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What Is Mediation?

By August 11, 2022One Comment

Definition of Mediation – Mediation is a process in which an impartial person, the Mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding between them.  The Mediator may suggest ways of resolving the dispute but may not impose his/her own judgement on the issues or the parties.

Consent to Mediator—The parties consent to the appointment of the individual named as Mediator in their case.  Typically, the parties will agree to use a Mediator as well as the location and start time of the Mediation.  If the parties are unable to agree on a Mediator, a party can file a Motion to Mediate and have the matter heard by the Court who will decide on the Mediator and location/start time of the Mediation.  The Mediator acts as an advocate for resolution only and not as an advocate for either party.  The Mediator uses his/her best efforts to assist the parties in reaching a mutually acceptable settlement.

Requirements of Mediator—The Mediator shall not serve as a Mediator in any dispute in which he has any financial or personal interest in the result of the Mediation.  Pursuant to Section 154.052 of the Texas Civil Practices and Remedies Code, to qualify for an appointment as an impartial third party, a person must have completed a minimum of 40 classroom hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the court making the appointment.  To qualify for an appointment as an impartial third party in a dispute relating to the parent-child relationship, a person much complete an additional 24 hours of training in the fields of family law, including a minimum of four hours of family violence dynamics training developed in consultation with a statewide family violence advocacy organization.  This 24 hour course is in addition the 40 hours of basic mediation training.  In appropriate circumstances, a court may in it is discretion appoint a person as an impartial third party who does not qualify under the requirements specified above, if the court bases its appointment on legal or other professional training or experience in particular dispute resolution processes.

Bias of Mediator.  Prior to accepting an appointment, the Mediator must disclose any circumstance likely to create a presumption of bias.  In the event that the parties disagree as to whether the Mediator shall serve, the Mediator shall not serve.

Authority of Mediator – The Mediator does not have the authority to decide any issue, but, instead, will attempt to facilitate the voluntary resolution of the dispute.  The Mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice.  Arrangements for obtaining such advice shall be made by the Mediator or the parties, as the Mediator shall determine.

Commitment to Participate in Good Faith.  While neither party is required to settle their case, all parties commit to participate in the proceedings in good faith with the intention to settle.

Caucus Style Mediation— The Mediator is authorized to conduct joint and separate meetings with the parties and to offer suggestions to assist the parties in achieving settlement if necessary.  Most often, however, the Mediation is conducted in a Caucus Style Mediation, i.e. with the parties in separate rooms.  The Caucus Style Mediation helps in the confidentiality of the mediation process and allows for parties to be more candid and to explore various ideas that they are not comfortable sharing with the other party.  In addition, Caucus Style Mediation provide a good opportunity for the Mediator to perform reality testing with the parties.

Parties Responsible for Negotiating Their Own Settlement – The parties understand that the Mediator will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a settlement acceptable to them.  The Mediator, as an advocate for settlement, will use every effort to facilitate the negotiations of the parties.  The Mediator does not warrant or represent that settlement will result from the mediation process.

Authority of Representatives – PARTY REPRESENTATIVES MUST HAVE AUTHORITY TO SETTLE AND ALL PERSONS NECESSARY TO THE DECISION TO SETTLE SHALL BE PRESENT.  The names and addresses of such persons shall be communicated in writing to all parties and to the Mediator.

Identification of Matters in Dispute – Prior to the first scheduled mediation session (it is not unusual for a Mediation to need two or even three sessions to resolve the issues in the case), typically the Mediator will request that all attorneys of record and or parties if pro se to provide information regarding the pending issues in the case one or two days in advance of the Mediation.

Privacy – Mediation sessions are private.  The Parties and their representatives may attend mediation sessions.  Other persons may attend only with the permission of the parties, the respective attorneys, and with the consent of the Mediator.

Confidentiality – Confidential information, records, reports, or other documents disclosed to a Mediator by the parties or by witnesses in the course of the mediation shall not be divulged by the Mediator and the Mediator shall not be compelled to divulge such records or to testify in regard to the mediation except to testify that the parties mediated and did not reach an agreement.  Pursuant to Section 154.053 of the Texas Civil Practices and Remedies Code, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.

Relevant Code Sections—Sections 154.052, 154.053 of the Texas Civil Practices and Remedies Code and Sections 6.601 (divorce) and Section 153.0071 (Suits Affecting Parent-Child Relationships) of the Texas Family Code.

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