The following information is from “Dispute Resolution Texas Style, Third Edition (revised January 2006),” State Bar of Texas Alternative Resolution Section.

About Mediation

Mediation is a process in which a trained facilitator assists disputing parties in communicating their concerns on issues and exploring possible solutions. The mediator does not render any decision or provide any evaluation of the cases; rather, he or she facilitates the exchange of information and settlement alternatives between parties. Mediation is characterized by a business-like, cooperative climate that sets the stage for constructive communication in the future. Accordingly, mediation is used extensively in family disputes, particularly those involving child custody issues, and in business or other cases involving an ongoing relationship.

The mediator establishes and enforces procedures that are fair and even-handed and that allow all sides a chance to be heard. Mediation also provides an opportunity to express emotions or frustration that may be blocking negotiations and to address these underlying concerns in a controlled environment. The mediator acts as an agent of reality helping parties think through their claims and ensuring that all parties participate in fashioning any settlement agreement.

Lawyers may attend mediation sessions and represent their clients. In most meditations, it is anticipated that the parties themselves will have the opportunity to discuss issues with other disputants [or] with the mediator. Because the disputants themselves participate, there is usually a high degree of client satisfaction with any settlement reached and with the mediation process itself. The length of time needed for mediation depends on the complexity of the dispute, the commitment and communication skills of the parties and the orientation or limitations of the mediator. Many disputes can be resolved in one mediation session of [four] to [eight] hours; other cases may require multiple sessions.

The following information is from “What Is Mediation?” at

Key Qualities of the Mediation Process

Collaborative—You are encouraged to work together to solve your problem(s) and to reach what you perceive to be your best agreement.

Controlled—You have complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.

Confidential—Mediation is confidential, to the extent you desire and agree, be that by statute, contract, rules of evidence or privilege. Mediation discussions and all materials developed for mediation are not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. Your mediator is obligated to describe any exceptions to this general confidentiality of mediation. Confidentiality in mediation may be waived in writing, although the mediator may retain his or her own ability to refuse to testify in any contested case. The extent of confidentiality for any “caucus meetings” (meetings between the mediator and individual parties) should also be defined.

Informed—The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Mutually acceptable experts can be retained. Such jointly obtained expert information can be designated as either confidential to the mediation or, as the parties desire, as admissible in any subsequent contested proceeding. Expert advice is never determinative in mediation. The parties always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each mediation participant.

Impartial, Neutral, Balanced and Safe—The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. Your mediator is ethically obligated to acknowledge any substantive bias on substantive issues in discussion. The mediator’s role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.

Self-Responsible and Satisfying—Based upon having actively resolved your own conflict, participant satisfaction, likelihood of compliance and self-esteem are found by research to be dramatically elevated through mediation.

Mediation is a form of Alternative Dispute Resolution (ADR).

The following information is from “Dispute Resolution Texas Style, Third Edition (revised January 2006),” State Bar of Texas Alternative Resolution Section.

Common Questions about ADR

What is ADR?

Under the ADR Act, alternative dispute resolution refers to a nonbinding confidential proceeding in which an objective third party facilitates the resolution of a dispute.

What are the benefits of ADR?

ADR processes tend to be informal, quick, economical, flexible, and less traumatic than more formal procedures. Because parties participate more directly in resolving the disputes, ADR generally yields practical and creative agreements and more satisfied clients.

If 90% of cases settle prior to trial, why the need for ADR?

Parties tend to wait until shortly before trial to commence serious negotiations. Earlier settlements save time, money, and emotional expenditure. The ADR process can aid attorneys seeking an appropriate way to illustrate for clients the practical possibilities and limitations of a case. ADR also provides attorneys the opportunity to advocate a process that is likely to preserve ongoing relationships between parties and lead to creative and practical solutions.

Why is it that ADR tends to result in voluntary settlements?

. . . ADR is a confidential and nonadversarial process for constructive negotiations. The ADR neutral, acting as an agent of reality, facilitates negotiations by ensuring that all points of view will be considered, establishing other procedures that free attorneys and clients to focus on mutually acceptable settlements.

How do you obtain participation of the other side in an ADR procedure?

The appearance of the other side for an ADR procedure can be obtained by personal request or by court order subject to the right of the other side to make timely and reasonable objection. The actual participation in good faith at an ADR proceeding is essentially at the discretion of the other side.

How often does use of ADR lead to settlement?

Settlement rates vary depending on the type of ADR process used, the point in litigation when the ADR referral occurs, and the time, commitment and skills brought to the table by the parties.

Formal settlement is not the only criterion for the success of an ADR proceeding. Even when a written agreement is not finalized, the ADR process often clarifies or limits the issues and sets the stage for continued and constructive negotiation. And, even when agreements are not reached, client satisfaction with ADR tends to be high, especially in ADR processes that rely on client participation.

What if ADR is ordered before discovery is completed or before the judge has ruled on legal issues such as motions for summary judgment?

Sometimes ADR is most effective when commenced before discovery is underway. If discovery is partially complete, the court may ask that no further discovery be completed pending the outcome of the ADR process. The timing of the ADR process can usually be worked out with the court, the ADR neutral and the other party. Most judges are sensitive to the need to rule on any legal issues essential for case evaluation prior to an ADR procedure.

What cases are not appropriate for ADR?

Most civil disputes are appropriate for referral to an ADR proceeding. However, it is generally believed that cases involving a gross disparity in bargaining power (such as cases involving spouse or child abuse) should not attempt an ADR procedure. Also, cases involving questions of constitutional rights or other test cases may not be suitable for ADR.

Is ADR part of a movement to do away with jury trials?

No. ADR will never replace the right to jury trial. In fact, the efficacy of ADR under the ADR Act depends on the parties’ right to trial if the negotiations fail. The jury trial then becomes the alternative against which a proposed settlement is tested.

What is the attorney’s role and responsibility in ADR?

Lawyers are obligated to assist clients in evaluating and preparing settlement options, including ADR. Attorneys prepare for and participate with clients in ADR procedures. If no settlement is reached, they try their cases in court. Attorneys are obligated to advise clients to comply with a court order for ADR subject to the right to object under Section 154.022 of the Texas Civil Practice and Remedies Code.

Does a request for or participation in an ADR hearing imply weakness?

No. A settlement initiative based on careful research of the case is generally considered a strong move. Further, no adverse inference whatsoever can be drawn from participation in a court-ordered ADR proceeding under the ADR Act.

What if the other side participates in an ADR procedure but does not make any offer?

Under the ADR Act, there is no requirement that ADR participants make any offer, and there are no consequences for not doing so.