The Burton Law Firm, P.C. has over 14 years of experience in this area
of the law. If you have questions about this subject please call us
at 713-222-6262; or email David Torok at david@burton-lawfirm.com.
Mediation and Alternative Dispute Resolution
- What is ADR?
ADR stands for Alternative Dispute Resolution. It includes arbitration, moderated
settlement conference, mini-trial, summary jury trial and mediation.
- What is arbitration?
Non-binding arbitration is a forum in which each party and counsel for the
party present the position of the party before an impartial third-party, who renders a specific award.
- Is there binding arbitration?
Yes. If the parties stipulate in advance, the award is binding and
enforceable in the same manner as any contract. If the parties do not stipulate in advance that the
award is binding, the award is not binding and serves only as a basis for the parties' further
settlement negotiations.
- What is a moderated settlement conference?
This is a forum for early case evaluation and
development of realistic settlement negotiations.
- How does a moderated settlement conference work?
Each party and counsel for the party present
the position of the party before a panel of impartial third parties. The panel may issue an advisory
opinion regarding the liability or damages of the parties, or both. The advisory opinion is not
binding on the parties.
- Is a summary jury trial similar to a moderated settlement conference?
Yes, in that is also a forum
for early case evaluation and development of realistic settlement negotiations.
- How is a summary jury trial conducted?
Each party and counsel for the party present the position
of the party to a panel of jurors. By rule the number of jurors on the panel is six; unless the parties
agree otherwise. The panel may issue an advisory opinion regarding liability or damages of the
parties, or both. The advisory opinion is not binding on the parties.
- What is a mini-trial?
A mini-trial is a forum at which each party and counsel for the party present
the position of the party in order to define the issues and develop a basis for realistic settlement
negotiations. This is before selected representatives for each party or before an impartial third-party.
A mini-trial is conducted under an agreement of the parties.
- Is the mini-trial outcome binding?
The advisory opinion is not binding on the parties unless the parties that it is binding and enter into a written settlement agreement.
- What is mediation?
Mediation is a forum in which an impartial person, the mediator, facilitates
communication between parties to promote reconciliation, settlement, or understanding among them.
- What distinguishes mediation from other forms of dispute resolution procedures?
There is no
fact finding, decision or opinion by a third-party.
- Can the mediator impose his judgment on the issues for that of the parties?
No.
- How successful is Mediation?
The settlement rate for cases mediated with a qualified
professional attorney-mediator is 80 percent or more.
- Can mediation be used before litigation?
Yes.
- Can mediation be used after judgment, during the appeals process?
Yes.
- What is the authority for mediations?
For Texas, like the other forms of ADR noted herein,
mediations are authorized by Chapter 154 of the Texas Civil Practice & Remedies Code.
- Who is a "qualified" mediator?
A mediator must be neutral, impartial, objective, flexible,
patient, persistent, empathetic, respected, an effective listener, imaginative, honest, intelligent,
reliable, non-defensive, persevering, forceful and optimistic.
- Where can you find a "qualified" mediator?
In addition to referrals from other attorneys and
websites, many courts maintain a list of persons authorized and qualified to serve as a mediator.
- What is the cost of Mediation?
The rates vary widely; typically from $450.00 to $1,500.00 per
party for a full day. Usually a case can mediated in one ful day; although occasionally follow-up
sessions are needed. The parties can also agree to a half day Mediation.
- Can mediation be ordered by a court?
Yes. Even though the parties cannot be compelled to
settle, they can be ordered to mediate.
- Under what circumstances will a court order mediation?
This varies widely between courts.
Some courts will order all cases to mediation. Some courts will designate the mediator. Other
courts will let the parties decide the appropriateness of Mediation.
- How is mediation done?
There are different schools of thought for conducting mediations;
though the most common method is the "caucus" method. In this format, the parties and counsel meet in a common room with the mediator to conduct their initial presentation of the case and to
exchange questions. Sometimes the mediator will ask questions. After the initial caucus, the parties
are separated and the mediator "shuttles" back and forth between the parties; sometimes reconvening
the parties.
- What are some do's and don't's of mediation?
The Mediation is private, unlike trial. No tape
recordings are allowed and no court reporters are present. The mediator cannot be called as a
witness. No subpoenas, summons, complaints, citations, writs or other process may be served upon
any person at or near the site of any mediation session, or upon anyone entering, attending or leaving
the session. The proceedings are confidential and privileged.
- What happens after mediation?
If successful, the parties usually enter into a basic written
settlement agreement at the Mediation. Later they or the attorneys will prepare more substantive and
detailed papers to close the case. The mediator can only report to the court that the case did or did
not settle.
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