Mediation in Civil Cases

An Effective Means of Settling a Lawsuit

Mediation is a form of settlement negotiation conducted and assisted by an impartial attorney trained in the art of settling lawsuits.  Unlike Arbitration and other kinds of alternative dispute resolution, Mediation is non-adjudicatory.  The mediator makes no findings of fact or law, whether binding or non-binding.

The mediation process, a private meeting, is generally comprised of three (3) stages. First, all parties and their counsel meet with the mediator in a general session.  During this session, the mediator explains the process and sets forth the ground rules.  Afterwards, each attorney outlines his or her client’s theory of the case and the legal and factual issues. The clients are encouraged to speak, but are not required to do so.

After the general session, the parties separate to different conference rooms for private meetings called “caucuses,” the second stage of mediation. These caucuses are confidential.  Anything said to the mediator during a caucus cannot be repeated outside the caucus except by express permission of the party. This confidential meeting allows the counsel to express matters that he or she would be unwilling to state in the presence of opposing counsel. Here, the mediator, the party, and counsel undertake a candid discussion of risks, the party’s interests sought to be protected, settlement flexibility, and strengths and weaknesses of the case.  The mediator asks clarifying questions, determines areas of agreement and inquires as to the status of prior settlement negotiations. At some point during the caucus stage, the mediator will begin serving as a shuttle diplomat between the parties, sometimes expressing his/her own opinion as to a party’s particular position and of course conveying settlement offers back and forth.

When it appears that a consensus has been reached, the third and final stage, closure, is reached.  The mediator assists the parties in memorializing the essential terms of the agreement in writing which is then signed by each party.

The entire process is privileged and confidential. The law in Texas prohibits the mediator or any party from telling the Court anything said during the mediation.  The mediator may report whether the case is settled.  See TEX. CIV. PRAC. & REM. Code § 154: TEX. R. EVID. 604*

Rules for Mediation

  1. Mediation is a process under which an impartial person, the Mediator, facilitates communication between parties to promote reconciliation, settlement or understanding among them.  The Mediator may suggest ways of resolving the dispute and opining on the issues raised by the parties.
  2. Agreement of Parties.   Whenever the parties have agreed to mediation they shall be deemed to have made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement to mediate.
  3. Consent to Mediator.  The parties consent to the appointment of the individual named as mediator in their case.  The Mediator shall act as an advocate for resolution and shall use his/her best efforts to assist the parties in reaching a mutually acceptable settlement.
  4. The mediator will only serve in cases in which the parties are represented by attorneys.  The Mediator shall not serve as a Mediator in any dispute in which he/she has a financial or personal interest in the result of the mediation.  Prior to accepting appointment, the Mediator shall disclose any circumstances likely to create a presumption of bias or prevent a prompt meeting with the parties.  In the event that the parties disagree as to whether the Mediator shall serve, the Mediator shall not serve.
  5. The Mediator does not have the authority to decide any issues for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties.  The Mediator is authorized to conduct joint separate meetings with the parties and to offer suggestions to assist the parties to achieve settlement.  If necessary, 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 parties, as the Mediator shall determine.
  6. While no one is asked to commit to settle their case in advance of mediation, all parties must commit to participate in the proceedings in good faith with the intention to settle, if at all possible.
  7. 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.
  8. 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.
  9. The Mediator shall fix the time of each mediation session.  The mediation shall be held at the offices of the Mediator, or at any other convenient location which is agreeable to by the Mediator and the parties, as Mediator shall determine.
  10. At or before the first session, the parties will be expected to produce all information reasonably necessary for the Mediator to understand the issues presented. The Mediator may require any party to supplement such information.
  11. Mediation sessions are private.  The parties and their representatives may attend the mediation sessions. Other persons may attend only with the permission of the parties and the consent of the Mediator.
  12. Confidential information disclosed to a Mediator by the parties or by witnesses in the course of mediation shall not be divulged by the Mediator.  All records, reports or other documents received by a Mediator, while serving in that capacity, shall be confidential. The Mediator shall not be compelled to divulge such reports or to testify in regard to the mediation in any adversary proceeding or judicial forum.  Any party that violates this agreement shall pay fees and expenses of the Mediator and other parties, including reasonable attorney’s fees, incurred in opposing the efforts to compel testimony or records from the Mediator.
  13. The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in arbitral, judicial or other proceeding: a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute; b) admissions made by another party in the course of the mediation proceedings; c) proposals made or views expressed by the Mediator; d) the fact that another party had or had not indicated willingness to accept a proposal for settlement made by the Mediator.
  14. There shall be no stenographic record made of the mediation process and no person shall tape record any portion of the mediation session.
  15. No subpoenas, summons, complaints, citations, writs, or other process may be served upon any person at or near the site of any mediation session upon any person entering, attending, or leaving the session.
  16. The mediation shall be terminated by: a) the execution of a settlement agreement by the parties; b) declaration of the Mediator to the effect that further efforts at mediation are no longer worthwhile; c) after the completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.
  17. Exclusion of Liability.  The Mediator is not a necessary or proper party in judicial proceedings relating to mediation.
  18. The Mediator shall interpret and apply these Rules for Mediation.
  19. The Mediator’s daily fee shall be agreed upon prior to mediation and shall be paid in advance of each mediation day.  The expenses of witnesses for either side shall be paid by the party producing such witnesses.  All other expenses of the mediation, including fees and expenses of the Mediator, and the expenses of any witnesses and the cost of any proofs or expert advice produced at the direct request of the Mediator, shall be borne equally by the parties unless they otherwise agree.

*In Federal Court, privilege and confidentiality are achieved by Order and/or agreement.