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Alternative Resolutions Newsletter
July 1998 Vol. 10, No. 1

TABLE OF CONTENTS

 

CHAIR'S CORNER

John A. Coselli, Jr.
Chair, Alternative Dispute Resolution Section

I am honored to have the opportunity to serve as Chair of the Section for the 1998-1999 term.

The Section's goals must be guided by its purpose stated in Article 1, Section 2 of the Section Bylaws, which is "to promote the use and quality of Alternative Dispute Resolution (ADR) in Texas." In the few years since 1992 when the Section was formed, the Section has met the challenges of its purpose through education in the form of continuing education programs and seminars, the publication of Dispute Resolution Texas Style, the publication of "Ethical Guidelines for Mediators," the publication of "Students for Peace," and our newsletter, "Alternative Resolutions." The Section's leadership has furthered the purpose of the Section by representing the Section in dealing with issues affecting ADR, such as, credentialing, ethics, legislation, and where appropriate, as an amicus in litigation. The goals of the Section in the 1998-1999 term will include the continuation of its purpose through these efforts.

In the coming months the Section's goals will also include dealing effectively with challenges in at least two significant areas:

 

  1. Legislation: The Texas legislature convenes the new legislative session on January 12, 1999. Proposed legislation will begin to surface in the next few months. If the past is any indication of what to expect in the future, we will see many proposed bills which will in some way affect ADR. In the last legislative session there were well over 100 such bills filed.

The Section will evaluate proposed legislation affecting ADR and respond when appropriate. We will have a legislation tracking plan and a legislative response team ready to take action.

 

  1. Regulation of the Profession: The Texas legislature has not yet attempted to regulate mediators, however, on May 7, 1996 the Supreme Court created an Advisory Committee on Court Annexed Mediations to formulate ethical rules for court-annexed mediations and to develop a system to enforce those rules. The Committee was also asked to submit recommendations to the Court regarding the credentialing of mediators. On March 18, 1998 the Committee sent its report, which includes recommendations, to the Supreme Court. The Committee's report was published in the April 1998 issue of Alternative Resolutions.

The Section will evaluate the Advisory Committee's report to the Supreme Court, and determine what, if any, action to take consistent with its purpose. We have a committee evaluating the report.

The Supreme Court has invited public comment on the report, and it is expected that the Court will take action on the report late this year. The Section will also take a leadership role in responding to the Supreme Court's interest in public comment on the report. The Section will sponsor two open forums for public discussion and comment on the Advisory Committee's report at the University of Houston Clear Lake 5th Biennial Dispute Resolution Conference on August 14, 1998 at the University of Houston's Clear Lake Campus. The second will be at the Texas Law Center in Austin on August 22, 998. The comments on the report will be recorded and reported to the Supreme Court. The members of the Supreme Court's Advisory Committee will be invited to attend.

Members of the Section are invited to comment on the Advisory Committee's report through the Section's Quality of Practice Committee. Comments can be addressed to Mr. John Palmer at P.O. Box 1470, Waco, TX 76703-1470, or Ms. Suzanne Mann Duvall at 8235 Douglas Ave. #330 LB 61, Dallas, TX 75225.

Now that the Supreme Court has the Advisory Committee's report, which does not recommend credentialing under the auspices of the Supreme Court, the Section is also considering appropriate action, if any, on the Section's Quality of Practice Task Force Proposal for a Voluntary Program for Mediator Credentialing.

While we are dealing with mediator credentialing, and the Supreme Court is studying what to do with the Advisory Committee's report regarding mediator qualifications, training and ethics, each of us can continue the Section's leadership in public education and professional responsibility by reproducing, distributing and advocating the Section's "Ethical Guidelines for Mediators."

Although the Section will have its hands full continuing its work in progress and dealing with legislative and credentialing issues, I will ask the Council to promote and market the use and quality of ADR in Texas by a more aggressive effort to promote the greatest asset the Section has, its members. By joining the ADR Section our members have expressed a commitment to support the promotion of the use and quality of ADR through the Section's activities and programs.

Our members have the opportunity to have the best ADR continuing education and to have the most current information on ethics, legislation, case law and current issues affecting ADR through the Section's programs, publications and newsletter. Empowered with these opportunities, the Section's members are leaders in the use and quality of ADR, and we should promote our members, their knowledge, and experience as the ADR resource in Texas through the following means in addition to the Section's on-going activities:

 

  1. Networking and Collaboration: Promoting our members and their expertise as the preeminent ADR resource in Texas by expanding our leadership role in ADR and creating new opportunities for our members to network and collaborate with the many individuals, businesses and organizations which could benefit from knowing and associating with our members. The Section's Liaison Committee has made contact with over 20 organizations in an effort to develop stronger relationships for our members through networking. As an ADR resource, Section members can promote the use and quality of ADR by sharing their expertise with others who need ADR information, support and services.

     

  2. Website Enhancement: Use of the strength of the Section's new Website at http://www.texasadr.org to promote the use and quality of ADR world wide by promoting our members and their experience, as well as to increase communication between our members, and between Section members and users and providers of ADR information, services and processes. This effort can begin with a website directory of Section members and information about our members.

     

  3. Supporting and Co-Sponsoring Local Programs: Supporting our members in their planning and organizing ADR programs of interest in their communities through Section assistance and co-sponsorship.

In the coming months we also will do more to educate our members and others about ADR processes other than mediation, such as the many varieties of arbitration, the hybrid forms of conciliation and facilitation, the minitrial and summary jury trial. This effort began with the Section's half-day arbitration program last February and will continue with our co-sponsoring with the Professional Development Program Department of the State Bar, and the Business and Litigation Sections of the Bar, a two day arbitration program. The program will be held live in Houston September 24 & 25, 1998, live in Dallas on October 15 & 16, 1998, by video in Austin on November 5 & 6, 1998, and by video in San Antonio on November 12 & 13, 1998. This program and its materials is designed to train program attendees to serve as arbitrators, and to educate arbitrators, those who are interested in becoming arbitrators and those who use arbitration, about the arbitration process and the rules and procedures applicable to the process.

