ALTERNATIVE RESOLUTIONS STATE BAR OF TEXAS ALTERNATIVE DISPUTE RESOLUTION SECTION CHAIR’S CORNER By Alvin L. Zimmerman, Chair, ADR Section I wish to express my appreciation in behalf of the ADR Section to Robert Prather, Jr., secretary of our section who took the lead in planning our CLE at the State Bar Annual Convention, June 20, 2013, in Dallas, Texas. Bob, together with members of the Litigation Section including Paula Hinton and Boston Talmadge, have planned a great program with a theme around President Lincoln–the consummate mediator, lawyer, and judge. We will have two nationally acclaimed speakers/authors: Chief Judge Frank Williams and John DeGroote both of whom have written extensively about President Lincoln. Our program will begin at 1:30. Last year our joint CLE was a sell-out with standing room only and some that had to be turned away. This year’s program should be equally exciting. We hope to see many of you in Dallas. Also I would like to extend a personal thanks to Boston Talmadge for his tireless work for the State Bar, our profession, and helping all of us convene this program.

There also lives among us a hero by the name of John (Mike) Amis. Mike is just a “country lawyer” from Richardson, Texas, who has been at the forefront of ADR for more years then I can recall. You know there is an expression that an idea begins with one voice, a movement begins with a person of enormous conviction. Mike Amis is such a man. We that know him will say that single handedly, he created a movement to alter the course of the proposed Texas Rule of Procedure about which an article has been included in this issue. If you ask Mike, he will tell you that he only had a minor role to play, and he was only one of many concerned mediators in our great state that said the original proposed rule was not acceptable. The truth is, no change would have been agreed to by Justice Hecht without Mike’s rallying the troops to what was being proposed.

Vol. 22, No. 3 Spring 2013

Inside This Issue: (click on title to jump to article)

The 2013 Texas Legislative Session: A “Half-Time Report ································· 3 A Report To The Supreme Court Advisory Committee From The Texas Access To Justice Commission On The Court’s Uniform Forms Task Force ················································ 9 Divorce Forms Will Burden Lower Courts With Teaching Litigants The Legal System ··················································· 21 Why We Need Court-Approved Legal Forms For the Poor ··········································· 23 CPR Patent Mediation Task Force Report ·································· 25 The Path Toward A Federal Mediation Privilege: Approaches Toward Creating Consistency For A Mediation Privilege in Federal Courts ········································ 36 Mass Disaster Mediation: Innovative ADR, or A Lion’s Den? ···································· 49 Carbon-Free CLE: The Example Of The Winning Settlements Workshop ·············· 52 The Latest On Arbitration······················· 56 Ethical Puzzler ········································ 59 ADR On The Web: Mediation Cubed ···································· 64 Calendar of Events ································· 65

He traveled near and far, met with many of us personally, got on the agenda of the Board of Directors of the State Bar at their meeting in Galveston to acquaint them with what was happening, and through his never-saydie attitude created a letter-writing campaign that besieged Justice Hecht to persuade him to alter what many of us thought would never be changed. Alternative Resolutions

2012-2013 Officers and Counsel Members ················································ 66 Encourage Colleagues to Join ADR Section ··················································· 67 Alternative Resolutions Publication Policies································· 68 Alternative Resolutions Policy for Listing of Training Programs············· 68

In fact, in an article in the Texas Lawyer dated February 25, entitled “Flood of Comments Prompts Change in Expedited Action Rule,” Justice Hecht is quoted as saying, “The Texas Attorney Mediator Coalition submitted a proposal that influenced the change to the ADR provision.” Through this dynamic man, he created an organization of financial substance that will in the future continue to be a watch dog with professionals to be ever vigilant and reactive to any further “new ideas” to lessen the effect of mediation in our jurisprudence. We that mediate, we that use mediation, Judges that sign orders for mediation salute you and thank you.


You, Mike Amis truly are an inspiration to those of us who might have otherwise sat around and permitted our profession to be eroded one step at a time by the promulgation of a rule that few of us really paid any attention to until you, as our Paul Revere awakened us. Thank you, thank you. (Please read Bill Lemmon’s article about Rule 169 in this issue).

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Every two years, the Texas Legislature convenes for approximately five months. The 83rd legislative general session was gaveled to a start at noon on Tuesday, January 8, 2013, and the 140 day clock is now running. The last day to file legislation was March 8, 2013. It has been estimated that about 6,000 bills were introduced during the current session — some 4,000 in the House and 2,000 in the Senate. The enactment rate for new legislation is generally under 10 percent. The Texas Attorney-Mediators (TAM) Coalition follows and provides input on proposed legislation that would affect mediation. If one of the bills described below spurs you to action, you may contact the group through Co-Chairs Mike Amis of Dallas or Elaine Block in Houston. The Texas Arbitration Council follows legislation that would have an impact on arbitration. You can contact that group through Richard Evans, the group’s legislative consultant in Austin.

