Mediation Portal

The Technical Definition of Mediation

“Mediation is a forum in which an impartial person, the mediator, facilitates communications between parties to promote reconciliation, settlement, or understanding among them.” That’s the Texas statute. Other definitions refer to the mediator as a “neutral” person. Most dictionaries point out that mediation comes from the Latin word “medius,” which means “middle” or “to divide in the middle.”
Who is this mediator, this impartial person? To begin with, Texas law says, “A mediator may not impose his own judgment on the issues for that of the parties.” The law goes on to say that a mediator “shall encourage and assist the parties to enter into a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement.” In other words, unlike a judge, the mediator can’t make anybody do anything. The only power the mediator has is the power to persuade.

The Most Widely Available Tool

So, why make such a big deal about not passing up an opportunity to mediate? The answer is simple. Because, in Texas, mediation is usually the best opportunity to settle a difficult case without a trial. It is not the only method. Often it may not even be the best method. But, in the Texas court system, it has become the settlement coin-of-the-realm, widely accepted and expected by lawyers and judges. Often, with many judges, it is not only accepted, it is virtually demanded.
Mediation has become such a routine ritual in the Texas court system that, in and of itself, it carries power and weight that can benefit or harm a litigant. It is now the way that “we” in this State handle our business. It’s written into law. More importantly, mediation is such an integral part of the court system that its use is almost “unconscious.” In other words, it’s like the carpenter’s hammer. It has been used long enough that the carpenter no longer thinks about its shape, the philosophy of using it, or where it came from. He just picks the hammer up and drives the nail. That’s what you’ve got to do with mediation, if you get the chance.

Mediation Index

  1. Getting the Flavor of Mediation
  2. If You Are Ordered to Mediate, Can You Object?
  3. Should All Cases Be Mediated?
  4. Confidentiality
  5. Mediation Essentials — Opportunity to Tell Your Side of the Story
  6. Mediation Essentials: Listening Can Pay Big Dividends
  7. Mediation Essentials: The Typical Mediation Format
  8. How Soon Should the Case Be Mediated?
  9. How Long Will It Take? How Much Will It Cost?
  10. Choosing a Mediator — What You’re Looking For
  11. Choosing a Mediator — Weeding Out the Clueless
  12. Mediation: It Is Not the Place or the Time for Drama or Surprises
  13. Mediation: Unintended Consequences — Mediation Sometimes Is Just a Discovery Tool
  14. Mediation: The Mediation Process Is Not a Substitute for the Trial Process
  15. Mediation: Understanding the Mediator’s Bias
  16. Mediation: Can You Mediate without a Mediator?
  17. Mediation: Can You Mediate without a Lawyer Present?
  18. Mediation: Mediated Settlement Agreements Are for Keeps
  19. Mediation: The Dark Side of Mediation