The object of this article is to introduce the concept of an ADR Management Agreement and consider its potential for lawyers and their clients engaged in civil litigation. The article also will consider how such management agreements can create new roles for the lawyers and mediators participating in the conflict resolution process.

For the purpose of explaining the scope and nature of the proposed ADR Management Agreement, the article will briefly review ADR processes lawyers and mediators currently use and touch upon some of the salient features of the rapidly expanding field of collaborative and cooperative law. Finally, the article will discuss how lawyers, mediators, and other ADR providers can use an ADR Management Agreement as a vehicle for the development of more efficient, effective, and affordable conflict resolution processes.

 

Overview of Texas ADR

During the past 25 years the field of Alternative Dispute Resolution (ADR) has seen significant change. In the early 1980s when ADR was first gaining a foothold in Texas, most ADR processes were administered by local dispute resolution centers. These centers typically handled “small disputes” such as a complaint about a neighbor’s barking dog. Lawyers seldom were involved. In most cases the mediators were volunteers who had been trained by the center.1

By the mid-1980s Texas lawyers and judges discovered that ADR processes, particularly mediation and arbitration, could be effective in the resolution of a broad range of civil disputes, including complex multi-party cases involving large sums of money. In 1987, the Texas legislature enacted the Texas ADR Procedures Act, which established a new state policy encouraging the use of ADR processes and authorized courts to refer pending litigation to those processes.2 Within just a few years a significant number of lawyers, retired judges and non-lawyers enrolled in ADR training courses and soon began to market their services as private mediators and arbitrators. This infusion of new talent into the private ADR sector heightened competition among ADR professionals and increased public pressure to develop ethical standards of conduct and minimum training requirements for those providing ADR services.3

Today ADR is alive and well-established in Texas. Most Texas courts and lawyers now make regular use of ADR, and many commercial and governmental entities have integrated ADR into their business transactions. Moreover, most ADR associations and institutions have adopted ethical guidelines or “good practice” standards for their members, which tend to assure competency and consistency in the performance of ADR services.

 

Litigation and ADR

The history of the Texas civil justice system is impressive. For some 200 years the civil justice system has provided the people of Texas with a reasonably fair, just and dependable means of dispute resolution. It assures that each individual has a right to legal representation and to trial by jury of peers. It also offers a reasonably predictable result, because the outcome is controlled by precedent.

The traditional court system, however, was not designed to deal with the vast maze of civil disputes created over the past half-century by a highly complex and mobile society. Due to the sheer volume and complexity of today’s civil disputes, litigation has become so time-consuming, costly and stressful that many persons of moderate income can no longer afford to have their disputes resolved in the traditional way.

Although civil cases proceed to trial in much the same way as they always did, current litigation practice involves more extensive use of documentary exhibits and expert witnesses. As a result, trial preparation has become much more complicated and expensive, particularly the cost of dealing with hotly contested discovery issues that require a court’s intervention. Moreover, if the parties become engaged in contentious and arbitrary conduct, that behavior often triggers the escalation of time and cost.

Some members of the bench and bar have expressed concern that ADR may be at least partially responsible for a phenomenon sometimes referred to as the “vanishing jury trial.”4 The gist of their concern seems to be that the increasing use of “private” dispute resolution processes results in a substantial reduction in demand for civil jury trials. They fear such a trend may signal the eventual demise of a “vibrant public court” system.5

To be sure, civil litigants are making increasing use of mediation and arbitration of civil cases, but it is unclear how many of those cases would otherwise have gone to trial. Litigants also seem to favor bench trials over jury trials, but the reasons for that choice are not entirely clear.Without question, civil litigation has become prohibitively expensive for many people and the high cost of litigation is a principal factor in the decline of the civil jury trial. It also seems to be generally agreed that the largest part of litigation cost is the expense of discovery.6

What does this mean to lawyers and mediators? Simply put, it shows that the greatest value of ADR to civil litigants is that it provides the option, means and motivation to reduce the amount of time and expense invested in litigation. In effect, it gives participants the opportunity to review their positions at an early point in the litigation and decide whether an early settlement is in their best interest.

