Mediation and other drastic measures: Alternative dispute procedures that work

The four kids had been locked in litigation over their parents’ estate for years. Hundreds of thousands of dollars had been paid for lawyers, handwriting experts, discovery, appraisals and forensic accountants. Each penny spent only solidified the family’s mutual enmity.

The final trial date looming, the parties were frantically preparing exhibits and litigation briefs when their lawyers received an email from the court coordinator. Had they, the coordinator politely inquired, gone to mediation yet? If not, the judge was going to postpone the trial until they had done so.

Ah, mediation. It is one of five procedures included in the Texas Alternative Dispute Resolution Procedures Act (“ADR”), a statute that has been with us since 1987. The other four procedures are: mini-trial, moderated settlement conference, summary jury trial and arbitration.

You don’t have to be in an active lawsuit to use these procedures. Sometimes people who in the midst of a dispute will agree to go through an ADR method to avoid a lawsuit and save money.

Mediation, the most common ADR method, is when the parties use an impartial third party to try to work out a settlement. It usually involves each party in their own conference room, with the mediator going between rooms to talk through the emotions, issues and facts. The mediator’s goal is to negotiate a resolution. If the mediation is successful, then the parties sign a mediated settlement agreement.

A mini-trial is conducted by agreement of the parties. Each party and their attorney present the position of the party to selected representatives of each party or before an impartial third party. The goal is to define the issues and develop a basis for a realistic settlement negotiation. The impartial third party can issue an advisory opinion regarding the merits of the case. The advisory opinion is not binding on the parties unless they agree it is binding. They must still enter into a written settlement agreement.

A moderated settlement conference provides a forum for case evaluation and realistic settlement negotiations. The parties and their attorneys present their positions before a panel of impartial third parties. The panel may issue an advisory opinion on liability and damages. The advisory opinion is not binding on the parties.

A summary jury trial is a forum for early case evaluation and for development of realistic settlement negotiations. Each party and their counsel present the position of the party before a panel of six jurors. The parties can agree on a different number of jurors. The panel may issue an advisory opinion, which is not binding on the parties.

An arbitration is where the parties “try” their case to an impartial third party. Usually, the arbitrator is a lawyer or a retired judge. The arbitrator makes the decision on the case and issues an arbitration award. The arbitration award is binding on the parties. A lot of contracts contain a provision that makes arbitration mandatory and takes away a party’s right to trial by jury or in a court of law.

A court can order the parties in a pending lawsuit to participate in any of the ADR methods. The court should confer with the parties first to determine which ADR procedure is most appropriate. Each party has 10 days to file a written objection to the referral.

Most courts refer their disputed cases to mediation.

As for the four kids – they mediated their case from 9 a.m. until 3 a.m. the following morning. The case settled.

Virginia Hammerle will present “Magnificent Seven Documents” at 11 a.m. on Monday, April 15, at the Dallas Public Library Park Forest Branch, 3421 Forest Lane, Dallas. The presentation is open to the public at no charge. Seating is limited. Reserve a spot by calling the library at 214-670-6333 or visiting https://dallaslibrary.librarymarket.com, selecting Park Forest Branch and clicking on April 15.

Attorney Virginia Hammerle is board certified in civil trial law by the Texas Board of Legal Specialization and an accredited estate planner. Contact her at legaltalktexas@hammerle.com or visit hammerle.com. This column does not constitute legal advice.