THE MEDIATION PROCESS
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 mediator acts as a neutral intermediary for the parties. The mediator cannot and will not act as an advocate for any of the parties.
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 mediator acts as a neutral intermediary for the parties. The mediator cannot and will not act as an advocate for any of the parties.
The mediation process is a private meeting that consists of several stages. First, all parties and their counsel meet with the mediator in general session. During this session, the mediator explains the process and sets forth the ground rules. Afterward, 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. The mediator asks clarifying questions and determines areas of agreement.
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 counsel to express matters that he or she would not be willing 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. At some point during the caucus stage, the mediator will begin serving as a shuttle diplomat between parties, conveying settlement offers to each party.
When it appears that a consensus has been reached, in the event the mediator assists in preparing a written settlement agreement pursuant to a mediation, each participant should have the settlement agreement independently reviewed by the participants’ counsel before executing the agreement. The entire proceeding is privileged and confidential. Indeed, the law prohibits the mediator or any party from telling the court anything said during the mediation. At most, the mediator may report that the case did or did not settle. See Tex. Civ. Prac. & Rem. Code § 154; Tex. R. Evid. 604. *