Contrary to the inference reflected in some criticisms, there is no basis for the fear that ADR will eventually be viewed as a substitute or replacement for traditional litigation procedures. In some instances the parties will be better served by a judicial decision or a jury’s verdict.7 But the option of deciding whether and when to settle a dispute should be left with the parties, not with a court or administrative body.

It is often the clients themselves, rather than the lawyers, who first perceive the folly of continuing with extensive litigation. Clients, even those who specifically selected their lawyers based on reputations for being “tough and mean,” may have second thoughts about litigation after being subjected to its continuing rigors. At some point in the litigation process, usually after continuing calls for time and money, many clients begin to search for an honorable way to resolve the dispute so they can move on with their lives.

In some cases the “magic moment” for this client realization may never present itself, and the litigants may be forced to continue their efforts to “win it all.” Unfortunately, clients who find themselves in that predicament sometimes develop feelings of discontent, dissatisfaction, and distrust about their lawyer, the lawsuit, and the judicial process (regardless whether they ultimately win or lose). There seems to be no good reason why civil litigants should have to make an irrevocable choice between litigation on the one hand and ADR on the other. Both dispute resolution methods can coexist within a balanced civil justice system; the challenge is to design a system allowing flexibility for appropriate use of both methods in the most efficient and effective way. Lawyers and their clients can develop a conflict resolution plan that will meet this challenge through the means of an ADR Management Agreement such as that discussed later in this article.

 

The Arbitration Process

The idea of a private, binding out-of-court determination may be appealing to many disputants, particularly if they perceive substantial risks and costs involved in traditional litigation and the prospect of a final outcome is distant or uncertain. Moreover, many perceive arbitration to be “less formal, faster, less expensive, equitable, and a relatively conciliatory way to resolve disputes and avoid unfavorable publicity.”8 Because the parties’ agreement creates the structure for the arbitration process, it may be logical to assume the parties will design the process so that it meets their mutual needs and enables them to avoid the time, expense and stress associated with traditional litigation.9

But experience shows that not all arbitrations are alike. One recurring complaint challenges arbitrations as “not really as fast, simple, streamlined and cheap as advertised.”10 In many cases, the efficiency, speed, and affordability of an arbitration process will depend upon the nature of the dispute, the particular terms of the arbitration agreement, and the experience and temperament of the parties, their lawyers, and the arbitrators. Unless the parties and their counsel are committed to making the arbitration as efficient, fair and affordable as possible, the relative informality of the arbitration process, coupled with the absence of judicial oversight, can create an opportunity for one or both parties to engage in obstructive and uncooperative behavior. If that situation occurs, the parties may have to spend excessive amounts of time and money in a frustrating effort to obtain a reasonably fair, just and enforceable decision. Moreover, parties who agree to arbitrate disputes forego their rights to a bench or jury trial as well as appellate review.11

In recent years two somewhat different types of arbitration have developed in the United States. One type, sometimes called “commercial arbitration,” has long been the established model for the conduct of binding arbitration in commercial transactions. The other type, sometimes referred to as “consumer” or “employment” arbitration, has been the subject of a growing body of law focused on arbitration agreements issued by business institutions such as credit card companies, lenders, and builders of residential and mobile homes. Typically, the arbitration provision is contained in an agreement submitted to consumers or employees for signature without affording them the opportunity to negotiate its terms or to have it reviewed by an attorney. For obvious reasons, there is growing concern among lawyers, judges, consumer groups, and legislators about the need for additional consumer and employee protection in this field.

Although some might question whether it is appropriate to label binding arbitration an ADR process, an effectively administered arbitration is unquestionably one of the most cost-effective dispute resolution methods. Certainly, when lawyers and their clients are reviewing the merits of out-of-court dispute resolution tools, they should carefully consider the arbitration process. Also, as discussed below, the arbitration process can be incorporated into a series of ADR methods in the ADR Management Agreement.

 

The Mediation Process

It seems likely that most, if not all, civil practitioners are acquainted with the mediation process and aware of its potential benefits for their clients. Most proponents of mediation have praised the process as a “better way” to resolve disputes, preserve relationships, and avoid the time, cost and stress associated with adversarial proceedings. However, some have expressed concerns about the efficiency and effectiveness of the mediation process.

