimate of the likely outcome, the costs through litigation and the time estimate for litigation through appeal. During those sessions, I act as devil's advocate to illustrate the uncertainties of litigation and the benefit of being in control of resolving the dispute. Offers and demands are exchanged until the parties reach agreement at which time a term sheet or settlement agreement is prepared and signed.

IMI Code of Professional Conduct; American Arbitration and American Bar Associations Codes of Professional Conduct; Standards of Practice and Code of Ethics of the Texas Mediator Credentialling Association.

IMI Professional Conduct Assessment Process

Malpractice insurance through Hirsch & Westheimer, P.C.: Carrier: Darwin National Assurance Company $2,000,000 maximum limit of liabiity per claim and $2,000,000 maximum aggregate limit of liability for all claims.

Malpractice insurance through the Association of Attorney Mediators: Carrier: Underwriter at Lloyd's London $250,000 maximum liability per claim and $2,000,000 maximum aggregate limit of liability.

American Arbitration Association Panel of Neutrals (Large Complex Commercial Case Panel); CPR International Institute for Conflict Prevention and Resolution (National Panels: Accounting, Financial Services and Energy); American Health Lawyers Association Panel of Neutrals; FINRA Dispute Resolution Panel of Neutrals; Texas Mediator Credentialing Association (Credentialed Distinguished Mediator); Association of Attorney Mediators; College of Commercial Arbitrators (Fellow) State Bar of Texas (Past Chair Alternative Dispute Resolution Section).

$1750 per party for a full day of mediation, beginning at 9:30 am with a working lunch. If there are more than 4 parties the fee is $1500 per party.

Yearly training by Association of Attorney Mediators, the State Bar of Texas ADR Section and Texas Mediator Credentialing Association; Negotiation Workshop, Harvard Law School – 1993; Advanced Mediation Training, Attorney-Mediator’s Institute, Dallas - 1992; Basic Mediation Training, Attorney-Mediator’s Institute, Dallas.
Yearly ACE courses presented by American Arbitration Association and CLE courses for the State Bar of Texas ADR Section. FINRA Dispute Resolution Arbitrator Training; Panel Member Course and Examination, Chicago; AAA Commercial Arbitration Training Workshop II, Dallas; Chartered Institute of Arbitrators, North American Branch, International Commercial Arbitrators Basic Training Course and Examination; AAA Commercial Arbitration Training Workshop I; American Arbitration Association Basic Arbitration Training.

“Facilitative Mediation,” Alternative Dispute Resolution Texas Style, Texas Bar CLE, Dallas, Texas, October 2007.

“Mediation of Securities Fraud Disputes,” Houston Bar Association, Securities Litigation and Arbitration Section, Houston, Texas, January 2007.

“Delaying Tactics in Arbitration,” American Arbitration Association ACE Program, Houston, Texas August 2006.

“Arbitration Fundamentals,” State Bar of Texas CLE Web Cast, October, 2005.

“Delaying Tactics in Arbitration,” American Arbitration Association ACE Program, Houston, Texas July 2005.

“Mediation of a Bankruptcy Case,” Mediation for Litigators, South Texas College of Law, Houston, Texas, October 2002.

“Mediation of Bankruptcy Disputes,” Oklahoma State Bar Meeting, Alternative Dispute Resolution Section, November 2001

Presentation of Mock Mediation,” National Association of Certified Valuation Analysts, Houston, Texas, September, 2000

“Helping Lawyers See Beyond the Case,” Texas Association of Mediators Annual Conference Training Course, Houston, Texas, February 26, 2000

“Ethical Considerations in Mediation,” 16th Annual Bankruptcy Conference, the University of Texas School of Law, Austin, Texas, November 1997.

“Consensual Settlement,” Association of Insolvency Accountants, 13th Annual Bankruptcy and Reorganization Conference, Dallas, Texas, May 1997.

“Advocacy In Mediation,” The CLE Institute, Houston, Texas, October 1996.

“The CPA's Role in Alternative Dispute Resolution,” AICPA National Advanced Litigation Services Conference, New Orleans, Louisiana, October 1996.

“Evaluative Mediation: Why, When, and How to Manage the Merits,” American Bar Association Section of Dispute Resolution, Orlando, Florida, August 1996.

“Mediation — Five Years Later,” Houston Bar Association Institute, Houston, Texas, October 1994.

“Future ADR Trends and New Concepts: Resolving Disputes: Litigation vs. ADR,” South Texas College of Law, Houston, Texas, March 1993.

“Resolution of Domestic and International Bankruptcy Issues through Mediation,” Conflict Management, A Publication of the Committee on Alternative Dispute Resolution – American Bar Association, p. 19 (Summer 2005 – Volume 9, Issue 2).

“ADR Basics,” Conflict Management, A Publication of the Committee on Alternative Dispute Resolution – American Bar Association, p. 16 (Summer 2004 – Volume 8, Issue 3).

“Mediation of a Bankruptcy Case,” American Bankruptcy Institute Journal, (May 2003) at 12.

“Helping Attorneys See Beyond The Case: Return To Objectivity,” Alternative Resolutions No. 2, p. 13 (November 2002).

Alternative Dispute Resolution with the Resolution Trust Corporation and the Federal Deposit Insurance Corporation,” 9 The Practical Real Estate Lawyer (May 1993) at 27.