I invite each member of the Section to actively participate in the work of the Section. I look forward to working with you during my term as Chair. Please feel free to contact me personally at anytime with your thoughts, suggestions or comments.

 

Another Opportunity to Participate

Join a 1998 - 1999 Section Committee

The following Section Committees are forming for 1998-1999. Joining a Section Committee gives you a chance to participate, network and make a difference. The Committees being formed are as follows:

 

ABA Relations Arbitration CLE Committee Criminal Justice

Fall 1999 CLE Program Family Law Government International

Judicial Liaison Legislation Liaison Coordination Marketing

Mediation Membership Mid-year CLE Program Newsletter

Publications Quality of Practice Road Show School & University

Website      




 

EXPRESSIONS OF NEWS

STATE NEWS

ADR Section's 1998 Fall Program

The ADR Section will co-sponsor an arbitration program with the Professional Development Program Department and other Sections of the State Bar of Texas. The Program is planned as a two-day program held live in Houston on September 24 & 25, 1998 and live in Dallas on October 15 & 16, 1998. All or a portion of the program will be videotaped and shown in Austin and San Antonio before the end of the year. See elsewhere on the web site for more information.

NATIONAL NEWS

Specialized Business Courts for Dispute Resolution

The Committee on Business Courts of the Ohio State Bar Association has recently recommended establishing specialized courts for resolution of business disputes in Ohio.

Code of Ethics for Arbitrators in Commercial Disputes to be revised

The ABA's Section of Dispute Resolution Arbitration Committee has convened an Ad Hoc Committee to review and update the Code of Ethics for Arbitrators in Commercial Disputes promulgated in 1977 by a joint committee consisting of special committees of the AAA and the ABA. Proposed revisions to the Code of Ethics will be considered at the ABA annual meeting in Toronto.

 

1998-1999 COUNCIL & SECTION MEETINGS

 

  • Tuesday, Aug. 18, 1998 - Executive Committee Teleconference

  • 8:00 a.m. - 9:00 a.m.

    • Saturday, Aug. 29, 1998 - Council Meeting & Executive Committee Meeting

    Austin - State Bar Building
    9:30-10:30 a.m. Executive Committee Meeting
    10:30 a.m.-4:00 p.m. Council Meeting

    • Tuesday, Oct. 13, 1998 - Executive Committee Teleconference

    8:00 a.m. - 9:00 a.m.

    • Saturday, Oct. 24, 1998 - Council Meeting & Executive Committee Meeting

    Austin - State Bar Building

    9:30-10:30 a.m. Executive Committee Meeting

    10:30 a.m.-4:00 p.m. Council Meeting

    • Tuesday, Feb. 9, 1999 - Executive Committee Teleconference

    8:00 a.m. - 9:00 a.m.

    • Saturday, Feb. 20, 1999 - Council Meeting & Executive Committee Meeting

    Austin - State Bar Building

    9:30-10:30 a.m. Executive Committee Meeting

    10:30 a.m.-4:00 p.m. Council Meeting

    12:30-4:30 p.m. Mid-Year Section Meeting

    • Tuesday, Apr. 6, 1999 - Executive Committee Teleconference

    8:00 a.m. - 9:00 a.m.

    • Saturday, Apr. 17, 1999 - Council Meeting & Executive Committee Meeting

    Austin - State Bar Building

    9:30-10:30 a.m. Executive Committee Meeting

    10:30 a.m.-4:00 p.m. Council Meeting

    • Tuesday, May 25, 1999 - Executive Committee Teleconference

    8:00 a.m. - 9:00 a.m.

    • Friday, Jun. 11, 1999 - Annual Section Meeting

    Fort Worth

    Time To Be Announced

 

ETHICAL PUZZLER

by Tom Reavely*

[This column is the eighth in a series that will address hypothetical ethical problems mediators may face. If you would like to propose an ethical puzzler for future issues, please send it to Tom Reavley, 1301 West 25th Street, Suite 525, Austin, Texas 78705.]

At the beginning of a mediation the plaintiff and her attorney tell you as mediator their concern that the defense attorney will control the negotiation and decision-making for the defendant. After several private caucuses with each side, plaintiff's attorney asks you whether defendant is actively participating in his side's private discussions with you and who is running the show in the other room. Your actual observation has been that both defendant and his attorney are fully participating in the caucus discussion and that both are actively involved in how to respond to each offer. Can you tell the plaintiff and her attorney your observation without defendant's express permission?

Steven W. Fieldcamp (Corpus Christi): It is not unusual in my practice to be asked a question by one side dealing with how the other side is negotiating. When this happens, I ask myself two questions before answering. First, will answering be a breach of confidentiality? Second, is the other side likely to be harmed by answering? If the answer to both these questions is "no," I usually go ahead and answer the question as circumspectly as possible. If the answer to either or both is "yes," I do not answer.

I have no problem answering the question posed in the puzzler "yes." I do not believe answering in the affirmative would be a breach of confidentiality because no substantive information is being disclosed about the caucus and/or other discussions. Secondly, I can see no harm by revealing to the plaintiffs that defendant and his attorney are conducting their portion of the mediation just like everyone expects them to.

If the attorney for the defendant was controlling the negotiation and decision-making, and the defendant was not participating, I would not answer the question. Answering could open a Pandora's box resulting in the plaintiff filing sanctions against defendant if the case did not settle; and the defendant suing the mediator if the plaintiff were awarded sanctions.

Anthony Atwell (Dallas): The mediator may not divulge "who is running the show in the other room" because to do so is proscribed by Section 154.053 (b) and (c) of chapter 154. Section 154.053 (b) states that unless "expressly authorized by the disclosing party" the mediator many not disclose any information given in confidence, and shall at times maintain confidentiality with respect to communications relating to the subject matter of the dispute. And Section 154.053 (c) states that "the conduct and demeanor of the parties and their counsel during the settlement process are confidential."

