What Are the Mechanics of a Texas Mediation? Perspective of a Ft. Worth Mediator
Texas mediation is a flexible and confidential process where a neutral third party, known as a mediator, assists the involved parties in reaching a voluntary agreement to resolve their dispute. The Texas Civil Practice and Remedies Code allows courts to refer pending lawsuits to mediation, a practice formally known as Alternative Dispute Resolution (ADR). While specific court rules or local rules may exist, the core mechanics of mediation remain largely consistent across the state.
The process typically begins with the selection of a mediator, who is often an experienced attorney. Once selected, the mediator reviews the relevant information and sets a date for the session. Mediation is a remarkably high-stakes, half-day or single-day event in most cases, sometimes lasting an entire day or even longer, with parties arriving prepared to negotiate seriously.
All persons necessary for a decision to settle the case must be present, or available, during the entire mediation session. The parties and their attorneys should commit to a good faith effort to settle the case. The mediator lays the ground rules, describes the process and answers questions in an introductory joint session.
The session is private. No tape recordings are permitted, and no court reporters are present. The proceedings are confidential and privileged as settlement negotiations under the Texas ADR statute and Rule 604 of the Texas Rules of Evidence. After the mediator's introductory remarks, the attorneys will outline the legal and factual issues in the case. Their clients may also speak but are not required to do so.
The mediator will ask clarifying questions to narrow the issues and to determine areas of agreement and disagreement. The parties will typically be asked to state their opening settlement positions. There are no rules of evidence in mediation, only rules of common courtesy.
In most Texas civil cases, the mechanics involve all parties meeting together with the mediator in a joint session before separating into private rooms, or "caucuses," for the bulk of the day. After the plaintiff and defendants have stated their respective cases and areas of agreement and disagreement are delineated, the parties will be separated into different meeting areas for these private meetings with the mediator.
The mediator shuttles back and forth between the private rooms, delivering messages and settlement offers, and working to bridge the gap between the parties' respective positions.
A crucial element of the Texas mediation process is confidentiality. Any communication made during mediation that relates to the controversy is confidential and generally cannot be used as evidence in subsequent court proceedings if the case does not settle. This privilege encourages open and frank discussions, allowing parties to explore creative solutions without fear of repercussions in court.
One of the main purposes of individual private caucuses is to allow a party to ventilate views he or she is not comfortable in disclosing directly to the other party. The mediator gets a greater sense of the true bottom lines of the parties and the interests they seek to protect as he or she engages in shuttle diplomacy between the parties. The mediator encourages the parties to examine what their interests are, whether they be legal, business, economic or personal and to explore settlement terms to satisfy those interests.
Anything said to the mediator during a caucus cannot be repeated by the mediator to the other side to the negotiation without the express consent of the parties so communicating.
The mediator's role is not to force a settlement or make a judgment on the merits of the case. Instead, the mediator facilitates communication, clarifies misunderstandings, identifies areas of agreement, and helps the parties assess the strengths and weaknesses of their own positions.
If an agreement is reached, the mediator helps the parties draft a written settlement agreement. This document, when signed by all parties and their attorneys, becomes a legally binding and enforceable contract. This signed agreement is then presented to the court, which typically dismisses the case in accordance with the settlement terms.
If no agreement is reached, the parties leave the mediation and continue with the standard litigation process, as if the mediation never happened, due to the confidentiality rules. The mediator simply reports to the court that the case did not settle, and the matter proceeds towards trial.