How Mediation Works

Mediation is a process where parties meet with a neutral third-party mediator who facilitates settlement discussions.

The mediator's role:

• Neutral facilitator, not decision-maker
• Helps parties communicate and negotiate
• Identifies areas of agreement and disagreement
• Explores settlement options
• Does not impose settlement or render decision

Typical mediation process:

1. Opening session: Mediator explains process and ground rules
2. Party statements: Each side presents their perspective
3. Joint discussion: Parties discuss issues together if productive
4. Separate sessions: Mediator meets privately with each side (caucus)
5. Negotiation: Mediator facilitates offers, counteroffers, and compromise
6. Settlement or conclusion: Agreement reached or mediation ends

Mediation Requirements and Procedures

Court orders:

• Many Texas courts order mediation before trial
• Order typically issued early in case or before trial setting
• Parties must attend and participate in good faith
• Failure to attend can result in sanctions

Selecting mediator:

• Parties often agree on mediator selection
• Court may appoint mediator if parties cannot agree
• Mediators must meet qualifications (training, experience)
• Many mediators are experienced attorneys or retired judges

Costs:

• Parties typically share mediator fees equally
• Mediator fees vary (commonly $200-$500+ per hour)
• Typical mediation: half-day to full-day session
• Each party responsible for own attorney fees

Confidentiality:

• Mediation communications are confidential and privileged
• Cannot be used as evidence in trial
• Encourages frank discussion without litigation risk
• Mediator cannot be called as witness

Settlement agreements:

• If settlement reached, typically reduced to writing
• Signed settlement agreement is enforceable contract
• Can be made part of court order
• Failure to honor settlement can be enforced

Characteristics Often Cited About Mediation

Potential advantages:

• Lower cost than trial
• Faster resolution
• Parties control outcome rather than judge/jury
• Flexible, creative solutions possible
• Preserves business relationships better than adversarial trial
• Confidential process
• Can resume litigation if mediation fails

Considerations:

• Settlement is voluntary - cannot be forced
• Requires both parties willing to negotiate
• May not work if parties far apart or highly adversarial
• Costs mediator fees even if no settlement
• Effectiveness depends partly on mediator skill

How Settlement Conferences Work

Judicial settlement conferences involve a judge (often not the trial judge) meeting with parties to facilitate settlement.

Judge's role:

• Facilitates settlement discussions
• May provide case evaluation
• Offers perspective on strengths and weaknesses
• Encourages compromise and resolution
• Does not impose settlement

Process:

• Similar to mediation but conducted by judge
• May involve joint sessions and private meetings
• Judge's legal expertise and authority lend weight to evaluation
• Discussions remain confidential

Characteristics:

• No cost for judge's time (court service)
• Judge's experience can facilitate realistic settlement discussions
• May carry more weight than private mediator
• Limited availability depending on court resources

How Early Neutral Evaluation Works

Early neutral evaluation involves an experienced attorney or subject matter expert providing an assessment of the case early in litigation.

Evaluator's role:

• Reviews case materials and presentations
• Provides objective assessment of strengths and weaknesses
• Evaluates likely outcomes if case proceeds to trial
• Offers realistic settlement range

Process:

• Parties select neutral evaluator
• Each side presents case to evaluator
• Evaluator provides oral or written evaluation
• Parties use evaluation to inform settlement negotiations

Purpose:

• Provides reality check early in litigation
• Helps parties understand litigation risks
• Facilitates more informed settlement discussions
• Can narrow issues even if settlement doesn't occur

How Arbitration Works

Arbitration is a private dispute resolution process where an arbitrator or panel hears evidence and makes a binding or non-binding decision.

Types of arbitration:

• Binding arbitration: Arbitrator's decision is final and enforceable like court judgment
• Non-binding arbitration: Arbitrator's decision is advisory; parties can proceed to trial if dissatisfied

Sources of arbitration:

• Contractual: Parties agreed to arbitrate in contract
• Court-ordered: Court orders arbitration in certain cases
• Voluntary: Parties agree to arbitrate after dispute arises

Arbitration Process and Characteristics

Typical arbitration process:

• Select arbitrator(s)
• Limited discovery
• Hearing with evidence presentation
• Arbitrator renders decision (award)
• Award confirmed by court if binding

Characteristics often cited:

• More formal than mediation but less formal than trial
• Streamlined procedures
• Limited discovery reduces costs
• Faster than court litigation typically
• Private process
• Arbitrator selected by parties

Enforceability:

• Binding arbitration awards enforceable like court judgments
• Very limited grounds for appeal or overturning
• Texas law generally favors enforcement of arbitration agreements
• Federal Arbitration Act also supports arbitration

Costs:

• Arbitrator fees (typically shared by parties)
• Administrative fees if using arbitration organization
• Attorney fees
• Can be less expensive than full litigation but not always

Summary Jury Trial

How it works:

• Abbreviated trial presentation to actual jury
• Condensed evidence and arguments
• Jury provides non-binding verdict
• Shows parties how jury might view full case

Purpose:

• Test case with real jury
• Understand jury perspective
• Encourage settlement based on jury reaction
• Reduce uncertainty about trial outcome

Mini-Trial

How it works:

• Informal presentation to business decision-makers
• Each side presents abbreviated case
• Decision-makers (executives, not just attorneys) participate
• Often includes neutral advisor who facilitates

Purpose:

• Educate business decision-makers about case
• Remove case from attorneys to principals
• Facilitate business-based settlement discussions
• Often effective in business disputes