Most complaints about mediation are directed at mandatory mediation processes such as those required by court rules or orders. Usually asserted by the lawyers for one or both parties, criticisms include concern over compelled participation in mediation and the expenditure of scarce time and resources on an event that offers little or no assurance of success. Moreover, they contend, commercial mediations cost too much for the results achieved, and too often the mediator does not expeditiously move the parties into meaningful negotiations, resulting in wasting the first half-day of the mediation process on lawyer posturing and party stonewalling.

Others have expressed concern about lawyers’ conduct during the mediation process. These complaints—ranging from insulting and disparaging remarks to downright lying and obstructive behavior—suggest that some lawyers, for one reason or another, project a contemptuous attitude toward the mediator and the mediation process.12 Fortunately, it appears most lawyers demonstrate respect for the mediator and the mediation process, and that only a small minority seem to forget their professional responsibility by, for example, engaging in an often counterproductive attempt to manipulate the mediator and opposing counsel. Notably, the Texas Supreme Court has adopted ethical rules of conduct for mediations and mediators, which expressly require lawyers to conduct themselves in the same manner as if appearing in court. They must also cooperate with the court and the mediator in both the initiation and conduct of the mediation.13 Once lawyers gain greater familiarity with this rule, it should help mediators maintain an atmosphere of civility and respect among the participants in the mediation process. The ADR Management Agreement sets forth a number of express commitments on the part of the lawyers and their clients to conduct themselves in a responsible manner during the course of the ADR process.

 

The Collaborative Law (CL) Concept

Since early 2000, a new dispute resolution process known as “collaborative law” has swept across Texas, especially in the family law field.14 This “phenomenal recent growth of interest” in the collaborative law concept is said to reflect the “deep discomfort” felt by many lawyers and their clients with the traditional adversarial system.15 For several decades legal writers in the dispute resolution field have questioned the “apparently intrinsic bias of litigation against cooperative problem solving outcomes for clients.” 16 Legal commentary has focused on the “increasingly adversarial and ‘uncivil’ character of much civil litigation, especially commercial litigation; the abuse of discovery practices; the pressure to compete rather than cooperate; and the absence of a set of cultural behaviors that enable lawyers to have productive discourse with one another.17 Collaborative law represents a shift away from lawyer-to-lawyer bargaining toward a cooperative negotiation process that involves both the clients and the lawyers.

 

The CL Participation Agreement

The procedures governing the collaborative law process are set forth in a “Participation Agreement,” which is signed by all parties and their counsel.18 In a CL Agreement, the parties and their counsel commit themselves to engage in good faith face-to-face negotiations to resolve the dispute without resorting to litigation. Specifically, they agree to work collaboratively to:

•  Identify client goals and interests, analyze issues and develop alternative solutions;

•  Empower the clients to make informed and voluntary decisions;

•  Make full disclosure of relevant information;

•  Maintain confidentiality; and

•  Engage in good faith settlement negotiations.

The CL Agreement also provides that parties will be represented solely by their respective lawyers in the collaborative law process, which emphasizes the parties’ interests and development of options for the constructive resolution of the dispute. The agreement further provides that the parties will discuss resolution of issues only with each other during the settlement conferences; will not take advantage of known mistakes, errors of fact or law, miscalculations or other inconsistencies, but shall identify and correct them; and may agree to discuss the likely outcome of a litigated result but will not threaten litigation or other adversarial proceedings.

The CL Agreement also memorializes the parties’ commitment to make a “full and candid exchange” of all information, documents and tangible items in their control (and) on which they rely, and to jointly retain neutral experts such as financial and mental health advisors and mediators. It also provides that either party may terminate the process at any time and, further, if a party chooses to terminate, all lawyers must withdraw from representation and may not serve as a litigation lawyer in the matter or in any other adversarial proceedings among the parties. A lawyer may withdraw unilaterally from the collaborative process for any reason upon giving three days written notice to the client, the opposing parties and all counsel.

An optional addendum of the standard participation agreement states that if the parties reach an impasse in a mediation process conducted during the collaborative process and do not want to continue settlement negotiations, they “shall” either terminate the process and proceed to litigation or select a single arbitrator (or panel of three arbitrators) and participate in a binding arbitration.