Karl Bayer (Austin): Yes, no and it depends. Like many questions in mediation practice, clear unequivocal answers are difficult and probably wrong. The following short answers probably find roughly equal support among the very broad mediation community.

Yes. Since no facts or strategies are being revealed, only mediator observations about the process and perceptions of the dynamics, no secrets are being revealed. The problem may not even be an ethical one but rather an inherent necessity once the decision to use a caucus approach is made. After all, if the caucus method is simply a matter of the mediator's preferred style. and the parties know the style is coming in, then observaions such as this are routine and expected. In a face to face mediation the parties themselves could observe and reach their own conclusions about who is driving the dispute. If, on the other hand, the method was deliberately chosen by one of the parties to keep this observation a "secret," then an ethical question has been created and the answer is:

No. As an impartial neutral a mediator should not share information without the permission of both parties. Revealing even seemingly harmless information about one side of a mediation to the other, without permission, when the caucus method has been deliberately chosen as a strategy, risks destruction of the bonds created by the mediator's assurances of complete confidentiality and calls the mediator's impartiality into question.

It depends. The mediator approximately may ask the plaintiff's permission to tell the defendant of the plaintiff's concerns and then share the defendant's response (with the defendant's permission) or to ask the plaintiff's permission to bring this out into the mediation so that it could be directly discussed between the parties. Alternatively, the parties and mediator can negotiate ground rules at the beginning of the mediation to anticipate and allow disclosures of this type during the course of the mediation at the mediator's discretion without the need for the mediator to ask permission.

Comment: From a mediator's perspective, parties and attorneys are very frequently mistaken in their assessment of the other side's motives and sincerity. In order to keep the parties together and working on a solution, we try to provide whatever reassurance we can that a large gap between settlement proposals is not necessarily bad faith and that all the parties are present in a sincere effort to settle (assuming that appears to be the case). This puzzler presents an example of one way a mediator can help in this regard, if it is permissible. Often it would not work to ask defendant's permission to answer plaintiff's question, because defendant's attorney would take the question itself as an insult; seeking permission would cause more harm than good. If the mediator cannot answer plaintiff's question in this example, does it follow that neither could he answer a question from either side as to whether the other side appeared sincere about trying to settle, or appeared to be working in good faith, even of he could truthfully answer those questions affirmatively? Any observation of this sort is based on the mediator's observations in caucus. Does "information given in confidence" under Sec. 154.053 (b) include these types of observations by the mediator in caucus? Does Sec. 154.053 (c), providing confidentiality for the "conduct and demeanor of the parties and their counsel," apply to this type of mediator observation within the mediation process itself (as opposed to revealing such information to the court or others outside the mediation)? Or are those of us who would answer this type of question operating on an assumption of implied consent to make observation which seem helpful to the process and not to harm either party?

* Tom Reavley is a mediator in Austin, Texas.

 

FRANK G. EVANS AWARD RECIPIENT EXPRESSES GRATITUDE

June 8, 1998

To the Alternative Dispute Resolution Section Of the State Bar of Texas:

I am deeply touched by being selected for this year's Frank G. Evans Award. I want to thank the committee members for this honor. Receiving an award that bears the name of Frank Evans is a great honor in itself. Judge Evans launched the ADR movement in Texas, has been its guiding light, and is a role model for us all. I am also honored to be in the company of the prior recipients of this award who fostered and nourished the movement with their hard work and great creativity.

Being part of the ADR movement in Texas in the 1980's and 1990's was exciting and fulfilling. I will always remember the fellowship, the shared ideals, and the sense of purpose and accomplishment. We were crusaders who wanted to bring a kinder and gentler approach to disputes. We believed that disputing parties could be encouraged to be collaborative rather than divisive. We hoped for a saner, quicker, less expensive way to resolve disputes.

Like all crusades, our ideals and dreams have had to be modified in the light of reality. But the fact is that the ADR community has accomplished, and is still accomplishing, significant change in litigation behavior. Most lawyers now consider ADR an integral part of the litigation process, and informing clients of the availability of ADR has become a central duty of the lawyer. Many disputants have been lead to take a step back from intense adversariness to look for collaborative solutions. Dispute resolution mechanisms have become part of the procedures of many companies, institutions, and governmental agencies.

That is not to say that there are not still hurdles to surmount and problems to solve in the administration of ADR. We have had to learn that there is room under the tent for lots of acceptable styles of dispute resolution. Differing approaches that view mediation as transformative, or as essentially problem solving, or as merely evaluative can all be useful and successful depending on the circumstances. Questions as to ethical standards, monitoring of the profession, requirements for training, and the desirability of state certification and regulation have proven to be more difficult that we imagined. But a great deal of careful examination is being given to these issues, and I expect that Texas will find a solution that, like the Texas ADR Act of 1987, will be a model for the nation.

I have been away from Texas at Tulane Law School for the last two years and have been actively involved in drafting and promoting a Louisiana ADR act based on the Texas model. We were not successful in the last legislative session in passing an act that authorizes courts to refer cases to ADR. So right next door to you in Louisiana there is a great deal of work to be done to bring the bench and the bar to the stage that Texas reached over a decade ago. We will be looking to Texas for a model, for an example of how a corps of highly professional mediators can be trained, and for a blueprint for launching an ADR revolution. I am proud to have been part of the Texas movement.

Thanks again.

Sincerely,


Edward F. Sherman, Dean
Tulane Law School

PROPOSAL FOR A VOLUNTARY PROGRAM FOR
MEDIATORS' DESIGNATION
"CREDENTIALED MEDIATOR"

Final Report

As revised and adopted by the ADR Section Council, June 12, 1998.

