In 1987 the State Legislature passed laws relating to finding ways to resolve disputes without the need for every claim to be tried at the courthouse. This process included many different forms of alternative dispute resolution (ADR). They included the following:

Moderated Settlement Conferences consisted of a forum for case evaluation and realistic settlement negotiations. Each party and their attorney would present the position of the party before a panel of impartial third parties. The panel would then issue an advisory opinion regarding the liability or damages of the parties or both. The advisory opinion would not be binding on the parties.

Mediation provides a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement or understanding among the participants. The mediator may not impose his/her own judgment on the issues of the parties.

Arbitration provides a forum in which each party and their attorney would present the position of the party to an impartial third party, who renders a specific award. This process may be binding or nonbinding depending on the agreement of the parties or the manner in which the case is referred to arbitration (i.e., by statute or contract.

When this statute was passed into law I began serving as a volunteer moderator on Moderated Settlement Conference panels. Then in 1992 I received mediation training from the Attorney Mediators Institute and followed this up with advanced training from AMI in 1994.

Since then I have devoted a part of my practice to serving as a mediator here in Houston. I have served as a volunteer mediator for the Dispute Resolution Center as well as a paid mediator in cases in the Harris County Courthouse.

The following are frequently asked questions regarding the mediation process:

What is Mediation?

Mediation is a confidential process where a trained mediation professional helps disputing parties work out a mutually acceptable solution to their disagreement. Unlike the traditional legal approach, disputing parties are able to communicate directly through a trained facilitator who will listen to their issues and assist with guiding the parties to a settlement. The mediator does not represent either party, but does offer opinions regarding settlement solutions. A mediator can also bring new perspectives to the proceeding through their knowledge of the subject matter. Many mediators are licensed attorneys or subject matter experts who have years of experience resolving difficult legal issues.

What goes on at a mediation session?

The mediation begins with a the joint session where all parties, party representatives and their attorneys meet with the mediator. During this session the mediator explains the process, the benefits of the process and lays out the ground rules (e.g., no name calling). Then each attorney outlines his/her client’s theory of the case and the legal and factual issues. The clients are urged to speak but are not required to do so.

After the joint session the parties separate into different conference rooms where the private meetings (also referred to as caucuses) occur. These private caucuses are confidential meetings between the mediator and each of the parties and their attorney(s). Anything said during these meetings cannot be repeated outside the caucus without the permission of the party. This confidential meetings allow the attorneys and parties to discuss matters that he/she would be unwilling to state in the presence of the opposing attorney. Here the mediator, the party and the attorney undertake a candid discussion of the risks, the party’s interests sought to be protected, settlement flexibility and weaknesses of the case. As the mediation progresses the mediator will begin to shuttle back and forth between caucuses conveying information, messages and settlement offers. During these sessions the mediator will reinforce points of agreement and conduct reality checks whenever necessary. The mediator steers the parties away from past events and focuses them on what they want to see happen in the future.

Once an agreement is reached, the mediator clarifies the terms of the agreement and makes sure all parties understand the terms of this agreement. The essence of the agreement is then prepared in writing.

Benefits of Mediation

Mediation saves you time, money and aggravation. It gives parties greater control over the outcome of their dispute and provides an effective setting for resolving difficult legal issues. Mediation is:

Confidential - Mediation proceedings are completely confidential. Unlike the court system, your personal information will not be made available to the public. Many consumers fail to realize that once you file a lawsuit your personal information becomes public record. 

Affordable - Mediation can cost considerably less than litigation. Parties normally split the cost of a mediator making the hourly rate more cost effective.

Convenient - Mediation sessions can be scheduled quickly and conveniently. Sessions can be scheduled during the day or night, and even on weekends.  The mediator works around your schedule and can even meet with parties separately or by telephone if necessary.

Amicable - Mediation is a fair and impartial process. The goal of mediation is not to defeat the other party, but to find a solution with the assistance of a trained professional. By utilizing mediation, you are choosing to address a problem in a healthy and mature way that opens lines of communication. This helps to preserve both personal and professional relationships.

Successful - Historically, the overwhelming majority of cases involved in the mediation process settle before going to trial.

How long does mediation take?

Most cases can be resolved in one full day mediation session of 6-10 hours. Many mediators also offer half-day sessions for less complex cases.

What does it cost?

The cost varies depending upon the complexity of the case, the amount in controversy and the number of parties. Usually the cost is from $350 to $1000 per day per party.

What if the mediation does not result in a settlement?

The parties lose nothing. They may still go to court to resolve their case and what they learn about their case may help the case settle later. Follow up studies show that about two thirds of the cases that did not initially settle in mediation do settle before trial.

If the parties reach a settlement, is it enforceable?

If settlement is achieved, the parties will sign a settlement agreement, reviewed and approved by their attorneys. This agreement is enforceable like any other contract once it is signed.

If the case is not settled, can the mediator be a witness or talk to the Judge?

No. State law is that the mediator can neither be a witness nor talk to anyone about the case. Additionally, it is state law that neither the parties nor their attorneys may introduce into evidence what happened or did not happen during the mediation.