Mediation Questions

What is mediation?
Mediation is a forum in which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding among them. A mediator may not impose his or her own judgment on the issues for that of the parties. TEX. CIV. PRAC. & REM. CODE ANN. ?154.023(a) and (b)

What are the advantages of mediation?

• Privacy.
• Parties control the forum.
• Parties select the neutral facilitator(s).
• Reflects the concerns and priorities of the parties.
• Most unique and flexible ADR procedure.
• Non-adversarial and nonadjudicatory approach to conflict resolution.
• Mediator is impartial and non-judgmental; acts as a neutral facilitator.
• High success rate and high rate of compliance.
• Shares the same qualities with principled negotiation.
• Process educates the parties about the law, themselves, and each other.
• Addresses the underlying problem(s) between the parties.
• The parties themselves, with the assistance of their attorneys, arrive at a mutually acceptable resolution of their dispute.
• Often results in creative solutions.
• Empowers the parties to control their own destiny.
• Relatively inexpensive.

What are the disadvantages?

• The neutral mediator/facilitator have no power to impose the settlement. Only the parties have the power to agree and settle.
• The neutral mediator/facilitator have no power to compel the parties to participate in mediation. The parties must participate in good faith.
• There are no due process safeguards.
• The powerful party can influence the outcome.
• Usually non-binding unless the parties enter into a binding written agreement.
• Lacks enforceability unless the parties enter into a binding written agreement.
• Outcome need not be principled.

How does one get to mediation?
On the written agreement of the parties or on the court’s own motion, the court may refer a suit under Title 1 (spouses and property) and Title 5 (parent and child) of the Texas Family Code to mediation. TEX. FAM. CODE ANN. ?6.602 and ?153.0071

How do I know when to use mediation?
Mediation is effective in various types of disputes. The following are examples of when mediation is useful either exclusively as dispute resolution tool or concurrently with a lawsuit. Generally, in most court cases, mediation is the precondition to a court hearing.

• Family/Domestic Issues: These cases include pending and/or post divorce issues such as custody, visitation, support, and property division. They can include family conflicts among siblings, parent/child, grandparents, husband/wife, adult siblings, and extended family members. Some cases are court-ordered; others are referred by attorneys, police departments, psychologists/counselors, and human resource centers.
• Juvenile: These cases may be referred to us by the local county juvenile department. They involve juveniles 10-17 years of age who are implicated in property loss or damage.
• Peace Bonds, Civil Matters: At the judge’s discretion, these cases may be ordered to mediation on site at the Justice of the Peace courts. They involve any civil case under $5000.
• Court Annexed Mediation: Cases already in litigation in courts are sent to mediation, and depending on the complexity of the issues and the parties involved, are usually handled by attorney/mediators. These include personal injury, motor vehicle damage, contract disputes, workers’ compensation, sworn accounts, real estate, and insurance problems.
• Insurance: Many disputes involve coverage, premiums, and/or reimbursements of claims.
• Business Agreements: These disputes usually involve business partners and partnership problems or dissolution.
• Consumer/Merchant: Goods that do not work, services that were not rendered properly, payments not made, and repairs more costly than anticipated are the basis for many disputes.
• Employer/Employee: These disputes usually involve circumstances not covered by union contracts or internal employee grievance systems. Included in this care are the following issues: failure to pay wages, job reference information, reason for discharge, leave policies, employee theft or discrimination charges.
• Landlord/Tenant: Disagreements about the upkeep of apartments or rented houses, unwanted entries, noise levels, parking spaces, the time and amount of rent are common sources of disputes. Eviction and non-refund of a security deposit are also frequent causes of conflict.
• Unmarried Couples or Girlfriend/Boyfriend: Sometimes these disputes involve minor children and are about the same issues as elaborated in family law cases. They may also involve harassment, threats, reprisal, or alleged defamation of character.
• Neighbors: Quite commonly, disputes break out between neighbors living next door or across the street from one another. In some cases, an entire block or neighborhood may be involved.
• Dry Cleaners: These disputes concern lost or damaged articles of clothing.

What is the effect of a written settlement agreement?
If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract. The court, in its discretion, may incorporate the terms of the agreement in the court’s final decree disposing of the case. A settlement agreement does not affect an outstanding court order unless the terms of the agreement are incorporated into a subsequent decree. TEX. CIV. PRAC. & REM. CODE ANN. ?154.071