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.
With 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.
Types of Alternative Dispute Resolution Procedures
Ah, mediation. It is one of five procedures included in the Texas Alternative Dispute Resolution Procedures Act (or ”ADR”), a statute that has been with us since 1987. The five procedures are:
- Mediation
- Mini-trial
- Moderated settlement conference
- Summary jury trial
- Arbitration
You don’t have to be in an active lawsuit to use these procedures. Sometimes people who are in a dispute will agree to go through an ADR method to avoid a lawsuit and save money.
Mediation
Mediation, the most common ADR method, is when the parties use an impartial third party to attempt to work out a settlement. It usually involves each party in their 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.
Mini-Trial
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.
Moderated Settlement Conference
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.
Summary Jury Trial
A summary jury trial is a forum for early case evaluation and the development of realistic settlement negotiations. Each party and their counsel present the position of the party before a panel of 6 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.
Arbitration
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 decides 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.
Choosing the Type of Mediation
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 was settled.
Hammerle Finley Law Firm is Here to Help You Mediate
Our attorneys are experienced in all five types of mediation and can help you or your family through the mediation process. Contact the experts at Hammerle Finley Law Firm today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