Prepared by the

QUALITY OF PRACTICE TASK FORCE OF THE ADR SECTION

INTRODUCTION

One of the purposes of the ADR Section of the State Bar of Texas is to enhance the use of professionalism of mediators and to increase the public's understanding of mediation, as well as to promote the use of alternative dispute resolution processes generally.

In furtherance of these goals, the ADR Section's Quality of Practice Task Force has engaged in extensive analysis and review of other states' approaches to monitoring or regulating mediation, has consulted extensively with members of the Section and the ADR Council, has received testimony from a public forum by the Houston Chapter of the Society of Professionals in Dispute Resolution, and has debated at length the most efficacious and unintrusive means to address all interested parties' concerns.

The Task Force hopes there should develop in the years to come a recognized multi-disciplinary leadership group to guide all mediators and the various mediator organizations in devising compatible standards of mediator practice and ethics. Since the ADR Section comprises one of the largest groups of mediators in the country, its members are multi-disciplinary, and its members' mediations cover the full gamut of disputes, the Quality of Practice Task Force and the ADR Section Council believe the Section should take the lead at this time by setting an example through implementation of a credentialing program that attempts to define levels of quality of mediator preparedness.

The ADR Section is strongly committed to cooperating with other ADR organizations to improve the quality of the mediation practice nationally and statewide. The Task Force discerns general - although not unanimous - agreement on the following principles:

 

  1. The ADR Section should be a leader in the maintenance of quality mediation in Texas.

     

  2. Consumers of mediation should be given tools to assist them in their selection of mediators and to obtain information and/or some forum for complaints.

     

  3. The proposal set forth below is intended to serve as a model for improvement of mediation in Texas, but is not intended to be exclusive or unfairly exclusionary.

     

  4. Cooperation with and input from other interested organizations is welcomed.

     

  5. Considerations that are likely to demonstrate competence and/or likely to upgrade the quality of mediator's skills are:

     

    1. Completion of a specified amount of appropriately designed mediation training;

       

    2. Education about the ADR Section's Ethical Guidelines for Mediators and agreement to adhere to these Guidelines or to Ethical Rules that may be promulgated by the Texas Supreme Court;

       

    3. Completion of a specified number of mediations (i.e., demonstrated mediation experience);

       

    4. Commitment to complete specified annual minimum continuing education relating to mediation;

       

    5. Agreement to be governed by and to participate in a feedback and grievance procedure established by the Commission (see below), if as, and when one is created; and

       

    6. Agreement to engage in self-study on mediation and ethical issues, and self-evaluation on mediation techniques.

A PROPOSAL FOR MEDIATOR CREDENTIALING BASIC ELEMENTS

The following is an outline of a proposed mediator credentialing program to be implemented under the initial leadership of the ADR Section of the State Bar of Texas:

 

  1. Credentialing.

    Mediators who meet certain criteria shall be able to distinguish themselves by the use of the designation "Credentialed Mediator." The criteria should be designed to guide the public in identifying well-trained mediators who are aware of their ethical obligations as defined by the Commission to be formed to administer the credentialing program. These criteria should be consistent with the quality considerations listed above.

     

  2. Voluntary Program.

    Any credentialing of mediators should be voluntary; no credentialing should be required for the practice of mediation. No person should be barred from mediating because he or she does not meet these credentialing criteria, and applicants need not be attorneys, members of the State Bar of Texas or of the ADR Section in order to be eligible as credentialed.

     

  3. Administration.

    The administration of the credentialing program should be by a Mediator Credentialing Commission (the "Commission") created under the auspices of the ADR Section. The Commission should not only have the responsibility for the administration of this program, but also to finalize the credentialing program contemplated herein, with appropriate support and input provided by the Council of the ADR Section. The Commission, which shall be self-funded, shall be:

     

    1. multi-disciplinary;

       

    2. representative of the mediation community; and

       

    3. representative of consumers of mediation.

     

  4. Implementation.

    The Task Force anticipates that the program will be implemented through the application process.

     

    1. The Application Process Generally. Each mediator who seeks to use the term "Credentialed Mediator", shall complete an application form prepared by the Commission. Reliability may be assured by requiring the submission be in affidavit form. The application must include entries for each element in the credentialing list of requirements: satisfaction of minimum training requirements, knowledge of and commitment to adhere to ADR Section mediator ethical guidelines or applicable rules, possession of stated mediation experience, and agreements to comply with the requirements for continuing education, feedback procedure and self-study.

    2. Application Fees. A modest application fee will be set by the Commission to cover the on-going administrative costs of the credentialing program. Initial implementation costs will be borne in part by the applicants' fees and, if possible, funds raised from other sources.

    3. Volunteer Mediators. Mediators who are exclusively serving (to be defined) as volunteer mediators will be entitled to a waiver of the application fee, upon request.

THE CREDENTIALING CRITERIA

 

  1. Minimum Mediation Training.

    Formal mediation training is believed to be essential to protection of consumers of mediation. Without it, there is significant risk that people purporting to render "mediation" services will not in fact be rendering services consistent with the recognized ethical principles of mediation, i.e., maintenance of confidences as requested by the parties, maintenance of communications' privilege from the courts, and avoidance of conflicts of interest or potential bias.

    The minimum mediation training standard in Texas is 40 hours of training as contemplated by the Texas ADR Statute, as may be modified from time to time, which may include observations by the trainee or trained mediators mediating actual disputes. This standard is the minimum recommended by the Task Force.

    The 40 hour requirement, as well the topics to be covered, and the training methodologies shall be those set forth by the Texas Trainers' Roundtable in its Report dated February, 1994. Mediators who are trained prior to the promulgation of this credentialing program will be permitted to submit documentation reflecting the nature and extent of their training, and the Commission should be liberal in giving equivalent recognition for established training programs utilizing similar curriculum and training methodologies.