 

Statutory Recognition

Texas was one of the first of several states that have endorsed the collaborative law concept in family law cases. In 2004, the Texas legislature enacted two related statutes that expressly encourage the use of collaborative law in family law cases.19 (In 2007, a similar legislative bill was introduced, which would have extended the collaborative law protocol to all civil litigation, not just family law cases. That bill, however, was not enacted into law.)

The collaborative law provision in the family law statutes describes the collaborative law protocol as “a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without judicial intervention except to have the court approve the settlement agreement, make legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate.” The statutes also provide for the withdrawal of the parties’ attorneys if the dispute is not settled by agreement and for suspension of the court’s intervention during the first two years of the collaborative law procedures.

 

Concerns About Collaborative Law

The Texas bench and bar do not appear to have mounted any major challenge to the use of collaborative law protocols in the family law field. However, some have expressed concerns about several procedural aspects of the collaborative law protocol. Specifically, the following three components of the participation agreement seem to generate the most concern:

1.  The provision requiring the parties’ counsel to withdraw from further representation if a settlement is not reached. (The concern is that this obligates the lawyer to retreat from his or her professional commitment to provide continuing assistance to the client during the entire course of the litigation.)

2.  The provision that precludes that intervention of the court during the two-year period stipulated for negotiations. (The concern is that this provision might prejudice the rights of third party litigants who are not signatories to the participation agreement.)

3.  The provision requiring the parties to make full disclosure of all documents and information in their control. (The concern is that this provision might place a party’s counsel in a conflict of interest situation.)

 

Ethical Considerations

In 2006, the Colorado Bar Association adopted its Ethics Committee’s Opinion 115, entitled “Ethical Considerations in the Collaborative and Cooperative Law Contexts.” In this opinion the Colorado Bar’s Ethics Committee concluded that the practice of Collaborative Law violated Rule 1.7 (b) of the Colorado Rules of Professional Conduct insofar as a lawyer participating in the process enters into a contractual agreement with the opposing party requiring the lawyer to withdraw in the event the process is unsuccessful. The Ethics Opinion further concluded that pursuant to Colo. RPC 1.7(c), the client’s consent to waive this conflict could not be validly obtained.

In two footnotes in its opinion, the Ethics Committee: (a) recognized that other ethics committees and bar associations had found similar agreements to be ethical but suggested revision of Colorado’s rules of professional conduct would be necessary for such a result to obtain in Colorado, and (b) noted that parties could agree between themselves to terminate their lawyers if they did not reach a settlement and, further, that the rules of professional conduct did not prohibit a lawyer from participating in the collaborative law process so long as the lawyer was not a party to the contractual obligation to terminate.20

The Colorado Ethics Committee distinguished the provisions in the collaborative law agreement from those in a very similar “cooperative law agreement,” which did not require the lawyer to contractually agree with the opposing party to withdraw if a settlement was not reached. Thus, the Ethics Committee opined that a lawyer could ethically participate in a “cooperative law” process if the lawyer otherwise complied with the Rules of Professional Conduct and the client (a) was adequately advised of the possible downsides of the cooperative commitment; and (b) possessed the ability to understand, deliberate, and make rational decisions about the advisability of making such commitments.

The collaborative law concept appears to be firmly established in the Texas family law field and there does not seem to be any substantial obstacle to its further expansion in that area. Whether or not collaborative law procedures will eventually be deemed appropriate for general civil litigation remains to be seen. The author has discussed those procedures here, along with the cooperative law approach, because of their close relationship with the procedural aspects of the ADR Management Agreement.

 

The ADR Management Agreement

• New Role for Lawyers.

There are a number of ADR agreements now in use in mediation, arbitration and other conflict resolution fields. But most ADR agreements have a singular focus, covering only the party’s agreement with respect to a particular ADR process such as mediation or arbitration. Rarely do such agreements combine a series of ADR processes in one omnibus document in a manner that enables the lawyers and their clients to choose one or more processes for use in a particular sequence while maintaining focus on the overall ADR management strategy.

The ADR Management Agreement represents a somewhat different approach to existing conflict resolution procedures. Its key ingredient is that lawyers and their clients maintain continuing managerial control and responsibility for all ADR procedures specified in the contract, including the general supervision of jointly retained mediators and other neutrals that may be assigned specific responsibilities. In a manner similar to the collaborative law and the cooperative law agreements, the commitment of the lawyers and their clients under the ADR Management Agreement continue in effect throughout the life of the agreement.

