TARRANT COUNTY ASSOCIATION OF MEDIATORS

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About Mediation

The law of the State of Texas (in Section 154.023 of the Civil Practice & Remedies Code) defines MEDIATION:

(a) Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.
(b) A mediator may not impose his own judgment on the issues for that of the parties.

Section 154.052 of the Texas Civil Practice & Remedies Code defines the standards and duties of impartial third parties:

(a) A person appointed to facilitate an alternative dispute resolution procedure under this subchapter shall encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement.
(b) Unless expressly authorized by the disclosing party, the impartial third party may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute.
(c) Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.
(d) Each participant, including the impartial third party, to an alternative dispute resolution procedure is subject to the requirements of Subchapter B, Chapter 261, Family Code, and Subchapter C, Chapter 48, Human Resources Code.
 
Section 154.071 of the Texas Civil Practice & Remedies Code states the effect of the written settlement agreement:

(a) If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract.
(b) The court in its discretion may incorporate the terms of the agreement in the court's final decree disposing of the case.
(c) A settlement agreement does not affect an outstanding court order unless the terms of the agreement are incorporated into a subsequent decree.

The role of the mediator is to facilitate communication between parties involved in a dispute so that each party may understand the perspective of the others.  Mediators assist the parties to identify the issues, to generate options, and to negotiate terms that may lead to a mutually agreed upon resolution of their dispute and/or work toward reconciliation.

The parties are the decision-makers in mediation.  The mediator is neither a decision maker nor an advice giver.  The principle of self-determination in mediation means that the parties have complete decision-making power.  In the mediation session, the parties work together to resolve their problems so that they may develop and commit to a mutually satisfying agreement.  The final outcome is sometimes described as “Win-Win” as opposed to the “Win-Lose” nature of the adversarial courtroom approach (which may be more aptly described as “Lose-Lose”).

Mediation is a voluntary process, and parties may leave at any time. The mediator is bound under Texas statutes not to coerce an agreement, but rather to encourage and assist the parties toward that goal by providing a communication environment that makes settlement a consideration.

Mediation is a confidential process.   The mediator is bound by a code of confidentiality that prohibits sharing any information with others not involved in the mediation.    The parties will be asked to honor the confidentiality of the mediation session. The session is not recorded, and tape recorders or videos are usually prohibited. Notes may be taken, but they are often destroyed at the conclusion of the mediation.  If the court orders mediation, the only report the mediator gives to the court upon conclusion of the mediation is that the case settled or that it did not settle. Exceptions are that Texas statutes require that charges of child or elder abuse or neglect or planned criminal activity must be reported.

Parties are to be informed about the process.  Many parties seek legal or other advice from experts prior to mediation.  Attorneys may or may not be present at the mediation.

The mediator is neutral and impartial throughout the mediation   The mediator has no interest vested in the outcome, and the mediator does not take sides with either party at any time.

The mediation session is an informal meeting in which each party is provided an opportunity to provide their view of the problem that brought them into mediation, to express their position, and to understand the facts and circumstances.   The parties may meet jointly and they may meet privately (in “caucus”) with the mediator(s).  Parties are encouraged to enter into the mediation meeting in good faith to work toward resolving their problem. 

The benefits of mediation include the following:

1.     Informal and Confidential – Mediation is not a legal or judicial hearing.   Parties may enter into conversation without editing their comments.  The forum provides a business-like approach to resolving disputes as parties have the opportunity to develop creative solutions to resolve  disputes themselves.

2.     Control and mutually satisfactory outcomes – The parties in mediation who negotiate their own settlements have control over the outcome of their dispute. People are generally more satisfied with solutions upon which they mutually agree as opposed to solutions that are imposed by a third party.  Additionally, parties who make their own decision about the outcome are more likely to comply with the terms of the resolution than one that has been imposed  by a third party.

3.     Economical -  Mediation is economical in terms of time, money, and emotions.

In terms of time, mediation can generally take place in a short time frame as opposed to the court system that can take years.  Many disputes can be resolved in a single session in a matter of hours.

Going to court is expensive.   Pre-trial preparation and trial court presentation are both time consuming and expensive.   There is risk involved.  There is a perceived winner and a loser even though in many situations, no one party is fully satisfied.

A speedy resolution provides closure. Parties have the opportunity to put the problem behind them and look toward the future.   The adversarial approach requires immense emotional investment that may be ongoing for years.