ADR Methods Endorsed by the
Court | Use by the Court
| Common Questions About
This booklet was approved for publication by the Court
in its Civil Justice Expense and Delay Reduction Plan for the Northern
District of Texas. The Plan was developed pursuant to the Civil
Justice Reform Act (CJRA) of 1990. The booklet was produced on the
recommendation of the CJRA Advisory Committee in its May, 1992 Report
to the Court.
ADR Methods Endorsed by the Court
This option is the least formal ADR process and
is nonbinding. It differs from settlement negotiations in that a
mediator helps both sides reach a settlement. The mediator does
not make any decision or give an opinion of the case; rather he/she
carefully listens to the parties' positions and then by questioning,
negotiating and generating options, helps the parties work out their
own solution to their dispute. Any agreement reached can be made
legally binding by putting it in writing and having the agreement
signed by the parties and their attorneys. However, if a case does
not settle in mediation, you are still free to proceed to trial.
Early Neutral Evaluation
An ENE evaluator is a private attorney with specialized expertise
in a particular area of the law who meets with the parties early
in the case process at a neutral location to hear both sides of
the case. Prior to the meeting, the parties may be asked to provide
the evaluator with a written evaluation statement. Counsel and parties
must attend the session. After presentation by each side, the evaluator
identifies the issues in dispute and assesses the strengths and
weaknesses of each position. If there are settlement possibilities,
the evaluator facilitates these discussions. If settlement is not
possible, the evaluator may suggest additional meetings, offer to
conduct further settlement negotiations, or suggest a discovery
plan and stipulations.
In a mini-trial the opposing attorneys present their best arguments
to the top decision makers for the companies and/or governmental
agencies involved in the dispute and to an impartial third party
advisor. The advisor generally possesses expertise in a specific
area. The parties may agree upon a summary or an abbreviated hearing.
After the presentations, the decision makers meet (either with or
without the third party advisor) to try to negotiate a settlement.
Mini-trials are private, confidential and nonbinding. Mini-trials
appear to work best where (1) there are a small number of parties
and where expertise is needed, (2) one party overestimates the strength
of its position, or (3) policy issues must be presented to decision
Summary Jury Trials
In a summary jury trial, the attorneys present a summary of the
evidence to a jury which then renders a verdict that is advisory
only. The jurors are not told that their opinion is nonbinding until
after the verdict is rendered. Attorneys may then question the jurors
about their response to and reasoning concerning the issues and
facts. A summary jury trial is usually completed in a day or less.
In many cases, the jury's reaction to the case will influence the
parties to negotiate a settlement and avoid an actual trial.
Use by the Court
The Court may refer a case to ADR: 1) on the motion
of any party, 2) on the agreement of the parties, or 3) on its own
motion. Most of the time the judge will accept the parties agreement
except in cases where the judge believes another ADR method or impartial
third party is better suited to the case. The judge may also suggest
or require other settlement procedures in addition to ADR. If you
object to having your case referred to ADR or the appointment of
the impartial third party, you may file a written objection with
the Court explaining the reason(s) for your objection.
The ADR method most commonly used
by the Court is mediation. Once a case has been referred to mediation,
the parties may select their own mediator or the Court will choose
one. Costs for the mediation are generally shared equally by the
parties to the lawsuit. For a mini-trial the parties are expected
to work out their own arrangements including the payment of all
costs. Upon request the Court may assist in the selection of the
neutral third party.
If a summary jury trial is selected,
the Court will preside at the trial and will provide a panel from
which jurors will be selected. Once a case has been referred to
early neutral evaluation, the parties may select their own early
neutral evaluator or the Court will choose one. The costs for the
early neutral evaluation are generally shared equally by the parties
to the lawsuit.
Common Questions About ADR
What is the basic difference between the various
forms of ADR?
In mediation, the mediator does not give an
opinion or make a decision regarding the merits of the dispute.
In the other ADR processes, the impartial third party or early
neutral evaluator does give an opinion or make a decision.
Why is mediation more widely-used than the
other forms of ADR?
Because in mediation the mediator works directly
with the parties to determine their needs, desires, fears and
concerns and to help them reach an agreement that, hopefully,
will address these interests.
How does the mediator resolve a dispute?
By giving the parties the opportunity to tell
their stories, to vent their anger, frustration and emotions,
and by helping the parties analyze their case, communicate with
each other, create options and structure a settlement that will
meet their needs. The mediator does this without judging the actions
or motives of the parties.
What are the advantages of mediation?
The advantages are that mediation:
- can be scheduled quickly;
- is inexpensive;
- can usually be completed in one day;
- helps to preserve the relationship between the
- is private and confidential;
- is informal and conducted in a relaxed atmosphere
compared to a trial that is formal and often filled with anxiety
and trauma for the participants; and,
- when successful, ends the dispute.
When should mediation be considered?
- When you want to minimize your costs.
- When you want to settle the dispute promptly.
- When a court trial cannot provide the remedy you
- When you want to end the dispute but not the relationship.
- When your dispute is private and you want it to
stay that way.
can a mediation be scheduled?
Depending upon the mediator's schedule, from
a few hours to a few weeks.
How long are the mediation sessions?
Most disputes are resolved in one day or less.
Occasionally, a mediation will last more than one day. This usually
occurs when the case is complicated, and there are a number of
issues and parties involved.
What are the disadvantages of mediation?
If the dispute does not settle, then the parties
have spent the time and cost of the mediation without any immediate
results. However, even when a dispute does not settle during the
mediation, sufficient progress is often made to enable the dispute
to be resolved much easier and quicker at a later time.
If I go to mediation or to another ADR process,
am I required to settle?
If the case does not settle at mediation or
during another ADR process, can I still go to trial?
Yes. You do not give up your right to a trial
if the case does not settle.
How much does mediation cost?
What do I do if I cannot afford to pay
the mediator's fee, but want to go to mediation?
Most mediators in Texas charge either a daily
fee, which starts at a few hundred dollars per party per day (depending
on the amount in controversy and the number of parties), or an
Talk to the mediator about his or her fee.
Most mediators will either reduce their fee or eliminate the fee
entirely, depending upon your financial situation.
Is everything that takes place in mediation
Yes. The Court Rules for Mediation prohibit
disclosure of anything that is said or that takes place in mediation.
There may be an exception to this rule in the case of the commission
of a crime or breaking a civil law. In the absence of those exception,
when the mediation ends, the only thing that the mediator can
tell Court is that the case settled or that it did not settle.
Can a party bring a tape recorder or stenographer
to mediation to record the proceedings?
No. Mediation proceedings are private.
Where do I find a mediator?
You can ask the Judge or your attorney or
a friend who has been to mediation to recommend a mediator. You
can also phone the Dallas Bar Association at 214-969-7066 (if
you live in Dallas), or your local Bar Association, and request
the names and telephone numbers of mediators.
Can I attend the mediation without an attorney?
Yes, if you are proceeding in the case pro se. However,
even if you have not hired and attorney to represent you in the
case, it is better for you to bring an attorney with you to the
mediation or at least have an attorney available to you by telephone
during the mediation. The mediator is not your attorney, cannot
represent you, and cannot give you legal advice.