By carefully crafting the provisions of the ADR Management Agreement to fit the probable needs of the particular dispute, the parties and their counsel can plan for the contingency of a possible impasse in their negotiations and also assure the good faith continuance of their negotiations through a successive series of ADR-related exercises. For example, if the parties find they are unable to reach a settlement after completing their initial negotiations, their agreement can provide for the retention of a jointly selected mediator or communication coach. Thus, the agreement can be fashioned so that the parties move through a sequential series of ADR events, e.g., negotiations, mediation, issue identification and case evaluation, and trial by special judge or private arbitration. The agreement can also be written to contemplate limitations of liability and enforcement of awards through customary banking transactions.

Obviously, the lawyers responsible for the conduct of ADR activities under the ADR Management Agreement will need a good working knowledge of the various ADR procedures, as well as the skills to successfully orchestrate all activities contemplated by the agreement. In this regard the parties and their lawyers can usually benefit from the services of an experienced Conflict Resolution Consultant to advise them with respect to the efficient application and development of all ADR activities contemplated under the Agreement.

 

• New Roles for Mediators.

Mediators and other neutrals selected to perform services under an ADR Management Agreement also will need to develop special skills to carry out their assigned activities. Because the mediator’s responsibilities may extend to ADR processes other than mediation, such as a summary jury trial or other neutral case evaluation process, the mediator should have a good working knowledge of all relevant ADR processes, including binding arbitration and Trial by Special Judge. Preferably, the lawyers responsible for the conduct of the ADR Management process will be able to help their clients select facilitators who best meet their particular needs and who can assist the parties in developing objective evaluations of their positions and in participating in state-of-the art settlement negotiations, either face-to-face or through online communications, as the circumstances warrant.21 If the parties should reach an impasse in their settlement negotiations, the mediator should be prepared to help them identify any remaining contested issues that may be appropriate for final disposition by an arbitrator or special judge.

 

Drafting the ADR Management Agreement

The major problem encountered in drafting an ADR Management Agreement is that no “one size fits all.” A “best practice” procedure for one type of dispute may not be the best method for resolving a different kind of conflict. Moreover, even if the parties have an agreement governing the overall ADR procedure, it may not adequately define the respective roles of the various individuals participating in the process. For example, even though a mediation agreement may stipulate a sequence of ADR events to be followed by the parties—e.g., moving the parties through negotiation, mediation, case evaluation, and finally into a binding arbitration process—the agreement may not sufficiently define the respective roles of the clients and their counsel in the overall management of the ADR procedure. This lack of clarity about management responsibilities can lead to misunderstanding, disagreement and eventual stalemate.

Lawyers engaged in drafting an ADR Management Agreement should carefully consider the advisability of including provisions similar to those found in a typical collaborative law or cooperative law agreement. But the terms of the agreement should be as flexible as possible so that responsibilities can be shifted and reassigned as needed. In some cases it may be prudent for the parties to wait until after discovery and preliminary settlement negotiations have begun before deciding how and when further settlement processes should be initiated. The Appendix to this article lists many principal components of an ADR Management Agreement, which may be helpful as a starting point in the parties’ drafting effort