     

  2. Ethical Guidelines for Mediators in Texas.

    All mediators will be required to affirm that they have read, understood and will adhere to the Ethical Guidelines for Mediators promulgated by the ADR Section in February, 1994, and to all ethical rules which may be promulgated by the Texas Supreme Court, and have completed a 3 hour course on ethics sponsored or approved by the ADR Section. This course shall be in addition to the ethics component of the minimum training requirement. The Commission shall assure that such course will be available to applicants no less than two (2) times per year for each mediator within two (2) years of basic training. Funds earned from the net proceeds of such courses will be used for implementation of the credentialing program.

     

  3. Mediation Experience Requirement.

    To qualify as "Credentialed Mediator," mediators must have conducted at least 20 mediations after completing their minimum training. The Task Force believes that prior judicial experience does not meet the requirement of mediation experience since the role of a judge, with power over the outcome of cases in litigation, absent a settlement, is fundamentally different from a mediator, who has no authority to impose the outcome or make substantive decisions for the parties.

    Mediators who seek to become credentialed" under this program shall also be required to conduct a minimum number of mediations each year. The Commission shall determine the requisite minimum number after giving some consideration to the availability (or lack thereof) of mediations in certain geographic areas of the state.

     

  4. Continuing Education.

    In order to maintain the status of Credentialed Mediator, each mediator shall be required to participate in at least ten (10) hours of continuing education each year, two (2) of which must consist of ethics and three (3) of which may consist of self-study. Each course must involve study of mediation, negotiation, or conflict management techniques, or theory or conflict-related topics from communications, psychology and other disciplines. Examples of related topics might include family dynamics and child development (for those mediating family disputes), cross-cultural issues in mediation (for those negotiating across cultures in the U.S. or across national boundaries), group dynamics and decision theory (for those mediating public policy disputes, etc.

     

  5. Evaluation and Grievance Procedures.

    These processes shall be developed by the Commission, and should be designed to accommodate both education of the mediator to enhance his/her skills as well as compliments and criticisms of mediators. Experimentation is underway by several groups, such as the Houston DRC and the Texas Association of Mediators, and the Commission undoubtedly will benefit from these experiences.

     

  6. Retention of Credentialed Status.

    Mediators seeking to obtain the Credentialed Mediator status shall be required to acknowledge in their application form that there are continuing education and experience requirements, adherence to ethical standards requirements, and submission to evaluation and grievance procedure requirements in order to retain such credentialing, and that failure to meet such requirements, or to verify that such requirements have been met, shall cause revocation of such status.

 

Report of the Advisory Committee
on Court Annexed Mediations

[Speech delivered at the ADR Section Annnual Meeting in Corpus Christi on June 12, 1998 by C. Bruce Statton, Co-Chair, Advisory Committee.]

On May 7, 1996, the Supreme Court of Texas signed an Order creating an Advisory Committee on Court-Annexed Mediations. The Order stated that at a minimum, ethical rules governing court-annexed mediations and mediators should be implemented and enforced. Accordingly, the Advisory Committee was to examine these issues and make recommendations to the Court along with suggestions on enforcement of the rules. The proposed ethical rules were to address, among other matters, the avoidance of conflicts of interests, and the timely disclosure of fees and potential conflicts of interest. With respect to the question of credentialing, the Court requested the Committee to investigate and give careful consideration to whether credentialing under the auspices of the Court is needed or desirable. And if so, to make specific recommendations in areas that may include the significant requirements that should be fulfilled by mediators and those who provide training and continuing education to mediators, and how credentialng might be implemented procedurally. On March 18, 1998, after the full Committee had formally met eleven (11) times and exchanged material and ideas on numerous other occasions, the Committee's Report was forwarded to the Supreme Court. Prior to the first meeting on July 9, 1996, some 20 separate papers pertaining to ethics and credentialing were compiled into a notebook and distributed to the Committee.

The Committee developed recommendations in three (3) areas. First, a recommendation concerning minimum qualifications for mediators, second, a recommendation for a Commission on Training and third, Rules of Ethics for Mediations and Mediators.

There was considerable discussion on the meaning of the term "court-annexed". The definition determines the extent to which any recommendations would apply. We discussed the very narrow definition which would encompass only those cases where there is a case-specific mediation order naming the mediator. The broadest definition included not only any pending lawsuits, but also those cases where suit has not been filed, but where the dispute would ultimately come under the jurisdiction of a court for final disposition. The scope of the Rules of Ethics approved by the Committee is "that the Rules of Ethics apply to all mediations governed by Chapter 154 of the Texas Civil Practice & Remedies Code." The Committee did not make a recommendation on credentialing for a variety of reasons. Credentialing was, however, extensively and thoroughly discussed. The Committee did make a recommendation on minimum qualifications for mediators. In addition to the training courses required by Chapter 154, there would be a minimum of 10 hours of approved continuing education annually on the subject of mediation or on mediation related issues. At least 2 hours would be on mediation ethics, and 4 hours on mediation practice skill enhancement. In addition, the mediator must adhere to the Texas Rules of Ethics for Mediations and Mediators as promulgated by the Supreme Court of Texas. The continuing education requirement would be subject to waiver by the court or the parties in individual cases, but adherence to the Rules of Ethics or submission to its enforcement provisions is not subject to waiver.

The next recommendation was a self funding Commission on Training. It would be made up of representatives from the mediation profession, similar in composition to the Texas Mediation Trainer Roundtable. It is to be representative of a cross-section of organizations and individuals having a historical connection with mediation in Texas with at least two-thirds of the members being qualified mediators and/or mediator trainers. The Commission would establish standards and evaluate curricula of mediation training courses and approve such courses. It would periodically publish its standards along with a list of approved courses.

