After a lawsuit is filed, several ADR processes are available to encourage early settlement of civil cases with the assistance of third party neutrals. The Texas ADR Act of 1987 establishes five private and confidential processes, which may be court ordered or may be voluntarily agreed to by the parties.
The processes can be particularly beneficial when parties have an ongoing business or personal relationship, when there is a need for privacy, or when economic or other pressures favor early settlement.
Larry is trained and experienced in serving as a third party neutral and ADR facilitator in these processes. He can assist parties in designing variations or combinations of these processes to advance early settlement of their case.
Over the past twenty-five years, mediation has become the ADR process of choice. Most courts routinely refer cases to mediation and some courts require the parties to mediate before obtaining a trial setting. The process has proven to be effective in reducing over-crowded court dockets; and, because the parties themselves actively participate, there is usually a high degree of client satisfaction with any settlement reached and with the mediation process.
In the mediation process a neutral person, the mediator, meets with the parties in a private, confidential setting to assist the parties in settling their dispute. The parties are in control of achieving a mutually acceptable settlement. The mediator may suggest ways of resolving the dispute, but will not impose a settlement upon anyone and will not act as an advocate for any party. Parties may or may not be represented by counsel. Before a suit is filed, parties may voluntarily agree to mediation. In a pending suit the court may order parties to mediation.
Summary Jury Trial
Summary jury trial affords parties a preview of an actual jury trial. The process takes place in the courtroom, and gives the parties an opportunity to experience a formal court hearing. An experienced trial lawyer who is trained as a mediator will generally preside. The rules of evidence are relaxed and the process is usually completed in a day or less.
The jurors are selected from the regular jury panel and their decision is advisory in nature. However, the jurors are not informed of the advisory nature of their decision until after the verdict is rendered. At that time, the parties and their attorneys have the opportunity to discuss the verdict with the jurors. After visiting with the jurors, the parties and their attorneys engage in settlement discussion, often with the assistance of a mediator.
This procedure is particularly useful when the parties have a genuine interest in settling their dispute and a full trial on the merits will require considerable time and be very expensive.
This process is a variation of the summary jury trial which takes place in an informal setting, and not in the courtroom. Each party and their attorney present their position either to an impartial third party, or to selected representatives of opposing parties. The objective is to define the issues and develop a basis for realistic settlement negotiations.
If an impartial third party is involved, he or she may issue an advisory opinion which is not binding on the parties unless they agree that it is binding and enter into a written settlement agreement.
This process is particularly useful for resolving business disputes. In an informal setting, the decision makers seeking to maintain relationships, can focus on business solution rather than on resolving specific legal issues.
Moderated Settlement Conference
This process is helpful whenever the parties and their attorneys can benefit from an objective evaluation of their case. The parties assemble a mutually agreeable panel of attorneys and/or other professionals experienced in the subject matter of the dispute.
Each party presents their case in summary form, generally taking no more than an hour. The panel may ask questions of the parties and attorneys. After the panel confers privately, it will provide the parties with an evaluation of the strengths and weaknesses of their case; or, if requested to do so, it will issue an advisory opinion regarding liability and/or damages in the case.
The parties may chose to have a single mutually agreeable third party neutral give an evaluation of their case, and use the evaluation in further settlement negotiations.
Arbitration is private and confidential and can be a faster, more efficient and less costly alternative to litigation. Before entering into an agreement to arbitrate, the parties will agree that they will be bound by the decision of the arbitrator(s), or that the decision will be only advisory in nature. If the parties agree in advance that they will be bound by the arbitrator’s decision which is called an award, it is enforceable in a court of law.
Non-binding arbitration is a forum in which each party and their attorney present the position of the party before a mutually agreeable impartial third party or a panel usually consisting of three arbitrators. The arbitrator(s) render a decision which is not binding on the parties and serves only as a basis for further settlement negotiations. Frequently, the non-binding opinions of arbitrators influence parties to settle their disputes.