What is Mediation?
Mediation is a process of conflict resolution held in a confidential non-judicial setting.
In 1987 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 which codified how conflict resolution by alternative dispute resolution (ADR) would be applied in Texas.
Mediation is, in effect a secret proceeding. It is a highly confidential process. Texas law leaves no doubt that everything said and done while parties are in settlement negotiations at mediation is off limits at the courthouse.
When parties agree to mediation, or if they are ordered to mediation by a Court, it is like calling “kings x” to any pending or proposed legal proceedings. The parties come together under the invisible umbrella of confidentiality afforded them by Texas law to discuss resolution of their differences. The law protects the confidentiality of the mediation proceedings even if a law suit has not been filed.
The reason the law grants such a high degree of confidentiality to ADR is simple. All parties to the dispute must be allowed to engage in settlement discussions secure in the knowledge that whatever they or their attorney communicates during the mediation will not come back to haunt them at the courthouse.
How Legally Secure Are Confidences?
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 is protected by law from being required to testify in a court proceeding. Positions taken and words exchanged while discussing settlement in mediation cannot be used in a court of law by an attorney, party or witness.
The whole concept of mediation is to allow the parties in conflict with one another to have a full throated settlement discussion and to be absolutely confident 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. The only thing the trial Judge hearing the dispute will know about mediation is that the case either did or did not settle.
What is the Mediator’s Role?
A MEDIATOR is a neutral to the dispute. When requested by the parties to mediate a dispute, the Mediator will seek to set a consensus time for the parties to meet for settlement discussions. The mediator, unlike an arbitrator in arbitration, does not make any decisions for the parties to the dispute. The Mediator’s role is to act as a neutral and to work hard to assist the parties in coming to a negotiated resolution of their differences.
The Process at MMAS
After many years of mediating conflicts, Judge Metcalf has developed his own style of mediation. His process is unique and differs from that of other mediators. At MMAS the mediation process has been formulated to give the parties to the dispute the best opportunity to resolve their differences outside of a court.
- Location: First, the parties come together, usually at the Mediator’s offices, but the mediation can be held at any place the parties mutually agree upon.
- Opening Session: The Mediator may request the parties and their counsel to attend a very brief joint opening session. Judge Metcalf presides over the opening session. Neither the parties nor their counsel are permitted to discuss the case in the opening session. Judge Metcalf is the only person who will speak during the opening. The information delivered at the opening is limited to an explanation of the ADR process, and how Judge Metcalf’s own unique mediation process works.
- Private Caucus: Following the brief opening session, the mediator separates the parties into different rooms. Judge Metcalf then begins the mediation process by meeting separately with the parties. It is important for the parties to have an opportunity to personally and candidly explain their position to the Mediator.
- Shuttle Diplomacy: The mediator then shuttles back and forth between the parties’ respective rooms communicating the parties’ offers and counter offers for settlement of the dispute. The Mediator may make suggestions to the parties on how to narrow the differences in the dispute. Parties committed to resolving a dispute, with the assistance of the mediator, will begin to narrow the differences taken in their initial opening positions.
The Unique MMAS “Wrap Up” Session
As a result of Judge Metcalf’s passion for wanting to settle every dispute he mediates, over the years he discovered, almost by accident, that if a dispute did not settle at the first session (round one) then he would recess the mediation and request the parties to return for a free round two, two hour “wrap up” session.
Experience has proven that in well over 90% of the recessed mediations when the parties would choose to take advantage of the free two hour wrap up session and agree to return to the negotiations, the dispute would settle. Over 90% of the time a dispute will resolve either right before, at or shortly following the wrap up session.
Advantages & Considerations
Why Try Mediation Before Court?
Preparing a case for trial and the trial itself is a very expensive process in any forum. Mediation is an informal process for dispute resolution and is usually a far less expensive method to end the conflict as opposed to a trial.
Equally important, the parties may have the opportunity to accomplish through a mediated settlement what they could not get done at a trial. A trial affords the parties only one alternative–to win or lose. Moreover, the final outcome of a trial is always uncertain and the results will be harsh for someone.
When Should Mediation Be Considered?
Advantages of Mediation
- It can be scheduled very quickly
- It is relatively inexpensive when compared to litigation costs
- It can usually be completed in one day, or less.
- 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 filled with stress and anxiety for the participants
- ADR affords the parties an opportunity to fashion a creative resolution to their differences which many times a court of law could not provide
- When ADR is successful, it ends the dispute
Disadvantages?
Not really. Even if a dispute is not resolved at mediation the parties leave the mediation more well informed and focused on what their range of options are. ADR provides the potential for a win-win situation, whereas the alternative at the courthouse is simple—you either win or lose. ADR also affords the opportunity to preserve a relationship.
Suitable Disputes for Mediation
Virtually all disputes lend themselves to ADR consideration, but the following are particularly suitable for mediation: