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From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.
By W. Reed Leverton
In August, 2009 attendees of the annual Texas Judicial Conference were surveyed regarding their attitudes as to alternative dispute resolution processes, with a particular emphasis on mediation and arbitration. The survey was prepared by members of the Alternative Dispute Resolution Section Council and undertaken under the Council’s direction. 1,547 state judges (trial and appellate) were invited to this year’s conference, 566 of whom attended. Each of the judges who came to the conference was asked to complete the survey, which was comprised of 12 questions, several with multiple sub-parts (see example below). The questions ranged from asking for basic information such as length of service on the bench and subject matter jurisdiction to multi-part Likert Scale questions eliciting the judges’ opinions as to the effectiveness and other qualitative aspects of ADR processes. The judges were also asked as to their opinions regarding subjects such as appropriate training, experience and roles for mediators and arbitrators. The respondents included trial court and appellate judges, with an average of 12 years on the bench. 89 of the 566 judges returned completed surveys, which represents 15.7% of conference attendees and 5.8% of all state judges eligible to attend the conference.
What follows is a brief summary of the findings. While further analysis will be necessary to develop more specific conclusions, it can be generally said that Texas judges are well aware of the various non-judicial processes available to litigants (especially mediation and arbitration), and further, that there is general acceptance within the Texas judiciary of the use of ADR modalities.
The respondents reported that mediation is often used in their respective counties and were of the opinion that it’s an effective way to manage their dockets. The judges were somewhat in agreement with the proposition that all civil and family law cases should be referred to mediation, and there was strong disagreement with the statement that mediation usurps the role of the judiciary. A few of the judges reported some agreement with the idea that mediation can threaten the rule of law in that participants can reach outcomes not otherwise available in court. Generally, however, the majority of the respondents did not feel that mediation threatens rule of law.
With respect to court-referred mediations, 25% were done so by virtue of a local rule and 42% were by court rule. A significant number of judges also considered referrals on a case-by-case basis (50%) or on motion of the parties (53%). Only 7% of the judges reported that they do not refer their cases to mediation. 3% of the judges reported that they never grant an objection to a mediation referral order, 43% do so on a showing of extraordinarily good cause, 50% on a showing of good cause and 3% on motion of either party without a showing of good cause.
The respondents generally disagreed with the following statement: mediation is a success only if an agreement is reached during the mediation itself. There was moderate agreement with the idea that mediators should provide participants with the mediator’s opinions of possible trial outcomes, while only slight agreement as to mediators opining as to probable outcomes. There was also moderate agreement with the proposition that participants derived more satisfaction with mediated settlements (as opposed to going to court) since they had more control over the outcome of their dispute.
90% of the judges thought that mediators should be required to have the same amount of training currently required to receive court-referred cases, while 5% responded that more training should be required. 3% thought that there should be no training requirements as a prerequisite to receiving court-referred mediations. Additionally, and with respect to court referred mediations only, 12.5% of the judges thought that membership in the Texas Mediator Credentialing Association should be required and 16% reported that some specialized training should be required based upon the facts of the case. Finally, and significantly, 32% of the judges felt that mediators handling court annexed cases should also be licensed Texas attorneys.
The respondents reported that the use of arbitration in their counties ranked between used and, sometimes and rarely used, and while some judges felt that arbitration was an effective docket management tool, it did not score nearly as well in that category as did mediation or settlement conferences.
There was slight agreement that arbitrators are more predictable than juries as well as with the proposition that, generally, arbitrations cost less than jury trials. There was also some agreement with the statements that arbitration threatens the rule of law in that sometimes arbitrators can make awards not available in the courts and that arbitration usurps the role of the judiciary.
All of the respondents were of the opinion that arbitrators should have some formal training and/or other qualifications. 55% opined that arbitrators should be licensed Texas attorneys, 60%thought that arbitrators should have formal training and 47% responded that they should have specialized training or background in the subject matter of the dispute to be arbitrated.
The following are examples of the survey’s Likert Scale questions along with average response values:
Please evaluate the following statements:
1 = strongly disagree; 2 = disagree; 3 = no opinion / neutral; 4 = agree; 5 = strongly agree
A. Court-ordered mediation is an effective means to manage my docket. (Average response: 4.31)
B. Absent a showing of good cause to the contrary, all civil cases (non-family) should be referred to mediation. (Average response: 3.72)
C. Absent a showing of good cause to the contrary, all family cases should be referred to mediation. (Average response: 3.75)
D. Mediation usurps the role of the judiciary. (Average response: > 1.13)
E. Mediation threatens the rule of law in that parties can reach settlement agreements that contain outcomes not available if their disputes are submitted to judges or juries for final disposition. (Average response: 1.73)
F. When appropriate, mediators should tell the parties what the possible outcomes are on specific issues, verdict amounts, or even the entire case if it goes to trial. (Average response: 3.8)
G. When appropriate, mediators should tell the parties what the probable outcomes are on specific issues, verdict amounts, or even the entire case if it goes to trial. (Average response: 3.25)
H. Parties are more satisfied with mediated settlement agreements (as opposed to judgments/verdicts) because they have control over the outcome of their dispute. (Average response: 3.82)
I. A mediation is a success only if an agreement is reached during the mediation itself. (Average response: 2.07)
By way of example, six judges reported that they never refer cases to mediation. However, at least two judges also reported that they only preside over criminal cases. This level of detail has not been factored into the general observations herein.
[Ed. note: the contents of this post appeared first in the Texas Mediator, Volume 24, Number 3, Spring 2010 and are reprinted with the author's permission.]
While in law school, Victoria was a Graduate Research Assistant for Professor John S. Dzienkowski, from The University of Texas at Austin. She was responsible for selecting cases for inclusion in the textbook International Petroleum Transactions. Victoria was particularly involved in researching the areas of international business litigation and arbitration. She also performed extensive research on political and economic risks within the context of international licensing agreements.
Having lived and studied in Mexico, Canada, and the U.S., Victoria brings a unique perspective to Karl Bayer. Right after high school, Victoria moved to Canada to study English and French. Born and raised in Mexico, she is a native Spanish speaker and a graduate of the Monterrey Institute of Technology (Instituto Tecnologico y the Estudios Superiores de Monterrey), where she concentrated in Physics and Mathematics.
- American Bar Association, Young Lawyers
- American Intellectual Property Law Association (AIPLA)
- Association of International Petroleum Negotiators (AIPN)
- National Hispanic Bar Association (NHBA)
- State Bar of Texas, Intellectual Property
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