Saturday, March 17, 2007
What is Mediation?
Mediation is a confidential process used to resolve conflicts. An impartial mediator directs the process and facilitates the communication between the parties. Often the courts order the parties to mediation before scheduling a trial. The mediator explores solutions and attempts to obtain a mutally satisfactory agreement. The mediator will not provide legal or professional advice. The mediator does not draft the final legal paperwork. I prefer when the parties have their attorney present at mediation. Mediation can be used in all civil cases. It is very popular for conflicts between neighbors, families, merchant and consumer, and landlord and tenant. The parties agree to participate in good faith, the discuss their points of view, and to explore options that may lead to mutally agreeable solutions. A mediator is a person who has attended at least one 40-hour course in the mediation process. The ole of the mediator is to remain impartial. The mediator listens to both sides, attempts to clarify all issues and then facilitates communication to help the parties reach a settlement. The mediator traditionally begins the mediation process by explaining his/her role, explaining the mediation process and has the parties sign that they understand the rules of mediation. If a settlement is reached, it is binding on the parties and they cannot change their minds once they leave the mediation. If an impasse is reached, the mediator only reports to the court that the parties attended in good faith and that a settlement could not be reached. You cannot be forced to settle. Sometimes the parties agree to a partial settlement. They agree to take the unresolved issues to trial. Additionally, if a parties refuses to attend mediation, the mediator reports this to the court. If a settlement is reached, the court cannot later overturn the mediated settlement. Mediation is flexible, economic, fast and confidential. If the case goes to trial, no part of the discussion of mediation can be mentioned at trial. The mediator cannot be called as a witness at trial. All offers mentioned at mediation are inadmissable at trial. In Texas there are many mediator websites. I'm a member ofThe Texas Association of Mediators at www.txmediator.org. I also belong to some other Alternative Dispute Resolution groups for attorneys and/or mediators.