In 1997, The Texas state legislature passed the Texas Alternative Dispute Resolution Act. However, the passage of this legislation was an arduous task that encountered numerous hurdles and road blocks. In the article below which is being reproduceed with the author’s permission, Lisa Weatherford provides an in depth overview of the bill from its first draft, to its final form, and the process of making it law.
Texas ADR Act Legislative History
Texas Alternative Dispute Resolution Legislation
- Texas Alternative Dispute Resolution Procedures Act- Chapter 154 of the Texas Civil Practice and Remedies Code
- Civ. Prac. & Rem. Code § 154.021
- Under this chapter, a court may refer a case to alternative dispute resolution (ADR) in response to party’s motion or a motion of the court. Alternative dispute resolution processes addressed in the chapter include: mediation, minitrial, moderated settlement conference, summary jury trial and arbitration. The statute also discusses impartial third parties, who are appointed by the courts to facilitate ADR procedures. The statute addresses issues such as appointment, qualifications, duties, compensation and immunity of those third parties. The state of Texas gives “special consideration…to disputes involving the parent-child relationship.”
- The Texas General Arbitration Act: Texas Civil Practice and Remedies Code, Chapter 171
- (Text Civ. Prac. & Rem. Code, Chapter 171)
- The Texas General Arbitration Act provides a statutory frame- work for the specific enforcement of contracts whereby the parties agree to submit existing or future disputes to binding arbitration (Text Civ. Prac. & Rem. Code, Chapter 171). The statute furnishes a variety of substantive and procedural rules that govern the arbitration unless otherwise specified by the parties.
- Family Code Title 5 The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship, Chapter 153
- Section 153.0071: Suit affecting the parent-child relationship to mediation, and enter judgment on a mediated settlement agreement so long as the agreement was in the childs best interest.
- Texas Civil Practice and Remedies Code Title 7, Chapter 152 Alternative dispute resolution system established by counties
- Civ. Prac. & Rem. Code § 152
- This statute states that the commissioners courts of each county may establish an alternative dispute resolution system to include mediation, conciliation or arbitration. The court may contract with nonprofit corporations, political subdivisions, a public corporation or a combination of these in order to administer the system. The chapter addresses referral of cases, court cost and other fees.
- Chapter 152 of the Texas Civil Practice and Remedies Code establishes a county-by-county system for the creation, fund- ing and administration of an “alternative dispute resolution system,” commonly known as community dispute resolution centers or mediation centers. Funding for these centers is obtained by an additional court cost in civil cases in the county courts and district courts.
- Texas Civil Practice and Remedies Code Title 7, Chapter 155 Settlement Weeks
- Settlement Week Act of 1989- Senate Bill 1625 (Tex. Civ. Prac. & Rem. Code Ann. Chapter 155)
- This chapter states that any county with a population of 150,000 or above shall have a settlement week, during which district courts, constitutional and statutory county courts and the family law courts “will facilitate the voluntary settlement of civil and family law cases.” Any attorney currently licensed in Texas may serve as a mediator if he or she has proper training. Administrative judges will cooperate with a mediation or alternative dispute resolution center, as well as with the local bar and other interested organizations, in order to “encourage participation and increase public awareness about settlement week.”
- Trial by Special Judge Chapter 151 of the Texas Civil Practice and Remedies Code authorizes a procedure in civil and family law matters whereby a pending case may be stayed pending trial by a specially appointed and privately compensated judge.
- International Commercial Disputes: 1989 Texas Statute (Tex Civ. Prac. & Rem, Code, Chapter 172
- A separate Texas statute enacted in 1989 deals with arbitra- tion and conciliation of existing or future controversies that qualify under the statute as being “international” and “com- mercial” in character (Text Civ. Prac. & Rem. Code, Chapter 172).