The Committee used the Ethical Guidelines promulgated by the ADR Section in February 1994 as a format for developing the Rules of Ethics. There are, however considerable distinctions, the first of which is that the Rules are mandatory while the Guidelines are not. The Guidelines also address issues which are not set forth in the Rules. As I previously stated, the Rules apply to all mediations governed by Chapter 154. A variety of items are listed as protecting the integrity of the mediation process. These include protecting the confidentiality of the mediation, encouraging the disclosure of accurate information, not knowingly acting in a manner which causes harm to the parties or which erodes their confidence, not using confidential information obtained during the mediation for personal gain or advantage, not subsequently serving as an attorney, an ad litem, arbitrator, or judge or acting in any decision-making capacity concerning confidential information without the disclosure to and consent of all paries, and avoiding the appearance of impropriety. Until the mediation has finally concluded, the mediator should encourage the parties, but not engage in attempts to compel or coerce the parties to continue the mediation process, or to enter into a settlement agreement against their wishes.

If the mediation is beyond the competence of the mediator or if any party objects to the mediator's qualifications, the mediator shall offer to withdraw.

The mediator is to remain impartial, neutral and non-judgmental. He or she is to fully disclose any pecuniary interest that may be relevant, any pertinent relationship that may create the appearance of partiality, and any bias toward the subject matter or participants which could affect partiality. If the mediator or a party determines that the mediator's impartiality has been compromised, then the mediator shall offer to withdraw. The mediator is not to charge a contingent fee or one based upon the outcome of the mediation. The fee for a mediation conducted under a court order is not to exceed the usual and customary fee for the same mediation had it been attended voluntarily. There is to be full disclosure of fees and expenses as soon as practical before the mediation.

Confidentiality is to be exercised before, during and after the mediation. The mediator is not to disclose, without the prior consent of the parties, confidential information, unless required by statute. Any such confidential information is to be carefully stored or disposed of. The mediator is to render anonymous all identifying information when mediation materials are used for research, education or other appropriate purposes. Recordings or transcripts are to be prohibited unless all parties otherwise agree. The mediator is not to give legal or other professional advice to the parties and is to explain to pro se parties that there may be risks in proceeding without counsel.

The Rules include a section on counsel representation of parties in a pending cause indicating that they are serving as officers of the court the same as if appearing before the court and are subject to any rules or orders of the court regarding mediation. Counsel shall cooperate with the court and the mediator in the initiation and conduct of the mediation.

The last item the Committee addressed in the Rules of Ethics is enforcement. Any number of enforcement methods were discussed, including contempt. However, the Committee recommended that the Court in which the action is pending or the local administrative judge of the county, district or region may enforce the Rules in any manner provided by law or by submitting the matter to mediation.

None of the recommendations were unanimous, however, you may be surprised at the strong support of each. The Committee was a truly a multi-disciplinary body. There were twenty-four (24) members having a vote. On the Minimum Qualifications for Mediators, 19 approved, 2 disapproved and 3 abstained. On the Commission on Training, 19 approved, 1 disapproved and 4 abstained. On the Texas Rules of Ethics for Mediations and Mediators, 21 approved and 3 abstained.

I strongly believe that prevention through mediator education and training with regard to ethical behavior should be a major component in any program which is adopted. As in any other endeavor, the Ethical Rules which govern mediator conduct will be meaningless unless they are understood by the mediators, by the advocates and parties who participate in the process, and by the courts which order the mediations.

Any program must not be discriminatory, such as between attorneys and non-attorneys, or between compensated or pro bono mediators. The implementation of the program must be through an accountable body with the administration of the actual process conducted by a multi-disciplinary committee which is representative of the mediation community and consumers of mediation.

The Committee took great care not to fix things which were not broken and to avoid cures which may be more harmful than the "illness". However, some mediators feel that any efforts, however minor, will serve to create problems. Others feel that if mediation is to attain the status of a profession, steps toward self regulation must be taken. The Advisory Committee was very mindful of the tremendous benefits being experienced by the parties, the courts and by the legal profession through proper mediation. Those approving the recommendations felt that the recommendations neither diluted nor jeopardized those benefits.

The Committee recognized that the "as needed" evolution of complex rules of procedure is both natural and necessary in an adversarial process which culminates with an adjudicated outcome. We also understood, however, that the application of these same rules to a mediation process which is informal and based on self determinative outcomes would be destructive as to the flexibility, informality and substantive focus which provide most of the basis for the success of mediation as a user friendly resolution process.

The development of an enforcement or grievance procedure for mediation also represented a special challenge for our Committee. First, we had to structure a process which will work, even though the flow of information is restricted by the confidentiality provisions of the ADR Statutes. Second, as evidenced by the tremendous cost of grievance procedure activities by the State Bar, the process can become very expensive. Yet the program which we recommended must be self funding and effective. The Committee's recommendation incorporates a remedial process rather than initialing focusing on a harsh penalty such as contempt. Contempt was thoroughly discussed and had a number of strong supporters.

The Minimum Qualifications for mediators is not "credentialing" or "certification". It is an effort to focus attention on continuing education and training. Likewise the Commission on Training is a focus on the quality of training. As many of you know, this matter has been studied, debated and discussed for years and it is no less controversial today than it was when we began the dialogue.

What is currently needed is input from the mediation community. I would request that you review the recommendations and give careful thought to their effect. Put your ideas down on paper and transmit them to the Texas Supreme Court in care of Justice Priscilla Owen. Justice Owen was the representative of the Court that worked closely with the Advisory Committee. The Supreme Court desires your input and it will be important in the Court's decision in taking any action relative to the recommendations. You may evaluate the specific language of the recommendations. You may also supplement the recommendations with your own suggestions. For instance, the Supreme Court asked the Committee to make any oversight group self-funding. Although the recommendation of the Commission on Training says self-funding, there are no details. This will definitely be a concern for the Court and your thoughts will be helpful.

On behalf of the Committee, I thank Chief Justice Phillips, Justice Owen and the Texas Supreme Court for the opportunity to conduct these evaluations and the State Bar for providing the facilities for most of our meetings.

