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What is mediation?  Who are mediators and what do they do?

Mediation is a term that was coined to describe a process of conflict resolution. (See RULES FOR MEDIATION)

A MEDIATOR is a neutral person who seeks to help people resolve differences by working with the parties in conflict.

The State of Texas recognized a need to have trained mediators assist parties in the "peaceable resolution of their disputes". The Texas Legislature passed a law in 1987 which codified how conflict resolution by alternative dispute resolution (ADR) would be applied in this state.

The cornerstone of all mediation is confidentiality. The Texas mediation statute provides that everything said and done in mediation is off limits at the courthouse. When parties agree to mediation, it's like calling "kings x" to any pending or proposed legal proceedings. The parties come together, normally with their attorneys, and meet under a veil of confidentiality to discuss ways to settle or resolve their differences. It is not even necessary for a law suit to be filed before the ADR law will protect the proceedings.

The parties are allowed to air their differences as fully as they desire, secure in the knowledge that whatever they or their attorney says during the mediation will not come back to haunt them at the courthouse.

How legally secure are the confidences revealed at mediation? Very secure. Texas law provides that the mediator is exempt from all legal processes. A mediator does not have to answer a subpoena. A mediator cannot testify in a proceeding at all. Positions revealed and words said while in mediation cannot be used in a court of law by an attorney, party or witness.

The whole idea behind mediation is to allow all of the parties in conflict with one another to be absolutely certain that if mediation does not succeed, then the "kings x" will remain in effect. The Judge presiding over a case cannot and will not permit mediation conversations to become a part of any court trial. Not even the Judge hearing a dispute will know what happened in the mediation.

How does mediation work - what is the process?

The parties come together at one central location and attend an opening joint session that is presided over by the mediator. The mediator does not give advice or take sides. His role is to act as a middle person and to help the parties come to a negotiated resolution to their dispute.

Opening session: The mediator explains the ADR process and then permits an open and frank statement by the parties and/or their attorneys. Each party has the opportunity to make a full and frank disclosure of their respective position. Every one is allowed to have their say if they so choose.

Private caucus: The mediator then divides the parties into separate meeting places and begins the process of trying to learn what the party or their attorney believe to be the real interests of the persons who are in dispute and what the parameters are for resolving the case.

Shuttle diplomacy: The mediator goes back and forth between the parties to bring offers of settlement and suggestions on how to narrow the differences in the dispute. Parties committed to resolving a dispute begin to narrow the gap between their opening positions with the assistance of the mediator.

When should mediation be considered?

• When you want to hold down litigation costs
• When you wnat a prompt resolution to a dispute
• When a trial cannot provide the remedy you seek
• When you want to end a dispute without destroying a relationship
• When your dispute is private and you want it to remain private

What are the advantages of mediation?

• It can be scheduled very quickly
• It is inexpensive
• It can usually be completed in one day
• Unlike a court trial, mediation is private and confidential
• ADR is informal and is conducted in a relaxed atmosphere compared to a trial that is formal and often filled with anxiety and trauma for the participants
• ADR affords the parties an opportunity to fashion a creative resolution to their differences which a court of law could not provide
• When ADR is successful, it ends the dispute

What are the disadvantages?

• None really. Even if the dispute is not resolved the parties come away from the mediation more well informed and focused on what their range of options are
• ADR provides the potential for a win-win situation because if you go the courthouse ultimately a decision is going to be made on who wins and who loses; ADR can and does present the opportunity to preserve a relationship

What disputes are most suitable for mediation?

Virtually all disputes lend themselves to ADR condsideration, but the following are particularly suitable for consideration:

• complex business litigation
• family law cases involving custody and property issues
• employemnt discrimination cases involving gender, age and race
• civil rights cases
• claims of sexual harassment
• legal and medical malpractice
• personal injury
• will contests and estate division
• class action cases