- The Negotiated Rulemaking Act (Tex Gov’t Code, Chapter 2008)
- 5 U.S.C.S. § 561
- The Negotiated Rulemaking Act (Tex Gov’t Code, Chapter 2008) encourages Texas agencies to use negotiated rulemaking (“reg-neg”) and outlines how the process should be used. This Act:
- Clarifies that reg-neg is a voluntary addition to the Texas Administrative Procedures Act;
- Grants explicit authority and encouragement for Texas entities to use negotiated rulemaking for drafting a proposed rule and outlines specific steps taken in a negotiated rulemaking;
- Establishes factors that the entity must consider before deciding to use the process and requires use of a neutral “convener” to help evaluate whether the process is appropriate;
- Requires the entity to publish notice and consider comments before using reg-neg;
- Grants authority to entities to support the participation of individuals to represent necessary interests who face resource constraints;
- Applies the 40-hour training requirement and other Texas ADR Procedures Act standards and duties to reg-neg facilitators;
- Requires that reg-neg committees operate on a full consensus basis; and
- Extends confidentiality provisions of the Texas ADR Procedures Act to negotiated rulemakings.
- The Governmental Dispute Resolution Act (Tex Gov’t Code, Chapter 2009)
- The Governmental Dispute Resolution Act (Tex Gov’t Code, Chapter 2009) provides explicit statutory authorization and encouragement of governmental entity ADR use. The Act conveys the Legislature’s endorsement of ADR use by these entities and establishes ADR as an appropriate method of resolving public disputes. Key provisions include:
- Declares that it is Texas policy that entities use ADR procedures in appropriate operations and programs;
- Grants budgetary authority to entities to pay for items related to implementing the Act;
- Authorizes entities to obtain ADR services from other governmental entities, agency “pooling” agreements, community Dispute Resolution Centers and private providers;
- Applies the 40-hour training requirement and other Texas ADR Procedures Act standards and duties to governmental impartial third parties;
- Extends confidentiality provisions of the Texas ADR Procedures Act to governmental ADR; and
- Grants State Office of Administrative Hearings administrative law judges’ authority to conduct ADR proceedings and refer contested cases to ADR.
Civil Practice and Remedies Code:
The Supreme Court of Texas has long recognized the need for oversight of the quality of mediation in Texas. During the initial public debate of the issue, some mediation practitioners proposed adopting ethical rules of mediators to enhance the quality of Texas mediation and mediators. Others advocated mediation licensing or credentialing.
The Court determined that, at a minimum, ethical rules should be implemented and enforced. Thus, the Court created the Advisory Committee on Court-Annexed Mediations to formulate mediation ethics rules that address, among other things, the avoidance and disclosure of conflicts of interest and the timely disclosure of fees. Below are the adopted standards and ethical guidelines for mediators in the state of Texas.
- Mediation Defined. Mediation is a private process in which an impartial person, a mediator, encourages and facilitates communications between parties to a conflict and strives to promote reconciliation, settlement, or understanding. A mediator should not render a decision on the issues in dispute. The primary responsibility for the resolution of a dispute rests with the parties.
Comment. A mediator’s obligation is to assist the parties in reaching a voluntary settlement. The mediator should not coerce a party in anyway. A mediator may make suggestions, but all settlement decisions are to be made voluntarily by the parties themselves.
- Mediator Conduct. A mediator should protect the integrity and confidentiality of the mediation process. The duty to protect the integrity and confidentiality of the mediation process commences with the first communication to the mediator, is continuous in nature, and does not terminate upon the conclusion of the mediation.
Comment (a). A mediator should not use information obtained during the mediation for personal gain or advantage.
Comment (b). The interests of the parties should always be placed above the personal interests of the mediator.
Comment (c). A mediator should not accept mediations which cannot be completed in a timely manner or as directed by a court.
Comment (d). Although a mediator may advertise the mediator’s qualifications and availability to mediate, the mediator should not solicit a specific case or matter.
Comment (e). A mediator should not mediate a dispute when the mediator has knowledge that another mediator has been appointed or selected without first consulting with the other mediator or the parties unless the previous mediation has been concluded.
- Mediation Costs. As early as practical, and before the mediation session begins, a mediator should explain all fees and other expenses to be charged for the mediation. A mediator should not charge a contingent fee or a fee based upon the outcome of the mediation. In appropriate cases, a mediator should perform mediation services at a reduced fee or without compensation.