With evaluation in mind, your ADR Section under John Coselli is sponsoring a forum at the University of Houston, Clear Lake, Dispute Resolution Conference on Friday, August 14, 1998. There will be two sessions over a three hour period. One session will examine the Minimum Qualifications for Mediators and the Commission on Training. The other will cover the Ethical Rules for Mediations and Mediators. Plans are to have each of the sessions recorded by a court reporter and to forward the comments to the Supreme Court. This is an effort by your Section to solicit your input and we hope you will participate.

 

Give the Supreme Court Your Comments on the Report and Recommendations of the Supreme Court Advisory Committee on Court Annexed Mediations

The Report of the Supreme Court Advisory Committee on Court Annexed Mediations was published in the April 1998 issue of "Alternative Resolution" and published at the Section's Website at http://www.texasadr.org. You can comment on the Report in at least three ways:

 

  1. By including your comments in the Membership Questionnaire found elsewhere on this web site.

     

  2. By attending one or both of the Section's two open forum programs for public discussion and comment on the Report. The first program is on August 14, 1998 at the University of Houston's 5th Biennial Dispute resolution Conference at the University of Houston's Clear Lake Campus. The second program is on August 22, 1998 at the Texas Law Center in Austin. See the announcement of the Open Forum programs on page 27 in this newsletter.

 

SECTION MEMBERS INVITED TO CREATE THEIR OWN
LOCAL ADR SECTION CO-SPONSORED CLE PROGRAM

Section members are invited to propose, plan and lead ADR section supported and/or co-sponsored CLE Programs in their local communities. State-wide CLE programs are not convenient to and do not meet the needs of all Section members. Locally planned and presented programs can be tailored to the needs of specific communities, presented at times and locations convenient to those communities, and provide Section members an opportunity to network and exercise their leadership skills. Such programs must be self funding if funds are needed. Many programs can be planned and presented at little or no expense. The Section will work with Section members to provide planning support, assistance in obtaining State Bar MCLE credit, advertising in the newsletter, co-sponsorship with the Section and other Section support.

To plan your own local CLE program contact Kay Elkins Elliott at phone no. (214) 522-7233, fax no. (214) 526-2962, or by mail to 2401 Turtle Creek Blvd., Dallas, Texas 75219.

 

SECTION MEMBERS INVITED TO PARTICIPATE IN
TWO OPEN FORUMS ON THE SUPREME COURT
ADVISORY COMMITTEE'S REPORT

The Supreme Court has received and invited comment on the Advisory Committee's report and recommendations on court-annexed mediations. It is expected that the court will take action on the report in the next few months. The ADR Section will sponsor two open forums for public discussion and comment on the Advisory Committee's report and recommendations. The Supreme Court Advisory Committee has been invited to participate in both programs. The public comments to the Advisory Committee's report will be recorded and reported to the Supreme Court by the Section. The two open forums are as follows:

August 14th Open Forum

Where: University of Houston's 5th Biennial Dispute Resolution Conference at the University of Houston's Clear Lake Campus at 2700 Bay Area Blvd., Houston, Texas 77058.

When: August 14, 1998; 12:45 p.m. to 4:30 p.m.

Program:

(1) 12:45 p.m. to 2:30 p.m.: Discussion and comment on the recommended minimum qualifications for mediators and a commission on training.

(2) 2:45 p.m. to 4:30 p.m.: Discussion and comment on the recommended rules of ethics for mediations and mediators.

Registration: The University of Houston Clear Lake Conference registration fee is $95.00. The registration fee entitles you to a continental breakfast, lunch and attendance at the entire Conference. Application is being made for MCLE credit (including ethics). The registration deadline is August 10. To register for the Conference, and for more information on the Conference, please contact the Conference program coordinator, Ms. Resa Ott at phone number 1-800-892-9451, fax number (281) 283-3089, or E-mail PACE@CL4.CL.UH.EDU.

August 22nd Open Forum

Where: Texas Law Center; 1414 Colorado, Austin, Texas

When: August 22, 1998; 9:30 a.m. to 12:30 p.m.

Program:

(1) 9:30 a.m. to 10:45 a.m.: Discussion and comment on the recommended minimum qualifications for mediators and a commission on training.

(2) 11:00 a.m. to 12:30 p.m.: Discussion and comment on the recommended rules of ethics for mediations and mediators.

Registration: There is no registration fee for this program. Application is being made for MCLE credit (including ethics). If you have any questions about the program contact John A. Coselli, Jr. at phone no. (713) 659-6494, fax no. (713) 659-3267 or E-Mail lawadr@flash.net.

 

ADR SECTION 1998 FALL PROGRAM - ARBITRATION

If You Arbitrate Or Want To Be An Arbitrator Don't Miss the Fall 1998 Arbitration Program. There will be four opportunities to participate. The first two will be delivered live and the other two will be taped presentations.

WHAT: The Fall 1998 Arbitration Program

Live Presentations:

WHERE: Houston, Texas (Live) at Doubletree Hotel-Allen Center

WHEN: September 24 & 25, 1998

and again

WHERE: Dallas, Texas (Live) at Cityplace Conference Center

WHEN: October 15 & 16, 1998

Taped Presentations:

WHERE: Austin, Texas (Video) at Joe C. Thompson Conference Center

WHEN: November 5 & 6, 1998

and again

WHERE: San Antonio, Texas (Video) at San Antonio Learning Center

WHEN: November 12 & 13, 1998

MARK YOUR CALENDARS NOW

The ADR Section will co-sponsor an arbitration program with the Professional Development Program Department of the State Bar of Texas, and the Litigation and Business Law Sections of the State Bar. The Program will be a two-day program. The program and its materials are designed to meet two objectives:

     

    • To educate arbitrators, those who are interested in becoming arbitrators and those who use arbitration about the arbitration process and the rules and procedures applicable to the process; and

       

    • Train program attendees to serve as arbitrators. The training includes a demonstration of an arbitration hearing which follows the work of the arbitrator from the preparation for the arbitrator through the award.

