Even when our legal system works as it should, litigation drains money, time, and energy of the parties involved. When parties are unable to settle a dispute, an objective third party may be able to facilitate a resolution, a process known as mediation. Increasingly, courts are suggesting and even requiring mediation to help parties resolve disputes in a more efficient way. Mediation helps to avoid litigation and to “promote reconciliation, settlement, or understanding among them." Tex. Civ. Prac. & Rem. Code Ann. § 154.023(a); Tex. Jur. 3d, Trial § 430.
Mediator Training
In order to best navigate a potentially volatile situation, a mediator usually must complete at least 40 hours of training in dispute resolution techniques taught by a court-approved organization. On some occasions, however, the court may appoint someone who is not trained as a mediator but whose experience or training provides them with the necessary dispute resolution skills. Mediators are compensated for their services. Tex. Civ. Prac. & Rem. Code Ann. § 154.052(a); Tex. Jur. 3d, Trial § 426.
In some situations, a volunteer may function as a mediator. A volunteer receives no compensation for mediation, aside from reimbursement for expenses. This volunteer status also relieves the volunteer from “civil liability for any act or omission within the course and scope of his or her duties or functions as an impartial third party.” Tex. Civ. Prac. & Rem. Code Ann. § 154.055(a).
A mediator has the challenging task of helping parties reach a settlement but may not “compel or coerce” people into a settlement. Tex. Civ. Prac. & Rem. Code Ann. § 154.053(a). While the role of the mediator is to resolve a dispute, the mediator must act based on the parties’ feedback, and “cannot impose his or her own judgment on the issue for that of the parties.” Tex. Civ. Prac. & Rem. Code Ann. § 154.023(b). A mediator who fails to adhere to these protocols may be reported, as outlined in Subchapter B, Chapter 261, Family Code, and Subchapter C, Chapter 48, Human Resources Code. Tex. Civ. Prac. & Rem. Code Ann. § 154.053(d); Tex. Jur. 3d, Trial §§ 426, 427.
The Mediation Process
Several components are in place to help minimize any opportunity for conflict during the mediation process. Participants involved in the dispute wait in separate rooms while the mediator travels between them to discuss viable solutions to the disputes. The mediator maintains confidentiality, sharing only that information which the participant agrees to share with the other party. Confidentiality extends to discussing the demeanor and conduct of the parties involved. Mediators may not share that a party is visibly upset or angry, for example.
If the parties do reach a settlement, the mediator records it in an informal document known as a mediated settlement agreement, which is then signed by the disputing parties. Next, an order or decree based on that mediated settlement agreement is formally written and signed by each party, their lawyers, and the judge, ending the dispute and finalizing the settlement. Tex. Civ. Prac. & Rem. Code Ann. § 154.053b-c).
A mediator specifically trained in dispute resolution may be able to de-escalate conflict and help parties reach an agreement more quickly and easily than is possible in a court setting. Although it can be frustrating and difficult, mediation offers greater opportunity for parties to exchange ideas and communicate priorities in a less stressful environment than a courtroom. Thus, the mediation process offers a compromise where neither side “wins” or “loses,” and where neither party may prolong the process by appealing a verdict, all reasons that Texas courts are more frequently requiring mediation as part of the legal process.
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