ADR Management Agreement List of Components Commitments of Parties and Counsel: •    All parties and their counsel agree to treat one another with civility and respect; •    All parties and their counsel agree to conduct their communications in a manner that does not mislead or deceive; •    All parties and their counsel agree to examine the dispute from the standpoint of the other side and make an objective evaluation of each side’s positions in the matter; •    All parties agree to make a good faith effort to resolve the issues in dispute through good-faith negotiations and cooperative problem solving. Full Discovery:Each party agrees to disclose all information needed by the other party for the purpose of entering into meaningful settlement negotiations. This does not require one party to provide the other with every document relevant to the dispute – only that each party will make full disclosure of all relevant documents needed by the other party to make a “voluntary and informed” decision regarding the appropriate resolution of the dispute. Confidentiality:The parties agree to a standard confidentiality provision of the type often found in most mediation and arbitration agreements. If mutually agreed the parties may obtain a written transcript of their negotiations for the purpose of tracking and review. Retained Neutral Experts:The parties agree to jointly retain neutral experts including mediators and other ADR facilitators needed to perform specific services for the parties. The advice received from the neutrals will be impartial, confidential, and have limited use in the procedure. Objective Evaluations and Sequence of Events:  The  parties  agree to develop an objective confidential evaluation of the risks and costs associated with their respective positions and the probable outcome of any litigation. This evaluation can be accomplished by the use of a computer-assisted exercise such as the CAN-WIN™ system, or through the services of a neutral evaluator retained for that purpose. During the course of further negotiations, the parties will continue their good faith efforts to identify and analyze the issues and interests, make an objective evaluation of their positions, and resolve the dispute through interest-based negotiations and the development of alternative solutions. If the parties are unable to reach a resolution within 30 days of the termination of the negotiation period, they jointly will retain the services of a mediator or other facilitator. If that effort does not result in a settlement, they will then seek the services of a neutral evaluator for a non-binding (or binding) evaluation. If those negotiations do not produce a settlement within an additional 30-day period, they will submit any remaining disputed issues to a jointly selected independent arbitrator for a final, binding and enforceable arbitration award. In that regard, the parties may limit the amount of the award by specifying a high or low range of the potential recovery.22 Termination of Agreement:  The Agreement may be terminated by either party at any time, with or without cause, upon giving the other party 30 days written notice, but such termination will not discharge any obligations of performance existing before the giving of notice of termination.

Consequence of the ADR Management Agreement

Are there risks involved in participating in an ADR Management Agreement? Is it conceivable that a skillful, clever, and manipulative lawyer, or an unscrupulous overbearing client could take unfair advantage of a naïve, inexperienced lawyer and a timid non-assertive client to obtain an unconscionable one-sided outcome?

The answer to this question has to be “Yes, of course.” But the same answer would apply to any settlement process involving individuals with different personalities, skills, and experience – even a process being monitored by a supervising judge or arbitrator.

So, what if anything can be done to level the playing field in out-of-court settlement negotiations? A simple answer is that lawyers, mediators, and other ADR professionals need to develop the necessary skills and design their contractual relationships in a manner to minimize adverse and unintended consequences. To a large extent, this can be accomplished by including specific provisions in the governing agreement. By express provision in their contract, the parties can evidence their expectations that all negotiations will be conducted in good faith and their mutual understanding that either party can call a halt to the cooperative process if the other participant shows an unwillingness to live up to the agreement.

Of course, it would be desirable if contractual commitments could provide the continuing assurance that all parties will perform in good faith throughout the life of the negotiation process. But that kind of assurance is not likely to be a realistic expectation until there has been some major change in the traditional settlement culture.

The use of an ADR Management Agreement that contains the commitments of the parties and their counsel to engage in good faith settlement negotiations should encourage responsible conflict resolution strategies because most lawyers can reasonably be expected to live up to those commitments. If nothing more, the expanding use of such agreements might serve as a starting point for a change in the negotiation culture. As one senior trial judge was heard to remark: “It [the agreement] may not work perfectly or all the time, but we sure have to start somewhere.”

 

Conclusion

The procedural obstacles encountered in traditional litigation often result in such delay and expense that many litigants cannot afford to seek judicial relief. If the ADR Management Agreement is administered in good faith and with reasonable diligence, it should result in time and cost savings that will assure greater satisfaction to the lawyers and their clients. It should also provide a suitable platform for further development and testing of new dispute resolution procedures in the field of general civil litigation.          

The Hon. Frank G. Evans, a former chief justice of the First Court of Appeals, is the founding director of the Frank Evans Center for Conflict Resolution at South Texas College of Law. Evans, recognized as the “Father of Alternative Dispute Resolution in Texas,” is also the founding chair of the Houston Bar Association Committee on ADR and the president of Resolution Forum, Inc., a non-profit organization dedicated to the improvement of dispute resolution processes through research and development. Special thanks to Tasha Willis, program administrator, and Rafael T. Boza, Ryan Wooten, and Clif Alexander, research assistants at the Frank Evans Center for Conflict Resolution, for their research and editing assistance.

