QUESTIONS PRESENTED May a Texas lawyer, acting as a mediator, prepare and provide the parties to the mediation a proposed written agreement that memorializes the terms of the parties’ agreement reached during the mediation? If so, may the lawyer-mediator propose terms for inclusion in the written agreement in addition to the specific terms agreed to by the parties during the mediation? STATEMENT OF FACTS A Texas lawyer acts as mediator in a dispute between two parties who reach an oral agreement during the mediation. The lawyer-mediator drafts a written settlement agreement, incorporating the agreed terms, and presents it to the parties for review and signing. The lawyer-mediator suggests some provisions in the draft agreement that do not conflict with the parties’ oral agreement but were not expressly discussed during the mediation session. DISCUSSION Under the Texas Disciplinary Rules of Professional Conduct, serving as a mediator constitutes acting as an “adjudicatory
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Where Do We Go Next?
by John DeGroote, Immediate Past Chair Why are we all here, anyway? That’s a question that’s good to ask ourselves every so often, and I believe it’s time for ADR professionals to assess where we are, and where we’re going. At this point we know that settlement isn’t the product of a last-minute chat on the courthouse steps or the smoke-filled conference room I learned about as a young lawyer. Modern-day dispute resolution, and the mediation or arbitration it usually takes to get there, happens in a much more structured and intentional way. Even the conference rooms have changed. Not only are they not filled with smoke, but they often feature natural light, good (or at least better) coffee, and a solid wi-fi connection. Hardly the image from thirty years ago! Since the 90s, ADR has grown from a relatively new idea into an expected part of most legal disputes.
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Ethical Puzzler
by Suzanne M. Duvall Question: May a case worker for Family Court Services participate in and/or assist in the mediation of a case to which the case worker has been assigned? Would your answer be different if the case did not settle at mediation or before trial? John Zerpopoulus, Dallas I think that y’all are wise to consider implications of the arrangement of teaming the custody evaluator with the mediator in mediation. In my opinion, the arrangement has potential problems that could seriously compromise the evaluator’s testimony when the mediation does not settle. As you know, a custody evaluator is appointed by the court to conduct an evaluation to provide information to the court, with a report and possible testimony, regarding the evaluation findings. That task should be jealously protected by the evaluator. The appointing order never states that an evaluator can assist in mediation. Mediators mediate. Court-appointed evaluators do
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It’s a Matter of Trust
Billy Joel sings It’s a Matter of Trust and doesn’t that apply to almost everything we do as mediators? Some attend advanced mediator trainings to find the latest magic tricks to break impasse. But without trust none of these tricks work; unless, of course, you attended the Harry Potter School of Mediation. Yet trainings, beginner or advanced, spend little time exploring trust and its import in the mediation process. Let’s break down trust into three parts: Trust in the process. Trust in the mediator. Trust between the parties. Trust in the Process How do we establish trust in the mediation process? Do parties enter the mediation trusting the process? If not, how do we instill trust? Let’s exclude mediation “frequent fliers” such as lawyers, insurance representatives, and the like who regularly attend mediations. Why should a first-time user of mediation trust the process? What do they actually understand about the
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Colloquy with John DeGroote
From growing up on a horse farm near Pascagoula, Mississippi, to owning his own mediation and arbitration practice in the trendy area of Dallas known as Deep Ellum, John is a man who lets no grass grow beneath his feet. He just stepped down as the Chair of the ADR Section for the State Bar of Texas; during his term, John worked to advance statewide interest in mediation and arbitration. Owning his own shop and being a mediator and arbitrator full time has been an adventure for John to say the least—but he’s been there before. From his initial plan of being a communications professor, pursuing a master’s degree at University of North Carolina at Chapel Hill, to finding a passion for law and starting his law practice with Jackson Walker in Dallas, John is proof positive that a new adventure can be waiting just around the corner. I know
