Tyler G. Mercer, Senior Counsel, Litigation, at Valero Energy Corporation will be one of the panelists on the Jan. 26, 2011, LexisNexis Web event titled “Early Case Assessment & Resolution Webinar for In-House Counsel & Outside Law Firms.”   To register for the free program, go to http://www.eventsvc.com/litigation/.

Not only is Tyler responsible for managing his company’s toxic tort litigation nationwide, but he has also been a certified mediator.  He shared with me a couple of his insights on ADR.

Q. When do you consider ADR in a case?

A.  I consider ADR as early as possible simply because it opens up a greater range of ADR options to me.  Also, many of my clients, now that I am in-house, are familiar with mediation as it has become a more accepted practice.  In fact, they often inquire as to whether it’s available or when it might be available.

Q.  Are there times when you wouldn’t consider ADR?

A.  I do frequently dissuade my clients from arbitration unless it’s mandated by a contract or other agreement.  That’s my personal preference.

Q.  Why is that?

A.  What happens in arbitration is that you get a binding decision that’s not subject to review and may or may not include the specific reasons behind the award.  In other words, the arbitrator’s decision, for better or worse, is essentially set in stone.   Moreover, arbitration was originally created with the idea of saving money and I don’t know that you necessarily save any money these days given the fees associated with the process and the extensive discovery that routinely takes place in modern arbitrations.  So, when compared with the relatively minimal filing fees associated with going to court, I would rather have the option to seek an appeal at the end of the day if I so choose.  On the other hand, in mediation, you as the participant get to decide the outcome of the case, which is very empowering, and I am a big proponent.

Q.  When do you think a case is ready for ADR?

A.  Discovery doesn’t need to be complete to take a case to mediation or some other form of ADR.  But you do need enough information to assess the case, including the basic facts, damages ranges, relevant documents, theories of liability, historical settlement values for similar cases, etcetera.  I’ve found that a lot of times this information can be obtained without the need for formal discovery.  It’s something to consider on a case by case basis, but some discovery probably needs to be completed before a case is ready for ADR.

Q.  Isn’t there a risk in resolving a case too early?

A.  Some people might disagree with me and say you pay a slight premium in resolving a case early with only a basic understanding of the facts, but my personal feeling is that any “premium” you might pay to resolve a case is often less than the costs awaiting you down the road in terms of prolonged discovery disputes, depositions of corporate representatives, expert fees, and briefing.

Tyler G. Mercer is Senior Counsel, Litigation, at Valero Energy Corporation. Tyler has been with Valero since 2003. Since joining Valero, Tyler has been responsible for managing Valero’s toxic tort docket and overseeing all phases of that litigation nationwide.  Tyler also handles other types of personal injury claims as well as matters involving real estate and project disputes. Prior to joining Valero, he clerked for the Honorable H.F. “Hippo” Garcia of the U.S. District Court for the Western District of Texas and practiced at Akin Gump in San Antonio.  Tyler received his B.A. from Southwestern University and his M.P.A. and J.D. from Texas Tech University.  Tyler is a member of the State Bar of Texas, the San Antonio Bar Association, and the Corporate Counsel Association. He is admitted to practice before the U.S. District Courts for the Western and Southern Districts of Texas and the U.S. Court of Appeals for the Fifth Circuit.  Tyler has also been certified as a mediator by Mediation Training Institute International. The publishers of Texas Monthly recognized him as a “Rising Star” in 2005, 2006, 2007, 2008, and 2009.