What is Mediation?
Mediation is a confidential, private, organized process of negotiation used to resolve conflicts between disputing parties. An impartial, professionally trained mediator directs and facilitates the process of communication between the parties involved, meeting at a mutually agreed upon location which is usually the mediator’s office. The mediator establishes and enforces procedures which are fair to all parties and which do not favor one side over any other. The mediator’s job is not to make a decision as to the outcome, but to help facilitate and assist the parties in reaching an agreement with mutual understanding, thereby agreeing to the terms and conditions of the settlement as to one or all of the issues involved in the matter – all while striving to preserve the honor, respect and dignity of each party involved.
The objective of mediation is for parties in conflict to participate in good faith in a dialogue regarding any issues being addressed, as well as presenting their point of view to explore options for settlement in an effort to reach a mutually satisfactory resolution of the issues involved. A mediator may not compel or coerce the parties to enter into a settlement agreement and may not impose his own judgment on the issues for that of the parties; in other words, the parties have control over the outcome and whether or not an agreement is reached. It is a decision made by the parties – not the mediator. Mediation settlement agreements are legally binding and enforceable contracts.
Mediation Benefits and Confidentiality
Mediation is voluntary, flexible, and economical. Mediation is scheduled at the convenience of the parties involved. Many mediation cases that take place are settled within a 4 or 8-hour timeframe. However, mediations regarding divorce situations could take place in one or two sessions within a week, or possibly many sessions over a period of months, depending on the complexity of any financial issues as well as any custody issues that may be involved. The mediation procedure is confidential for all involved as there are no public records of what takes place during the procedure as opposed to a public courtroom where a record of all proceedings is made. Information disclosed during mediation is inadmissible as evidence in any trial or other judicial proceeding, insuring that all parties involved will not be compromised by participating in the mediation process.
Once an Agreement Has Been Made Between Parties
When an agreement has been made – for example, in a divorce regarding a parenting plan – the mediator will commit the agreement to writing in what is known as a ‘Rule 11 Agreement’, which refers to a section of the Texas Rules of Civil Procedure. Once both parties who are involved sign the agreement, it is a legally binding and an irrevocable agreement that is filed with the court. If both parties have hired an attorney separately, the attorneys will use the agreed upon Rule 11 Agreement to compose the more formal, final divorce paperwork that will be presented to the court for signature.
When an Agreement Cannot Be Met
If mediation does not resolve the issues involved, or the parties have reached an agreement on most but not all of the issues addressed, then the next step going forward would be for the parties to proceed through the court system whereby a judge would make the final decisions on any remaining issues that are unresolved between the parties.
Considerations When Choosing a Mediator
Extensive legal expertise and experience, communication skills, a highly regarded reputation for integrity and knowledge, in addition to having had Certification Training, are all factors to be considered in choosing the right mediator for your particular situation. An experienced and respected mediator’s goal is to assist all parties during the mediation process, guiding them to find a compromising solution while having the goal of reaching a resolution that is positive for all parties involved.
THE TEXAS ALTERNATIVE DISPUTE RESOLUTION PROCEDURES ACT
In 1987, the Texas Legislature passed what is known as The Texas Alternative Dispute Resolution Procedures Act. In doing so, the Texas Legislature formally endorsed the use of several alternatives to trial for resolution of conflict. The Texas Alternative Dispute Resolution Procedures Act is found in Chapter 154 of the Texas Civil Practice & Remedies Code. It specifically states that it is the policy of this State to encourage the peaceable resolution of disputes and the early settlement of pending litigation through voluntary settlement procedures.
The Act provides that a court may, on its own motion, or on the motion of either party, refer a pending lawsuit to alternative dispute resolution (ADR). The statute also specifically states that special consideration should be given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession and support of children. The goals of ADR are: (1) to increase party participation in, and satisfaction with, the judicial system; (2) to provide an alternate forum for readily accessible, fair and appropriate means to resolve disputes; (3) to reduce the time and costs of litigation; and (4) to ease the court’s heavy docket.
Section 154.073 of the Texas ADR Act establishes the confidentiality of communications between ADR participants both before and after initiation of a suit. Such communications are not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding unless it is discoverable independent of the ADR procedure.
Oral communications or written materials that are otherwise admissible or discoverable, however, do not become inadmissible or non-discoverable simply by reason of their use in an ADR procedure. Neither the participants nor the third-party neutral can be required to testify, nor are they subject to process requiring disclosure of confidential information. The third party neutral may not disclose to either party information given in confidence by the other unless expressly authorized to do so. Also, if there is some other legal requirement for disclosure, the issue may be submitted to the court “in-camera” (privately in judge’s chambers) for its determination.