In Support of Voluntary Mediation

I just received a wonderful update prepared by Mike Schless of Austin on the status of efforts by the Texas Supreme Court to comply with a legislative directive to make more efficient the resolution of disputes where the amount in controversy is $100,000, or less, and the parties have elected to proceed with a new Expedited Jury Trial Process. This is the legislation that for awhile threatened to include a controversial “loser pays” provision, but ultimately did not. A task force of ABOTA, Trial Lawyers, and Defense Counsel, after considerable debate, has recommended to the Supreme Court Rules Advisory Committee the following: “ADR: Unless the parties have agreed to engage in alternative dispute resolution or are required to do so by contract, the court must not–by order or local rule–require the parties to engage in alternative dispute resolution”.

The principal issue debated is whether ADR in these cases can be mandated, or should be strictly voluntary.

I wonder how far in the minority among my professional neutral colleagues I may be, but I actually think “voluntary” is the way to go. I have become concerned in recent years about abuses of mediation referral by some courts, who have become, in my view, overly dependent on ADR as a mechanism for docket control. Too often mediation has become not the efficient win-win alternative to disputing, but an added layer of delay and expense for the parties.

Ten to fifteen years ago a healthy percentage (90%?) of my mediations were mediations of pending lawsuits, and a healthy percentage (50%?) of those mediations were court-ordered.

Today about 50% of my cases are “pre-suit”, and the percentage of cases I mediate because the parties are satisfying a court-ordered obligation is around 10%.

I am close to the point where I could not receive another court-ordered mediation and it would not make a difference in my practice. I may get to a point in five years where 100% of my mediations are pre-suit (or at least pre-arbitration).

Mediation is not going away, but the market for ADR services is evolving—more contractual, more voluntary, and less court-annexed. Mediation works best when it is voluntary.

It will be interesting to see in which direction the Texas Supreme Court decides to go.