The Alternative Dispute Resolution Section of the State Bar of Texas celebrates its 20th anniversary this year, an event duly noted at the State Bar of Texas Convention. We reflect on the Alternative Dispute Resolution (ADR) movement and the incredible journey we have witnessed, from no mediation in cases as recently as the 1980s, to a legislative and judicially mandated procedure today.

In 1987, the Texas Legislature enacted the Alternative Methods of Dispute Resolution Act.1 This statute revolutionized old concepts of settling cases and ushered in what is now our world of ADR. As we navigate through the pathway of mediation, it is helpful to consider certain parts of the Act:

§ 154.021 This provision authorizes the court, on its own motion or that of a party, to refer a pending matter to mediation.

§ 154.022 After notification of the selection of ADR, a party may object to the procedure within ten days.

Mediation has evolved as a preferred ADR choice, in part because of the high success rate and voluntary nature of the process.2 Three specific forms of mediation have developed: the open caucus format where all the parties are together, the closed caucus format where the parties are in separate rooms, and the transformation style where the mediator never offers opinion, but merely facilitates the parties’ conversation (popular in U.S. Postal System mediations).

The Act requires that the mediator remain impartial, have a 40-hour training plus an additional 24 hours of training for family law matters,3 not coerce the parties to settle,4 and charge only a reasonable fee5 (unless it is pro bono, where the mediator is provided with qualified immunity).6 As with any professional endeavor, once it grows in acceptance (and mediation has), issues arise over regulation, whether governmental or self-imposed. Organizations such as the Association of Attorney Mediators and the ADR Section of the State Bar have promulgated guidelines or standards of conduct, to be followed, which have greatly improved the profession.

Another part of the popularity of the mediation process is that it provides for a binding settlement agreement7 which can be enforced in court. This concept has been confirmed further in other statutes and codes.8 The Texas Family Code requires that the mediated settlement agreement (MSA) be signed by both parties and their attorneys, state in bold type that the MSA is not revocable, and set forth all essential terms and conditions of the settlement.9 If this is done, the MSA will be enforced by the court.10 However, since the court cannot vary the terms of the MSA,11 those involved in MSA preparation must be careful and certain of its completeness, as well as the legality of the subject matter. A court will not enforce an MSA built on an illegal requirement.12

Techniques have developed over the years to deal with problems caused by a later-determined lack of clarity in an MSA. One such technique is the inclusion of a provision in the MSA which designates a third person to resolve any glitches through binding arbitration. Thus in cases where the parties specifically agree, arbitration is engrafted into the mediation process. This arbitration is generally well received, but careful attention should be given to the arbitration clause, as well as to whom the arbitrator will be. Otherwise, the unwitting may later find that he did not realize the scope, finality, or total consequences of the arbitration clause.  In addition, it should not be a forgone conclusion that the mediator will serve as the arbitrator.13 Another important aspect of the Act which has increased its popularity is the confidential nature of the mediation,14 the exception being a statutory requirement that issues of child abuse or neglect must be disclosed.15

We have now experienced 20 years under the Act and have received judicial interpretation on many knotty problems. One classic example of such interpretation is that while an attorney does not have to settle the client’s case at mediation, he or she can be sanctioned for not showing up for a mediation.16

With the basic understanding of the Act that the foregoing provides, we should take notice of how a few professionals’ dream—mediation instead of litigation—has in 20 years developed into an entire cottage industry. The first person I knew who created and conducted the educational classes required under the statute was Steve Brutsche, a Dallas resident of blessed memory, and an original pioneer. I remember being a part of his first class in Houston in 1989, in which my classmates included such distinguished attorneys as Tommy Proctor (our HBA president) the Honorable Nancy Atlas (while still a practicing attorney), Mark Glasser, and Gary McGowan.17 From that class, the rest is history!

The movement was slow in coming at first, and these early disciples understood the arduous process of educating the judiciary as to the merits of mediation.  Judges and the Bar experienced first-hand knowledge of the settlement success rate and the Bar’s generally favorable reaction.  Local court rules were established mandating mediation in most cases.  The next growth cycle occurred when the ADR Section of the Houston Bar was established in 1995-96, with its first chair being the Honorable John Coselli, whose leadership brought further prominence to the mediation process. From an appellate law standpoint, former Court of Appeals Justice Frank Evans and former Supreme Court Justice Ruby Sondock were among the first justices who helped craft rules and procedures and who recommended mediation at the appellate level. Many outstanding members of the Bar devoted their practice exclusively to ADR. Other sections of the HBA followed their lead, including the Family Law Section, which now mandates mediation as a venue for almost every disputed divorce and modification (and other family law issues). A special thanks should be extended to the leadership of the Family Law Bar. Their efforts have effectively nurtured mediation and, I believe, have had a substantial impact on family law cases. Some of the family law pioneers in this area include Don Royall, Harry Tindall, Maureen Peltier, Don Graul and Norma Trusch, who all continue to give richly to our profession.

