How to Make Mediation Effective

This article was originally prepared for paralegals; however, my mediation clients have found it to be an extremely valuable resource. Please use it for general informational purposes only and do not rely on it as legal advice.

WHAT IS ADR? Alternative Dispute Resolution (ADR) generally refers to the use of a neutral third party to facilitate settlement of a dispute outside of a formal court of law. In Texas, a common use of ADR is as a reference to settlement procedures described in and subject to the 1987 Texas Alternative Dispute Resolution Procedures Act.

The Texas Dispute Resolution Procedures Act authorizes a court to refer a pending dispute to an ADR procedure either on the motion of a party or on the Court’s own motion. Although a court can compel ADR, the results of ADR are not binding upon the parties unless agreed to by the parties. Generally, the ADR proceedings are confidential.

WHAT IS MEDIATION? Mediation is one form of Alternative Dispute Resolution. It is widely used in family law cases in Texas. Mediation is a process where the parties to a dispute meet with a neutral trained facilitator, called a “mediator,” to try to resolve areas of conflict. The parties, their attorneys (if applicable), and the mediator discuss the goals of each party, the reality of each party’s position, and explore possible solutions.

The mediator facilitates the exchange of information and settlement alternatives between the parties. Mediation is characterized by a business-like, cooperative climate which sets the stage for constructive communication in the future. Accordingly, mediation is used extensively in family disputes, particularly those involving child custody issues.

Mediation gives the parties more control than a trial; certainty on the result; saves trial costs; helps save the Court’s time; and is generally a friendlier process for the parties.

Most clients prefer making their own decisions rather than leaving their fate to a judge who does not know them or their children. Another strong selling point of mediation is that the parties do not need to “air their dirty laundry” in a public forum.

Mediation is a confidential process. The mediator cannot be called as a witness at trial. If no settlement is reached, the mediator will notify the court but will not include any details.

WHEN IS MEDIATION NOT APPROPRIATE? If there has been domestic violence or if there is an outstanding protective order, most courts will waive mediation. If there are allegations of child abuse, mediation is usually not appropriate. If a client is mentally unstable, mediation is not a good idea — a person must be mentally competent to knowingly enter into a binding legal agreement.

WHAT TO DO BEFORE MEDIATION? • Approach mediation with the seriousness of a trial. It is an opportunity to learn more about your opposition’s case. • Prepare your client. Most clients are terrified of mediation. Explain the process to them in detail. • Before mediation, your client needs to provide a Financial Information Statement, 2–3 recent paystubs, 2 years of tax returns along with W-2s, and information on all assets and debts. • Determine fair market values for assets such as real estate and vehicles. • Ask your client to write down their list of issues and goals and review these lists before mediation.

WHAT TO WEAR TO MEDIATION? Encourage your client to wear comfortable clothing since they will be there for several hours. The parties need to turn off their cell phones and focus on the mediation. Normally friends and/or family members are not allowed at mediation unless all parties and the mediator agree. Children are not allowed at mediation unless the mediator requests they attend.