Comment (a). A mediator should avoid the appearance of impropriety in regard to possible negative perceptions regarding the amount of the mediator’s fee in court-ordered mediations.
Comment (b). If a party and the mediator have a dispute that cannot be resolved before commencement of the mediation as to the mediator’s fee, the mediator should decline to serve so that the parties may obtain another mediator.
- Disclosure of Possible Conflicts. Prior to commencing the mediation, the mediator should make full disclosure of any known relationships with the parties or their counsel that may affect or give the appearance of affecting the mediator’s neutrality. A mediator should not serve in the matter if a party makes an objection to the mediator based upon a conflict or perceived conflict.
Comment (a). A mediator should withdraw from a mediation if it is inappropriate to serve.
Comment (b). If after commencement of the mediation the mediator discovers that such a relationship exists, the mediator should make full disclosure as soon as practicable.
- Mediator Qualifications. A mediator should inform the participants of the mediator’s qualifications and experience.
Comment. A mediator’s qualifications and experience constitute the foundation upon which the mediation process depends; therefore, if there is any objection to the mediator’s qualifications to mediate the dispute, the mediator should withdraw from the mediation. Likewise, the mediator should decline to serve if the mediator feels unqualified to do so.
- The Mediation Process. A mediator should inform and discuss with the participants the rules and procedures pertaining to the mediation process.
Comment (a). A mediator should inform the parties about the mediation process no later than the opening session.
Comment (b). At a minimum, the mediator should inform the parties of the following: (1) the mediation is private (Unless otherwise agreed by the participants, only the mediator, the parties and their representatives are allowed to attend.); (2) the mediation is informal (There are no court reporters present, no record is made of the proceedings, no subpoena or other service of process is allowed, and no rulings are made on the issues or the merits of the case.); and (3) the mediation is confidential to the extent provided by law. (See, e.g., §§154.053 and 154.073, Tex. Civ. Prac. & Rem. Code.)
- Convening the Mediation. Unless the parties agree otherwise, the mediator should not convene a mediation session unless all parties and their representatives ordered by the court have appeared, corporate parties are represented by officers or agents who have represented to the mediator that they possess adequate authority to negotiate a settlement, and an adequate amountoftime has been reserved by all parties to the mediation to allow the mediation process to be productive.
Comment. A mediator should not convene the mediation if the mediator has reason to believe that a pro se party fails to understand that the mediator is not providing legal representation for the pro se party.
- Confidentiality. A mediator should not reveal information made available in the mediation process, which information is privileged and confidential, unless the affected parties agree otherwise or as may be required bylaw.
Comment (a). A mediator should not permit recordings or transcripts to be made of mediation proceedings.
Comment (b). A mediator should maintain confidentiality in the storage and disposal of records and should render anonymous all identifying information when materials are used for research, educational or other informational purposes.
Comment (c). Unless authorized by the disclosing party, a mediator should not disclose to the other parties information given in confidence by the disclosing party and should maintain confidentialitywith respect to communications relating to the subject matter of the dispute. The mediator should report to the court whether or not the mediation occurred, and that the mediation either resulted in a settlement or an impasse, or that the mediation was either recessed or rescheduled.
Comment (d). In certain instances, applicable law may require disclosure of information revealed in the mediation process. For example, the Texas Family Code may require a mediator to disclose child abuse or neglect to the appropriate authorities. If confidential information is disclosed, the mediator should advise the parties that disclosure is required and will be made.
- Impartiality. A mediator should be impartial toward all parties.
Comment. If a mediator or the parties find that the mediator’s impartiality has been compromised, the mediator should offer to withdraw from the mediation process. Impartiality means freedom from favoritism or bias in word, action, and appearance; it implies a commitment to aid all parties in reaching a settlement.
- Disclosure and Exchange of Information. A mediator should encourage the disclosure of information and should assist the parties in considering the benefits, risks, and the alternatives available to them.
- Professional Advice. A mediator should not give legal or other professional advice to the parties.
Comment (a). In appropriate circumstances, a mediator should encourage the parties to seek legal, financial, tax or other professional advice before, during or after the mediation process.