An offshoot of the mediation movement is Collaborative Law, whose genesis is mainly founded in family law. Instead of the principal focus being on the neutral facilitator (mediator), the settlement power has shifted to the parties themselves, meeting and collaborating in the same spirit that mediation brings parties together. Face to face, clients and their attorneys work in tandem in four-way meetings under prescribed guidelines.18 Through the work of the same Family Law Section leaders mentioned above, the Collaborative Law Section of the HBA was formed in 2005-06 with Brenda Keen as its first chair.

In the coming years it will be interesting to see not only where mediation and collaboration lead us, but what new and creative offshoots they will foster. It is clear from this history, that mediation has been a welcomed adjunct to Texas jurisprudence: it significantly decreased the courts’ case load, and has helped quiet, for now, the bi-annual plea to the Legislature to create new courts. For those of us who take pride in being a part of the greatest court system, this has been a great 20 years, thanks in part to the mediation process which saves money and expedites settlement.

An important perspective to keep in mind within mediation is the certification or credentialing of mediators and imposing standards of impartiality. In April 1994, the ADR Section of the State Bar of Texas adopted the following ethical guidelines for mediators under the auspices of the Texas Mediator Credentialing Association (TMCA):

1.  TMCA Credentialed Distinguished Mediator;

2.  TMCA Credentialed Advanced Mediator; and

3.  TMCA Credentialed Mediator.

One of the most important concerns of mediation is ensuring the integrity of the process—that mediators are impartial and competent in the subject matter of the controversy. Through efforts by the Bar and TMCA, it is hoped that the quality of mediators will continue to improve, thus becoming an even more effective settlement process. Mediators themselves should consider the need for making appropriate disclosures to ensure that appearances of impropriety, such as frequently serving as mediator for one party or attorney, special relationships,19 or financial interests with a party or attorney do not exist.20

In summary, on behalf of the Bar I thank all of the pioneers for their hard work. I am satisfied that as the quality of our education programs continue and the field continues to attract our brightest and best, the future of our peacemakers is in secure hands.

The Hon. Alvin L. Zimmerman is chairman of the board, director and shareholder of the law firm Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. His broad-based legal experience includes serving as judge of the 269th (Civil) and 309th (Family)District Courts. He is a Certified Advanced Mediator and is president-elect of the Board of Governors of the International Academy of Mediators.

 

Endnotes

1.See Tex. Civ. Prac. & Rem. Code Ann., tit. 7, § 154 (Vernon 1987). The name of the title was amended in 1984 to its current form.   2. Parties can frequently choose their own selected mediator and they must agree to the settlement of the controversy on the parties’ own terms or no settlement at all.   3.Id. at § 154.052.   4.Id. § 154.053.   5.Id. § 154.054.   6.Id. § 154.055.   7.Id. § 154.071.   8. § 154.071; Tex. Fam. Code Ann. § 6.602 (Vernon 1999).   9. § 154.071; § 6.602.   10.SeePadilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995).   11.SeeGarcia-Udall v. Udall, 141 S.W.3d 323 (Tex. App.–Dallas 2004, no pet.); Cayan v. Cayan, 38 S.W.3d 161 (Tex. App.–Houston [14th Dist.] 2000, pet. den.); contraBeyers v. Roberts., 199 S.W.3d 354 (Tex. App.–Houston [1st Dist.] 2006) in which the Court altered the MSA when the time provided for the start of school to be changed to a later date when the date stated was not possible.   12.In re Kasschau, 11 S.W.3d 305 (Tex. App.–Houston [14th Dist.] 1999, no pet.). The court held that the MSA would not be enforced because the subject matter consisted of the destruction of an illegal tape recording.   13.See alsoIn re Cartwright, 104 S.W.3d 706 (Tex. App.–Houston [14th Dist.] 2003). A court-appointed mediator is not permitted to serve as arbitrator where the parties did not agree in advance of the mediation and confidential information from the mediation was used.   14. Tex. Civ. Prac. & Rem. Code Ann. § 154.073 (Vernon 1987). Note that (c) provides that information at mediation is discoverable or admissible if done so independent of the knowledge gained at mediation.   15.Id. at § 154.073(f).   16.See In re KAR, 171 S.W.3d 705 (Tex. App.–Houston [14th Dist.] 2005, no pet.).   17. Gary McGowan had taken the course in 1988 in Dallas and encouraged many of us to attend this Houston class, and Judge Atlas provided some of her famous chocolate chip cookies.   18.See Collaborative Law, Tex. Fam. Code Ann. § 6.603 (Vernon 1999). This process requires court notification and if no settlement is reached within six months, the parties must file a status report. A second status report is required on the first anniversary of the filing of the notice of collaborative law, and if filed with a motion for continuance, the matter will not be called to trial until not sooner than the second year after the original notice of collaborative law was filed.   19. Divorce and Family Mediation Standards of Practice III B (A.B.A. 1984); Model Standards of Practice for Family & Divorce Mediation I.D.1 (A.F.C.C. 1984).   20.Id. II.B.3 (A.F.C.C. 1984); Appendix, Ethical Standards of Professional Responsibility (S.P.I.D.R. 1986).