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Texas law requires that state trial courts be active in promoting alternative dispute resolution and authorizes the courts to refer cases to mediation and appoint mediators. Issues regarding mediator qualifications and ethics have finally resulted in mediator credentialing in an effort to assist the courts, attorneys, and the public in identifying mediators who have accomplished a meaningful level of mediator training and experience and who have committed themselves to practice standards and rules of ethics for mediators enforceable through a grievance procedure. This paper will provide judges with the following important information about the significance of mediator credentialing to the work of the courts in referring cases to mediation:
1. The court’s statutory obligations in making referrals to mediation. While the Texas legislature has required the courts to encourage the use of ADR, mediation has become a significant part of the resolution of litigation and the administration of justice in Texas. Judges have been appointing mediators and referring cases to mediation and for many years. Although the courts have broad discretion in the matter, the Texas legislature has established criteria in the Texas Alternative Dispute Resolution Procedures Act (Chapter 154 of the Civil Practices and Remedies Code) for the court to consider in making such referrals and appointments. Texas law provides that it is the policy of the state to promote ADR (Sec.154.002 of Title 7 of the Act), that the courts should implement the policy (Sec. 154.003 of the Act), that the courts may refer cases to mediation and appoint mediators in implementing the policy (Sec. 154.021 of the Act), that mediators appointed by the courts must be qualified (Sec. 154.052 and Sec. 154.053 of the Act), that the court may set reasonable mediator fees (Sec. 154.054 of the Act), and that volunteer mediators appointed by the court are immune from liability under certain circumstances when the court appoints a mediator (Sec. 154.055 of the Act). 2. Statutory criteria in appointing a mediator. A mediator appointed by the court must be impartial and qualified under the Act (Sec. 154.051 of the Act). |
To be qualified the mediator must have completed a minimum of 40 classroom hours of training in dispute resolution techniques in a course approved by the statute, or have legal or other professional training or experience in mediation approved by the court. To be qualified for appointment in a case involving the parent-child relationship, the mediator must have completed an additional 24 hours of training in the fields of family dynamics, child development and family law, or have legal or other professional training or experience in mediation approved by the court (Sec. 154.052 of the Act). The statute also establishes standards for mediator conduct that the court should attempt to protect by appointing only qualified mediators. Mediators must be neutral and impartial in the matter being mediated, must assist the parties in reaching a resolution of their dispute in an appropriate manner, may not compel or coerce the parties, must protect the parties confidential information shared with the mediator, and must report child and elder abuse (Sec. 154.053 of the Act). 3. The nature and significance of mediator credentialing to the court in making referrals of cases to mediators. The State of Texas does not license, certify or credential mediators. With the exception of the statutory criteria the courts should use in appointing mediators, mediators and mediation in Texas is unregulated. The only mechanism for policing mediator conduct in cases where the courts appoint mediators is the diligence of the courts in appointing qualified mediators. With an ever increasing number of the attorneys and others seeking selection by the parties and appointment by the courts to mediate cases, there has been a corresponding number of questions about the qualifications, experience and competence of mediators. It has generally been only by word of mouth, personal experience or mediator advertising that attorneys, the courts and the litigants have been able to identify what appears to be qualified mediators. Mediators appointed by the court have the authority of the court to be trusted with and handle the parties’ most sensitive and confidential information during mediation. The court’s appointment charges the mediator with the responsibility of neutral and impartial conduct, and with the responsibility of conducting themselves in a manner that will not only protect the confidences of the parties, but in a manner that will protect and enhance the opportunity of the parties to resolve their litigation at the time of the mediation. The importance of the court placing this authority only in qualified mediators cannot be overstated. When a court appoints a mediator, the appointment carries with it a representation by the court that the mediator is qualified for the appointment. More>> |
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