Mediation Defined
 
Mediation is a process in which a trained mediator 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 and 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. In other words, the parties are empowered to resolve their dispute, rather than possibly losing that power to another process such as litigation.  The length of time needed for mediation depends on the complexity of the dispute, the commitment and communication skills of the parties and orientation or limitations of the mediator. Many disputes can be resolved in one mediation session of 2-4 hours; other cases may require all day or multiple sessions.

Private and Confidential

Unlike litigation, in which almost everything is filed as a public record (easily searched by computer today), Texas law establishes the confidentiality of communications between mediation participants, both before and after initiation of a suit. Mediation 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 mediation 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 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.

For more information about Mediation, please contact us.  Our firm can provide Mediation services.  For further information, see "Dispute Resolution -Texas Style" official publication of the State Bar of Texas (originally authored and edited by our firm attorney, Marty B. Leewright):

http://www.texasadr.org/drtexas.html