The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.
﹘ Sandra Day O’Connor - Associate Justice, United States Supreme Court
WHAT ARE YOUR CHOICES - YOUR REAL CHOICES – when it comes to resolving your dispute? It seems like there are only two – either to litigate until a jury verdict is reached or to mediate to see if an agreement can be reached. Both options have the potential to resolve the conflict – to put an end to your dispute. So which choice is better for you?
Litigation is generally a slow, costly, and time-consuming process. A trial can last several days or even several weeks depending on the complexity of the issues and the number of witnesses. Mediation is certainly less expensive and generally takes only a few hours, perhaps a day at the most. If successful, then both parties can walk away, hopefully happy with the choice they made.
The search for an alternative to trial as a means of resolving disputes is not a new idea. It’s been discussed by the bench, the bar, and the legislature for quite a while. In a speech to the American Bar Association in 1984, U.S. Supreme Court Chief Justice Warren Burger, expressed his view on the subject and did so with emotional eloquence:
"We must move away from the total reliance on the adversary contest for resolving all disputes. For some disputes, trials will be the only means, but for many, trials by the adversary contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected."
Chief Justice Warren E. Burger, United States Supreme Court (February 12, 1984)
In 1987, three years after Chief Justice Burger's speech, the Texas Legislature passed what is known as The Texas Alternative Dispute Resolution Procedures Act (ADR) and in doing so, 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 four 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.
The specific forms of ADR listed in the Texas statute are
Mediation
Arbitration
Mini Trial
Summary Jury Trial, and
Moderated Settlement Conference
Of the five forms of ADR listed above, mediation and arbitration are the most commonly used. What’s the difference? Basically, in arbitration you ask for a decision or "award" from an arbitrator and in mediation you try to reach a settlement agreement with your opponent. Mediators and arbitrators are often referred to as ” neutral third parties” or simply “neutrals” because they must remain neutral and cannot choose sides.
ARBITRATION, like trial, is a much more formal process than mediation. In arbitration, the parties present all or a portion of their dispute to the arbitrator and ask for a decision. They present evidence in the form of documents and witness testimony to the arbitrator. At the end of the process, the arbitrator’s job is to review and weigh the evidence, much like a judge would do, and when he is ready, he will decide who should win and will issue his final decision (or “award”). Simply stated, in arbitration the third party neutral – the arbitrator – decides the outcome.
MEDIATION is a far less formal procedure than arbitration. In mediation, the parties meet at the mediator’s office to “discuss” their dispute and try to reach an agreement. The mediator establishes and enforces procedures which are fair to both parties and which do not favor one side over the other. Both sides will have an opportunity to be heard, and everyone will speak their mind. Sometimes, emotions may also be vented. It is common for issues which were preventing an earlier resolution to be identified and openly discussed. Unlike arbitration, the mediator’s job is not to make a decision as to the outcome, but to encourage and assist the parties in reaching their own settlement of their own dispute.
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 nor not an agreement is reached, is up to the parties – not the mediator. It is a testament to the process that many, many cases settle at mediation.
So, what's right for you? While mediation might not resolve every dispute, it has a solid track record and is a good first step toward conflict resolution. It also produces faster results and is less costly than its more adversarial alternatives.
An important provision of the Texas ADR Act is section 154.073 which 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. Confidentiality is important for those individuals and businesses who want to keep their negotiations and decisions private.
