Alternative Dispute Resolution Section of the State Bar of Texas

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

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

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

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

The Texas Mediator Credentialing Association will hold its annual Symposium in Fort Worth this year—at the Texas A&M School of Law. The date is Saturday, October 28th, and you can register here. The event offers 6.25 hours CLE and includes the 3 hours of mediation ethics needed for renewal of your TMCA credential. Early Bird registration is $130 for TMCA Credential holders and $150 for those who aren’t yet credentialed. Hotel reservations are available at the discounted rate of $149 per night at the Sheraton Fort Worth Downtown Hotel, which is located directly across the street from the Texas A&M University School of Law. To get this reduced rate, you must call the hotel at 817-335-7000 and ask for the special rate for the “Texas Mediator Credentialing Association.” You cannot get this special rate if you book online. Please note parking will be free of charge for all attendees (including those staying at the Sheraton)

In Builders First Source-South Texas, LP v. Ortiz, the Fourteenth Court of Appeals held, in an interlocutory appeal, that the trial court had jurisdiction to set aside an arbitrator’s sanctions orders on the basis of evident partiality. The trial court also had jurisdiction to require arbitration before a new arbitrator, but the parties had to go through the AAA process for the appointment. The trial court erred to stay the proceedings pending completion of arbitration. According to the court’s opinion, Ortiz allegedly suffered workplace injuries. An arbitration provision was contained in his employment agreement with Builders First. The AAA appointed an arbitrator who submitted a sworn disclosure to the effect that none of the parties, lawfirms, or party representatives appeared before her in past arbitrations. The disclosure confirmed that the arbitrator checked for conflicts. About a year later, the parties conducted a telephone hearing with the arbitrator. The arbitrator and