Mediation is a confidential process intended to assist parties in reaching a resolution to their dispute. In Texas, mediators are specially trained in dispute resolution to act as neutrals. They meet with all parties to a dispute in confidential session in an attempt to reach a written settlement agreement among the parties to resolve their dispute or in connection with disputes that are in litigation, to settle their lawsuit. Mediators are not judges, and they have no authority over the parties to require them to enter into a settlement; instead, they try to assist the parties to see weaknesses in their position and the advantages of entering into a settlement. In most cases, the most compelling reason to settle a dispute is the elimination of the risk of a bad result and/or to prevent the parties from incurring additional attorneys’ fees and expenses that will be required to pursue or defend a lawsuit. By statute the mediation process is confidential. This is intended to facilitate the free communication of ideas and settlement demands and offers amongst the parties, without fear that the information conveyed or the demands and offers made will come back to “haunt” the litigant in court. The mediator cannot be compelled to disclose anything that transpired in the lawsuit, nor can the mediator be subpoenaed to testify in court regarding what transpired during a mediation. The proceeding is not binding on the parties, and no one can require the parties to settle at mediation. Unlike an arbitration (another form of dispute resolution), their is no formal presentation of evidence, and no testimony of witnesses. Instead, the parties to a dispute convene in one location, most often accompanied by their legal counsel. The mediator will generally seat the parties in separate rooms, with the mediator going back and forth between the rooms and speaking with each of the parties and their counsel, learning about each parties’ position and “side” of the dispute, and then working with the parties to toward a reasonable resolution of their dispute, either by money, or in some cases, such as divorces, with specific written proposals regarding property division and custody.
