Mediation is a non-binding, informal settlement process provided for in Chapter 154 of the Texas Civil Practice and Remedies Code. This Code provides many important guidelines regarding qualifications of the mediator, rules regarding confidentiality, and direction encouraging the use of mediation and other forms of alternative dispute resolution. However, the Code fails to explain how the mediator should act in helping parties reach an understanding or settlement.
Therefore, you will find many approaches to mediation. Some mediators will push the line between mediation and trial, attempting to impose their opinion as to a “fair” compromise upon the parties. Other mediators will act as counselors for the parties, allowing the parties to rant endlessly, without addressing the conflict at hand or helping the disputants move toward a resolution. Still, other mediators will act as passive “messengers”, simply relaying offers and counter-offers between the parties, without providing opinion or assistance to the parties or their counsel.
In my opinion, the best mediators will be flexible and adapt their style to the individual needs of the litigants. There are times a mediator must lend a comforting ear and times where that mediator should provide strong leadership to the settlement process. A good mediator will work hand in hand with the parties’ counsel to offer the services that will likely produce a satisfactory outcome.