Comment (b). A mediator should explain generally to pro se parties that there may be risks in proceeding without independent counselor other professional advisors.
- No Judicial Action Taken. A person serving as a mediator generally should not subsequently serve as a judge, master, guardian ad litem, or in any other judicial or quasi-judicial capacity in matters that are the subject of the mediation.
Comment. It is generally inappropriate for a mediator to serve in a judicial or quasi-judicial capacity in a matter in which the mediator has had communications with one or more parties without all other parties present. For example, an attorney-mediator who has served as a mediator in a pending litigation should not subsequently serve in the same case as a special master, guardian ad litem, or in any other judicial or quasi-judicial capacity with binding decision-making authority. Notwithstanding the foregoing, where an impasse has been declared atthe conclusion of a mediation, the mediator if requested and agreed to by all parties, may serve as the arbitrator in a binding arbitration of the dispute, or as a third-party neutral in any other alternative dispute proceeding, so long as the mediator believes nothing learned during private conferences with any party to the mediation will bias the mediator or will unfairly influence the mediator’s decisions while acting in the mediator’s subsequent capacity.
- Termination of Mediation Session. A mediator should postpone, recess, or terminate the mediation process if it is apparent to the mediator that the case is inappropriate for mediation or one or more of the parties is unwilling or unable to participate meaningfully in the mediation process.
- Agreements in Writing. A mediator should encourage the parties to reduce all settlement agreements to writing.
- Mediator’s Relationship with the Judiciary. A mediator should avoid the appearance of impropriety in the mediator’s relationship with a member of the judiciary or the court staff with regard to appointments or referrals to mediation.
Dispute Resolution Centers in Texas
Dispute Resolution Center
(serving Potter & Randall Counties)
P.O. Box 9257
Amarillo, TX 79105-9257
Phone: 806-372-3381; Fax: 806-373-3268
Travis County DRC
Dispute Resolution Center
5407 N. IH 35, Suite 410
Austin, TX 78723
Phone: 512-371-0033; Fax: 512-371-7411
Jefferson County DRC
Dispute Resolution Center of Jefferson County, Inc.
Courthouse Annex 1
215 Franklin, Suite 131A
Beaumont, TX 77701
Phone: 409-835-8747; Fax: 409-784-5811
Brazos Valley DRC
Brazos Valley Dispute Resolution Center
(serving Brazos, Burleson, Grimes, Leon, Madison, Robertson & Washington counties)
1737 Briarcrest Dr., Suite 11
Bryan, TX 77802
Phone: 979-822-6947; Fax: 979-779-6528
Montgomery County DRC
Dispute Resolution Center of Montgomery County, Inc.
301 N. Thompson, Suite 106
Conroe, TX 77301
Phone: 936-760-6914; Fax: 936-538-8050
Nueces County DRC
Nueces County Courthouse
(serving Bee, Live Oak, Nueces & San Patricio counties)
901 Leopard, Room 401.2
Corpus Christi, TX 78401
Phone: 361-888-0650; Fax: 361-888-0754
Dallas County DRC
Dallas County Dispute Resolution Center
600 Commerce St., Ste. 681
Dallas, TX 75202
Phone: 214-653-6048; Fax: 214-653-7202
Denton County DRC
Denton County Alternative Dispute Resolution Program
512 W. Hickory St.
Denton, TX 76201
El Paso County DRC
El Paso County Dispute Resolution Center
(serving Brewster, Culberson, Dona Ana, El Paso, Hudspeth, Jeff Davis & Presidio counties)
8037 Lockheed, Ste. 100
El Paso, Texas 79925
Phone: 915-533-0998; Fax: 915-532-9385
Tarrant County DRC
Dispute Resolution Services of North Texas, Inc.