This article is dedicated to the late R. Hanson Lawton, professor and director of the Frank Evans Center for Conflict Resolution at South Texas College of Law. Professor Lawton provided the inspiration for this article through his continuing efforts to “Integrate ADR Processes Into
the Common Law Tradition.”

 

Endnotes

1. Melinda Ostermeyer, 1986 Dispute Resolution Annual Report, The Hous. Law., Hous. B. Ass’n Special Issue, 1987, at 14; Kathy Bivens-Norris, Community Dispute Resolution Centers, inAlternative Dispute Resolution Handbook 413 (Kay Elkins Elliot et al. eds., 3rd ed., 2003).   2.Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001-154.073 (Vernon 2005).   3. Suzanne Duvall, et al., Ethics, Alternative Dispute Resolution Handbook,  note 1, at 485.   4. Patricia Lee Refo, The Vanishing Trial, 30 J. Sec. Litig. A.B.A., Winter 2004, at 1;  Justice Nathan L. Hecht, The Vanishing Civil Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S. Tex. L. Rev. 163 (2005).   5. Chief Justice Wallace B. Jefferson, The State of the Judiciary in Texas, Address before the 80th Texas Legislature (Feb. 20, 2007), inTex. B.J. 314 (Apr. 2007).   6. Hecht, supra note 4.   7. St. Bar. Tex. A.D.R. Sec., Dispute Resolution, Texas Style 11 (3rd ed., 2006) (explaining that the purpose of A.D.R. is not to do away with trial by jury).   8.See Doak R. Bishop, Arbitration, Alternative Dispute Resolution Handbook, note 1, at 60.   9.Id.   10. Robert E. Shapiro, I Hate Arbitration (Most of the Time), in 30 J. Sec. Litig. A.B.A., supra note 4, at 36.   11. Bishop, supra note 8 at 61.   12.See James Alfini, Settlement Ethics and Lawyering in ADR Procedings: A proposal to Revise Rule 4.1, 19 N. Ill. U.L. Rev. 255 (1999);  Kimberlee Kovach, Mediation, Alternative Dispute Resolution Handbook, note 1, at 51 (stating that some lawyers feel compelled to conduct themselves as though mediation is an adversarial process; unfortunately such overly aggressive presentations tend to obstruct settlement).   13. Appendix B § 7, inAlternative Dispute Resolution Handbook, note 1, at 538;  See also Eric R. Galton, Mediation Advocacy, Alternative Dispute Resolution Handbook, note 1, at 463.   14. Gay M. Cox et al., The Case for Collaborative Law, 11 Tex. Wesleyan L. Rev. 45 (2004) (informing that lawyers with collaborative law training formed the Collaborative Law Institute of Texas Inc. (CLI-TX) a statewide organization that now boosts over 400 members)   15. Dr. Julie MacFarlane, Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project, 2004 J. Disp. Resol. 179 (2004).   16.Id. at 180.   17.Id. at 194.   18. To obtain a copy of the Collaborative Law Agreement please contact the Collaborative Law Institute of Texas, at 972-386-0158.  The CL Agreement will be provided “as a guideline for use by licensed attorneys who are trained in the collaborative dispute resolution process.” See also www.collablawtexas.org.   19.Tex. Fam. Code Ann. § 6.603 (Vernon 2005), applicable to divorce actions without children, and Tex. Fam. Code Ann. § 153.0072 (Vernon 2005), applicable to actions affecting the parent-child relationship;  See also John V. McShane, Texas in the Forefront, Tex. Law., Dec. 24, 2001, at 43 (2001) (explaining that the statute would allow a case involving the collaborative law processes to be exempt from scheduling order, or other procedural guidelines otherwise applicable, for up to two years to permit full utilization of the process).   20. Colo. Ethics Comm., Formal Op. 115, 5 n.11 (2006), available at http://www.cobar.org/group/display.cfm?GenID=10159&EntityID=CETH.   21.See Hon. Frank G. Evans et al., Enhancing Worldwide Understanding Through ODR: Designing Effective Protocols for Online Communications, 38 U. Tol. L. Rev. 423 (2006) (online dispute resolution (ODR) has been found to be a preferable communication tool for many long-distance settlement negotiations).