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Understanding Alternative Dispute Resolution: Mediation

Here at Taylor Dunham and Rodriguez LLP we pride ourselves on our litigation skills in the courtroom, but we also seek other avenues to solve a client's problem. At Taylor Dunham and Rodriguez LLP we are also accomplished in the realm of Alternative Dispute Resolution.

Alternative Dispute Resolution has two main options: arbitration or mediation. Arbitration is similar to a trial, but handled by a private arbitrator(s) instead of a jury or judge. The arbitrator(s) hands down a binding decision that is often enforced by courts. For more on arbitration see Jennifer Tatum Lee's, a partner at Taylor Dunham and Rodriguez LLP, blog post on arbitration here: /blog/2012/04/arbitration.shtml.

On the other hand, mediation is nothing like a trial. Rather, mediation focuses on bringing the opposing parties together to work out the issues between them while being guided by a mediator, a neutral third-party, in hopes of reaching an agreement. Further, while arbitration is often contractually agreed to by the parties, mediation is typically voluntarily agreed to by the parties. However, voluntarily mediation can be debated as Travis County requires "all cases set for trial on the merits...[to be] automatically referred to pre-trial mediation."

If mediation is chosen by the parties, it does provide some distinct advantages. First, it is somewhat more cost-effective and faster than going through the whole litigation process while providing a binding solution if an agreement is made. Second, mediation allows the parties to engage with each other on a somewhat less formal setting than trial. Third, proponents of mediation argue that mediation is better at allowing the parties to maintain a working relationship by avoiding the emotional costs litigation typically brings. Fourth, mediation, unlike a trial, is private and confidential. Lastly, even if mediation fails, you essentially get "free" discovery by seeing what the other party's theory of the case.

The actual process of mediation is quite simple; the parties will get together to select a mediator and schedule an agreeable date for the mediation. On mediation day, the mediator will typically begin the process with introductory remarks that introduce the parties, the process, etc. Then, the mediator will allow a statement of the problem(s) by both parties which serves as the equivalent of the opening statement at trial. Here, each party will lay out how it views the case and the law that applies. After this, the mediator will essentially make an agenda of disputes that need to be resolved and begin a brainstorming process on resolutions. During this process, the mediator may choose to hold separate caucuses. Caucuses allow the mediator to meet with each individual party and to discuss the strengths and weaknesses of their cases. These caucuses are where offers and counteroffers are typically made. If at the end of the day, a settlement is reached, the mediator will help draft settlement agreements for the parties to sign. If mediation fails, the parties will reach an impasse and continue preparing for trial.

If you are in the middle of a legal dispute, but are interested in a fast and cost-effective solution, do not hesitate to contact Taylor Dunham and Rodriguez LLP for legal assistance in pursuing alternative dispute resolution options.

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