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Professionalism Committee Hard at Work To Expand Mentoring Opportunities and Speakers Database
By Kenda Culpepper The mission of the State Bar of Texas Professionalism Committee is to increase professionalism and improve the development of new lawyers. The committee was revitalized in 2012 by State Bar President Buck Files, and it has striven to accomplish its mission by tackling four key subjects: mentoring, promoting professionalism through CLE and different events, providing access to good ethics speakers, and promoting the Texas Lawyer’s Creed. All of the resources and databases described in this article can be found here. Just click on the relevant program or subject matter on the site for more information. Expanding Mentoring Opportunities One of the key missions of the SBOT Professionalism Committee is to increase the number of mentoring resources across the state. In years past, lawyers came out of law school with a job that provided a wealth of mentoring opportunities. Whether they were practicing with a large or small
Continue readingETHICAL PUZZLER
by Suzanne Mann Duvall Mediation is in session. The mediator in is a caucus room with one side and has just presented a mediator’s proposal. Through the thin wall, the other side hears the mediator exclaim, “You hit me!” Both sides emerge into the adjoining hallway where it is revealed that the plaintiff hit the mediator and the police have been called. The mediator announces, “This mediation is over,” and also states that he will file a criminal complaint against the plaintiff, in addition to possible a civil lawsuit. What if the walls had been thicker and the other side had not heard the mediator say, “You hit me”? Should the mediator have disclosed that the mediation was being terminated because he had been hit by the plaintiff? Should the mediator file criminal charges and/or a civil damage lawsuit against the plaintiff? What confidentiality rules are being violated, if any? If
Continue readingThe Neurobiology of Conflict and Persuasion
by Michael Ellison At its most simple, conflict and persuasion are largely handled by two different, and unequal, partners in the human brain. Persuasion is most often the result of a logical presentation of information that appeals to the cerebral cortex, or thinking portion of the brain. Through their long training in law school and years of experience in court, lawyers are taught that emotional appeals have little weight on the fine grind of the wheels of justice—logic and precedence prevail. Conflict, however, is not cerebral, it’s emotional. Conflict is regulated by the ancient mammalian brain, or limbic system, which is largely concerned with threat assessment and survival strategies. Not surprisingly, survival trumps intellect. In fact, when the limbic system gets involved, emotions run high and it shuts off the input from the wiser cerebral cortex. The limbic system rules our behaviors from its fang-and-claw mandate. This is the biological
Continue readingLessons From Hollywood:
Settlement in the Movies By Kay Elkins-Elliott Many movies feature successful resolution of conflict. What can we learn from these big-screen examples? Because the mediator is the team leader in settlement, we can use the movies to learn or improve techniques for: facilitating communication and negotiation, overcoming barriers to settlement, and specific behaviors that influence parties to settle. As the mediator, you must bring to the table three vital skills: Negotiation Sophistication Closure Skills Communication Creativity Both pop culture, and the research and writing of settlement experts, can aid us in communicating clearly. They can also enhance negotiation sophistication and closure skills. The movies referenced here are some of my favorites, but you may have your own that would work better for you. Whatever they are, keep those movies in your mediation office, cued up to the part that just might turn on a light bulb in someone’s mind. Invite
Continue readingState Bar ADR Courses
The ADR Section of the State Bar of Texas is pleased to invite you to these courses. Click on the links for more information. Handling Your First (or Next) Arbitration: Effective Use of Arbitration (live) Austin – Nov 3, 2017 MCLE Credit: 6 hrs (includes 3 hrs ethics) MCLE No: 928004951 More Info Register for Course Webcast So You Want to Be a Mediator: Establishing a Mediation Practice (webcast) Nov 30, 2017 from 10:00 am to 12:00 pm CT MCLE Credit: 2 hrs (includes 0.50 hrs ethics) Register for Webcast So You Want to Be an Arbitrator: Establishing an Arbitration Practice (webcast) Nov 30, 2017 from 12:30 pm to 2:30 pm CT MCLE Credit: 2 hrs (includes 0.50 hrs ethics) Register for Webcast Alternative Dispute Resolution 2018 (live) Austin – Jan 26, 2018 MCLE Credit: 6.50 hrs (includes 3 hrs ethics) MCLE No: 928011617 Register for Course
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