What is Mediation?
by Donald Ray Burger
Attorney at Law

The popularity of mediation and other forms of what is called ADR (Alternative Dispute Resolution) has increased recently. The reasons include that (1) it seems to take forever to get to trial, (2) it is expensive getting there, and (3) you can never fully predict what will happen to your case once you are at the courthouse. ADR arose to offer clients a way to save time and money and eliminate some of the uncertainties of trial.

In 1987, Texas passed the Texas Alternative Dispute Resolution Procedures Act. It provides for various types of ADR. They include:

(1) Mediation. Mediation is the most common form of ADR. The judge often orders mediation but, even so, it is non-binding. In the best mediations, the two sides pick a mediator by mutual agreement. Mediators are often, but not always, lawyers. When the mediator is picked by agreement, there is some chance of getting a mediator who is experienced in mediating cases like yours. Sometimes the judge assigns the mediator. The ability to find an arbitrator just right for your lawsuit is then lost. In my experience, both sides are better off selecting their own mediator.

Most mediators charge based on the number of parties. Full-day mediations are the norm, but half-day mediations are often available.

After an opening session where the lawyers make opening statements, the two sides usually go off to separate rooms. The mediator goes back and forth between the rooms relating settlement offers and counter offers, and exploring the strengths and weaknesses of each side's case. Having a client hear a neutral stranger discuss problems the client is facing is usually very valuable. And, believe me, there is hardly a case where both sides do not have problems.

By the end of the day, the case has either settled or each side realizes that full preparation for trial is necessary. The number of settlements produced by mediation is pleasing.

(2) Mini-Trials: By agreement of the parties, informal summary presentations are made by the lawyers and experts for each side before their own representatives and a neutral advisor to define the issues and develop a realistic basis for settlement negotiations. One goal is to get key personnel involved so they can evaluate the strengths and weaknesses of their case. The neutral advisor may offer opinions of each side's case. An advisory opinion is issued which is non-binding unless the parties agree (in writing) otherwise. This procedure is more often used in business disputes.

(3) Moderated Settlement Conferences: This is a case evaluation process designed to encourage early trial settlements. Each side presents its case to a panel of lawyers who render a non-binding opinion. The conference is fairly structured and usually includes a 15-30 minute presentation by each side, followed by 15-30 minutes of questions from the panel. Each side gives a short summation of its strong points. The panel deliberates and then issues its opinion. Moderated settlement conferences have the virtue of forcing lawyers and clients to focus on the major strengths and weaknesses of their case and see how a panel of moderators view the positions. Because the moderators issue an opinion, this form of ADR gives a reality check to clients regarding how a jury is likely to see the case. This often facilitates a settlement.

(4) Summary Jury Trials. Highlights of each party's case are presented to six jurors, who then reach a decision. The decision is non-binding.

(5) Arbitration. The form of arbitration under the Texas ADR is non-binding unless the parties agree otherwise. Often a single arbitrator is used. This procedure under the ADR Act should not be confused with an arbitration under an arbitration clause found in a contract. The ADR procedures discussed here occur in the context of a court-filed lawsuit. Discovery is available, as is a jury if no agreement is reached. Some arbitration clauses in contracts are not so friendly. Discovery may be limited, rules of evidence may not apply, appeal is often illusory and there is not threat of a jury trial to keep everyone honest.

In summary, ADR is an effective way to resolve disputes, assuming both sides can enter into it with the knowledge that a jury trial, with all its uncertainties for both the plaintiff and the defendant, awaits them if no settlement can be reached.

Written by Donald Ray Burger, Attorney at Law
Last revised: May 7, 1996

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