What is mediation?

A mediator is an impartial person who works to, facilitates communication between the parties to promote reconciliation, settlement, or an understanding between them. If the parties reach a mutually acceptable understanding, the mediator guides them in developing a written and binding contract often referred to as a mediated settlement agreement (or MSA). The mediator’s role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.

Please note, while many of the mediators that work with the Mediation Centre of East Texas are attorneys, neither the Mediation Centre of East Texas nor the mediator of any case will be acting as attorney, lawyer, or giving legal advice to any of the parties of that case.

Mediation is an inherently voluntary process. It takes both parties participating in good faith to be successful.  When the parties do work together mediation is highly effective as resolving disputes.  According to a 2018 study by Centre for Effective Dispute Resolution roughly 75-80% of cases settle on the day of the mediation itself and another 10-15% settle shortly after. 

You are in control: The mediator doesn’t make the decisions, the parties do. Allowing the parties to maintain control rather than “take your chances” in the courtroom. Disputes are often problems to be solved that require complex tradeoffs and judgment calls and who better to make those calls than the person who knows your interest and your case best. You.

Reduce hostility and preserve relationships: One of the most overlooked benefits of mediation is that it can help preserve relationships, business and personal, that would likely be destroyed through years of litigation. Often after a dispute is over parties will still have to interact with each other. Going to court is adverse and hostile by necessity and can cause sharp division between people. Mediation looks to the future in hopes of bringing an end to the underlying problem not the relationship.

Quicker: Mediation typically only takes days, whereas lawsuits routinely take months or years. When parties want to get on with their lives, mediation allows a more reasonable timetable for resolving a dispute.

Higher satisfaction: Participants in mediation report higher satisfaction rates than people who go to court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. Mediations end in agreement 70 to 80% of the time and have high rates of compliance.

Informality: Mediation can be a less intimidating process than going to court. Since it is a far less ridged and confrontational process, it allows the people involved to find the best path to agreement.

Lower cost: Mediation is vastly less expensive than a typical lawsuit. The litigation process is expensive, and costs can exceed benefits. It may be more important to apply that money to solving the problem, to repairing damages, or to paying someone back. Mediation services are available at low cost for some types of cases. If you can’t agree, other legal options are still possible. Even a partial settlement can lessen later litigation fees.

Confidentiality/Privacy: Unlike court cases, which are public, mediations are confidential, which means there are no records or transcripts.

The list is long and includes but is not limited to contract disagreements, insurance claims, real estate disputes, construction conflicts, and cases between landlord and tenant as well as Small Claims cases (civil cases involving smaller amounts of money), and of course divorce and child custody cases.

Prior to the Mediation:

• Scheduling and initial contact: Once mediation is requested by the parties or ordered by a court, the parties will work with the Mediation Coordinator and the mediator to schedule. Once scheduled the parties will receive an Agreement to Mediate, a copy of Rules for Mediation and Initial Case Information Form. At least three (3) days prior to the mediation both parts must 1) Return a signed copy of the Agreement to Mediate; 2) Return a completed Initial Case Information Form; and 3) Pay the mediation the mediation fee.

On the Day of Mediation:

• Parties will arrive.

• The Mediator will meet with each party either individually (in Caucus) or together (Joint Session) and work towards identifying and prioritizing the issues in the case.

• Once the issues are the parties with the aid of the mediator explore possible solutions.

• If a solution is found the mediator with the parties will reduce their agreement to writing into what is called a Mediated Settlement Agreement (or “MSA”).

• If the parties cannot reach a resolution the mediator will declare an impasse and the parties can either 1) resume the litigation process; or 2) re-evaluate their position and attempt to mediate again at a later time.

After Mediation:

• If the parties have executed a MSA the mediator and the parties will inform the court. If necessary the parties will execute any additional documents required to facilitate and fulfill their obligation under the MSA (i.e. agreed orders or deeds) .

• Mediation Centre of East Texas and Meditator will destroy all notes, Initial Case Information Form and documents associated with the mediation other than the Agreement to Mediate, proof of payment, written communications pertaining to notices from the Centre, the MSA (if reached), and any document(s) filed by the mediator into a case notifying the Court, in order maintain confidentiality.

Please note, this is a general outline of how the mediation process can work intended for informational purposes. The exact process may vary based on a number of factors.

For a mediation to be successful all parties to the case should attend the mediation session(s). If one of the parties is a corporation, parternership or limited liability company (LLC) someone who has decision making authority of the business should be present to represent the business. The parties, their attorneys, o representative should be familiar with the facts of the case and have the authority to settle the case on behalf of the actual party.

Although you don’t have to bring an attorney with you to the mediation, either party may choose to do so. The mediator will decide what role the attorney will play during the mediation.