Mediation based on party self-determination is becoming threatened by current practices and the "colonization" of the dispute resolution arena by attorneys, the president of a Southeast Texas law school said recently to a legal group in Beaumont.
James Alfini, president and dean of the South Texas College of Law in Houston, spoke at an Oct. 30 luncheon recognizing the 20th anniversary of the Texas Alternative Dispute Resolution Act. The luncheon was hosted by the Dispute Resolution Center of Jefferson County, the Jefferson County Bar Association and the Jefferson County Young Lawyers Association.
Alfini has a bachelor's degree from Columbia University and a doctor of jurisprudence from Northwestern University School of Law and is an expert in alternative dispute resolution, Constitutional law, mediation and judicial ethics.
He said that the high numbers of lawyers now acting as mediators are eroding the core spirit of the ADR Act.
In 1987, the Texas Legislature approved the Alternative Dispute Resolution Act, legislation that contains a policy for the state of Texas encouraging the early resolution of pending litigation through voluntary settlement procedures.
For the past 20 years, thousands of disputes have been successfully mediated, alleviating court dockets and litigation costs. But Alfini believes that over the past two decades the process may have strayed from its core purpose – to provide a low cost and efficient method for parties to talk face to face in the presence of a neutral party to peacefully resolve a dispute.
He said marketplace demands have led more and more attorneys to become licensed mediators, with lawyers seeing it as a resume builder and an additional way to market themselves. This is particularly true in Texas, Florida and California, where dispute resolution centers and court-annexed mediation has caught on. Other states, like Illinois, have not embraced the mediation system to the same degree, Alfini said, because the judiciary there has not promoted the practice.
For "big stakes" cases, like civil litigations coming out of district courts, lawyers make up about 95 percent of the mediators, Alfini said. In small claims and family law disputes, the number is about 50 percent.
The law professor said that when lawyers become mediators, it can reduce the role of the actual disputing parties, as negotiations often take place among the lawyer-mediator and the counsel for the parties, not the parties themselves.
"This mutes the parties and returns it to a lawyer-centric, not party-centric system," Alfini said.
When lawyer-mediators take on an evaluative role – offering opinions on settlement options – the framework is narrowed and it invites attorney dominance to the process. By suggesting an amount or specific option for settlement, studies have shown that in the end the parties are less satisfied with the outcome of the mediation, feeling that the mediator was somehow partial to one of the sides.
Alfini said on the decline is the joint session in which the two parties and the neutral mediator sit down together at the conference table. Taking its place is a form of "shuttle diplomacy" – one party or its counsel in one room, the other party in another room and the mediator going back and forth between the two.
"This sacrifices effective justice for efficient deal brokering," he said.
Gone is the opportunity for the parties to tell their side of the story directly to the opposing party, Alfini said. Instead of give and take between the parties, which can lead to a settlement agreeable to both, the parties now rely on the lawyer-mediator to tell the story for them.
But Alfini said it is not too late to reform the dispute resolution system.
He encouraged all mediators to study and focus on the Ethical Guidelines for Mediators by the Texas Supreme Court. Issued in 2005, the guidelines begin by defining mediation as "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 court wrote. "The primary responsibility for the resolution of a dispute rests with the parties."
The Ethical Guidelines for Mediators can be found on the Texas Supreme Court Web site at www.supreme.courts.state.tx.us/rules/rules.asp#standards.