    Registration materials for the program may be obtained by calling Julene Franki at the State Bar of Texas at 1-800-204-2222 extension 1574.

     

    ADR SECTION ANNUAL MEETING
    Corpus Christi - June 12, 1998
    by
    Marty Leewright

    The ADR Section held its latest meeting at the State Bar of Texas Annual Conference in Corpus Christi on June 12, 1998. Approximately one hundred members of the ADR Section attended. Chair, John Palmer, opened the meeting and during the meeting passed the gavel to John Coselli, new Chair of the Section.

    John Palmer reviewed the Section's goals and accomplishments during the last year. These included work by Supreme Court Advisory Committee, the September CLE chaired by Ross Stoddard, the Road Show and the Mid-Year CLE Arbitration Seminar chaired by Paul Keeper, Ethical Puzzlers and Caselaw Updates by John Coselli, ADR Pamphlet revision chaired by Marty Leewright, excellent work on the Section's website by Carl Forrester, great work on the Newsletter by Editor Robyn Pietsch, liaisons with other Sections, marketing breakout sessions at CLE seminars, an amicus brief on confidentiality by David Cohen, ADR work in the schools by Liz Wally and victim-offender ADR by Jim Gibson. Palmer thanked all of these people and said the accomplishments during his term as Chair would not have been possible without this team effort.

    Accordingly, several people were recognized with awards and certificates: For participation in the Roadshow Committee: Verle Ann Proctor, Judge Josefina Rendon, Jerry Stegall, Barbara Hannon, John Wescoat Sandlin, Gaye Copas, Nancy Lynch, and Harvey Klee. John Estes, Gary Condra and Marty Leewright for service on the Council, Michael Whellan for service as Secretary, Carl Forrester as the "Webpage Visionary," and Helmut Wolff for contributions to the Section in Arbitration. Ross Stoddard received special recognition for the September CLE with "unparalleled" speakers, and outstanding Council service from 1995-98. Also, Paul Keeper for "outstanding service" as Treasurer, books, accounting, research, Road Show and the mid-year Arbitration Seminar.

    The Evans Award was announced and the Award presented to Edward F. Sherman, Dean of the Tulane Law School, formally of the University of Texas School of Law. A leader in ADR, prolific author and tireless leader in ADR. Michael Whellan read a heart-felt thank you letter from Dean Sherman citing accomplishments of Judge Evans and prior recipients of the Award and stating how he shared their ideals and was greatly honored by the award.

    Several nominations for Council and officer positions were received from the Nominations Committee (reported elsewhere in the Newsletter) and were accepted and voted on unanimously at the meeting.

    The new Chair's report was delivered by John Coselli. He first presented an award to John Palmer for service as Chair of the ADR Section and a standing ovation followed. Coselli stated that the Section would continue the things that it has done so well. He presented two new goals:

     

    • To track and respond to proposed legislation which would impact ADR in the new legislative session.

       

    • To deal with issues effecting the regulation of mediators. This would include evaluating and responding to the Supreme Court Advisory Committees Report on Court Annexed Mediations as well as addressing credentialing issues.

    Coselli stated that the greatest asset we have is our members. He stated that he will ask the Council to do more to promote and market the skills that members have acquired. Specifically:

     

    1. Increase efforts at networking and collaborating with various sections and organizations, and to develop stronger relationships.

       

    2. Enhancement of the Section's web site, increase communication, and create a directory of members.

       

    3. Supporting our members in their planning and organizing of local ADR programs in their communities.

       

    4. Educating our members and others about ADR processes other than mediation.

    Coselli also reviewed and explained the Membership Questionnaire . He encouraged members to comment on Section performance and to participate in Section activities.

     

    Luncheon speakers were Kim Kovach and Robert Schuwerk, speaking on "Texas Supreme Court Jurisdiction over Mediators" and the "Applicability of Texas Disciplinary Rules of Professional Conduct to Mediators and Arbitrators."

    John Palmer discussed the Report of the Advisory Committee on Court Annexed Mediations and the Ad Hoc Committee's recommendations regarding voluntary mediator credentialing. Bruce Stratton, Co-Chair of the Advisory Committee, reviewed the Advisory Committee Report in detail.

    John Palmer discussed the Report of the Advisory Committee on Court Annexed Mediations and the Ad Hoc Committee's recommendations regarding voluntary mediator credentialing. He stated that the recommendation report would be voted on at the ADR Council meeting later in the day and invited members and guests to attend. Later at the Council meeting, Palmer delivered a report of the Quality of Practice Ad Hoc Committee. He stated that several members of the committee submitted comments and voted unanimously on the final Report. Those Committee members that voted unanimously approved the final report on the revised "Proposal for a Voluntary Program for Mediators" Designation "Credentialed by the Alternative Dispute Resolution Section of the State Bar of Texas." Palmer summarized the focus and details of the report, which was provided to all in attendance. He stressed that the document went through considerable discussion, modification and thought before reaching final form and commended numerous members of the committee for their hard work.

    Palmer pointed out that the Credentialing Commission would be multi-disciplinary in nature and not governed by the ADR Section. Bruce Stratton stated that the language in the earlier report which concerned many people had been removed or changed to reflect a truly multi-disciplinary governing body to institute a credentialing process. Gary Condra moved that the Quality of Practice Committee be authorized to move forward with efforts to open negotiations with other groups involved in mediation with the objective of establishing a credentialing program for mediators using the proposal report as its initial proposal. The motion was seconded by John Palmer and the motion passed.

    Views expressed in Alternative Resolutions are those of the authors and do not necessarily reflect the views of the editors, the State Bar of Texas or the ADR Section. © State Bar of Texas Alternative Dispute Resolution Section, 1997-1998. The individual authors reserve the rights with respect to their works included in this Newsletter. The State Bar of Texas ADR Section reserves all rights to this Newsletter.