4304 Airport Freeway, Suite 100
Fort Worth, TX 76117
Phone: 817-877-4554; Fax: 817-877-4557
Harris County DRC
Dispute Resolution Center of Harris County
49 San Jacinto, Suite 220
Houston, TX 77002-1233
Phone: 713-755-8274; Fax: 713-755-8885
Hill Country DRC
Hill Country Dispute Resolution Center
(serving Bandera, Edwards, Gillespie, Kendall, Kerr, Kimble, Mason, Medina, Menard & McCulloch counties)
327 Earl Garrett, Suite 108
Kerrville, TX 78028
Phone: 830-792-5000; Fax: 830-792-6220
Ed Reaves, Director
Lubbock County DRC
Office of Dispute Resolution
(serving Crosby and Lubbock counties)
P.O. Box 10536
Lubbock, TX 79408-3536
Phone: 866-329-3522; Fax: 806-775-1729
Lamar County DRC
Dispute Resolution Services – Paris Junior College
(serving Delta, Fannin, Franklin, Hopkins, Hunt, Lamar & Red River counties)
Paris, TX 75460-6298
Phone: 903-783-9839; Fax: 903-782-0443
Fort Bend County DRC
Fort Bend Dispute Resolution Center
211 Houston Street
Richmond, TX 77469
Phone: 281-342-5000; Fax: 281-232-6443
Bexar County DRC
Bexar County Dispute Resolution Center
Cadena- Reeves Justice Center
300 Dolorosa, Suite 1.102
San Antonio, TX 78205-3009
Phone: 210-335-2754; Fax: 210-335-2941
Central Texas DRC
Central Texas Dispute Resolution Center
(serving Caldwell, Comal, Guadalupe & Hays counties)
829 N. LBJ, # 108
San Marcos, TX 78666-4694
Phone: 512-878-0382; Fax: 1-866-475-4195
McLennan County DRC
McLennan County Dispute Resolution Center
900 Austin Ave., Suite 502
Waco, TX 76701
Phone: 254-752-0955; Fax: 888-701-2310
Regional and National ADR Organizations
Additional Information regarding ADR generally, from local programs to international initiatives, can be found by accessing the information found on the following links / websites.
Houston Bar Association ADR Section https://www.hba.org/?pg=Alternative-Dispute-Resolution
The Section of Dispute Resolution of the Houston Bar sponsors monthly educational programs focusing on a variety of ADR topics as well as an annual conference, in conjunction with the Evans Center at South Texas College of Law Houston.
State Bar of Texas Section of Alternative Dispute Resolutio : www.texasadr.org
This Section of the State Bar has actively promoted ADR use throughout the state of Texas since its inception in 1992. Prior to that time, the predecessor Committee was quite active in both community and court annexed ADR. The ADR Section provides numerous resources in ADR for the legal community, and has sponsored a variety of publications. The Section also hosts an Annual Conference and is active in legislative activity related to ADR.
Texas Association of Mediators (TAM) www.txmediator.org
The Texas Association of Mediators is a statewide, interdisciplinary organization whose Mission is to provide leadership and education in the field of mediation, and valued benefits to the organization’s Members.
American Bar Association Dispute Resolution Section www.abanet.org/dispute
The American Bar Association Section of Dispute Resolution, created in 1992, provides its members and the public with creative leadership in the dispute resolution field by fostering diversity, developing and offering educational programs, providing technical assistance, and producing publications that promote problem-solving and excellence in the provision of dispute resolution services.
Association for Conflict Resolution (ACR) www.acrnet.org
The Association for Conflict Resolution is a professional organization
dedicated to enhancing the practice and public understanding of conflict resolution. The Association hosts an annual conference, and published both a magazine as well as a Journal on Conflict Resolution topics.
Association of Attorney Mediators (AAM) www.attorney-mediators.org
AAM is a nonprofit trade association of qualified, independent attorney-mediators. Members of AAM must meet qualifications and ethical standards which meet or exceed state or Federal requirements for mediators.
International Academy of Mediators www.iamed.org
The mission of the International Academy of Mediators is to define standards and qualifications for the professional mediator of commercial disputes and to promote the mediation process as the preferred means of resolving disputes.
This website, perhaps one of the first, provides a rather comprehensive composite of mediation and conflict resolution information. Included are numerous mediation-related articles, information on education and training, sites to related blogs, educational programs, job listings, as well as a data of mediators.
Information on Online Dispute Resolution www.odr.info
Is the National Center for technology and dispute resolution, providing numerous resources as well as sponsorship of an annual cyberweek each fall.