ARBITRATION H.B. 33. Introduced by Representative José Menéndez (D-San Antonio) on November 11, 2012, this is an act relating to alternative methods of dispute resolution in certain disputes between the Department of Aging and Disability Services and an assisted living facility licensed by the department. Our information is that this bill was filed early by a veteran and very respected legislator, has a low number, Spring 2013, Vol. 22, No. 3

probably has the support of the industry group (Texas Assisted Living Association) representing service provider facilities, and most likely the support of the agency itself. H.B. 33 is a refinement of what in the last session was introduced as H.B. 2041. This bill directs the Health and Human Services Commission to establish by rule an informal dispute resolution process to address disputes between a facility and the department as a result of a survey review conducted by the department . . . The bill amends Chapter 247, TEXAS HEALTH AND SAFETY CODE, to provide that an affected facility may elect binding arbitration with respect to a dispute involving renewal of a license, suspension or revocation of a license, assessment of a civil penalty or assessment of an administrative penalty. If litigation is pending pertaining to one of these topics, the election must be filed in that court not later than the 10th day after the answer is due. The Department also may elect arbitration under this subchapter. The arbitration and the appointment of the arbitrator shall be conducted in accordance with rules adopted by the chief administrative law judge of the State Office of Administrative Hearings, who shall consider appropriate rules developed by any nationally recognized association that performs arbitration services. The party that elects arbitration shall pay the cost of the arbitration, and total fees and expenses paid for an arbitrator may not exceed $1,000 per diem. The State Office of Administrative Hearings may designate and contract with a nationally recognized association to conduct arbitrations under this subchapter. Each arbitrator must either be on an ap-

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proved list of that national association or be otherwise qualified as provided in the rules to be adopted. The subchapter goes on to specify the arbitration procedures, from soup to nuts. H.B. 288. Introduced by Representative Zedler (RArlington) on December 14, 2012, this bill is an act relating to the application of foreign and international laws and doctrines in this state and requiring a court of this state to uphold and apply certain laws, including the doctrine requiring courts to refrain from involvement in religious doctrinal interpretation or application. The bill amends Title 6, TEXAS CIVIL PRACTICE AND REMEDIES CODE, to prohibit a court, arbitrator or administrative adjudicator from basing a ruling or decision upon a foreign or international law or doctrine, or upon a prior ruling or decision that was based on a foreign or international law or doctrine. The bill defines “foreign or international law or doctrine” to mean a law, rule, legal code or principle of a jurisdiction outside the legal traditions of the states and territories of the United States, including international laws, that do not have a binding effect on this state or the United States. Finally, the bill requires that a court (doesn’t mention arbitrator) uphold and apply the Constitution of the United States, the constitution of this state, federal laws, and the laws of this state, including the doctrine that is derived from the First Amendment to the United States Constitution and known as the church autonomy doctrine, which in part requires courts to refrain from involvement in religious doctrinal interpretation or application. This writer will not speculate what the purpose of this bill is, and we will have to wait until further dialogue and debate to ascertain that. It may simply mean that decisions may not be based on the Koran. A colleague in New York opines that this type of legislation would appear to prevent rabbinical or other ecclesiastical courts from being considered arbitral tribunals. There apparently is case law in many states (and particularly in New York) that considers a rabbinical court (bais din or beit din) as an arbitral tribunal, and enforces its awards, where the parties voluntarily submit to jurisdiction, and the proceedings are consistent with due process, and do not conflict with public policy. 4

S.B. 355. Introduced by Senator Royce West (DDallas) on February 4, 2013, this bill would amend Section 231.002 of the Texas Family Code to remove a Title IV-D agency, for purposes of enforcement or modification of a child support order, from being subject to a mediation or arbitration clause in the order, or subject to a mediation or arbitration agreement affecting the order to which the agency was/is not a party. The bill also removes that agency from liability for any costs associated with mediation or arbitration.

S.B. 296, and its companion H.B. 586. Introduced by Senator Deuell (R-Mesquite) on January 29, 2013, this bill would amend Chapter 114 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE to define procedures for adjudication of claims under written contract with state agencies. First, there must be a “written contract stating the essential terms of the agreement for providing good or services to the state agency that is properly executed on behalf of the state agency,” and the amount in controversy in an action for breach of that contract, exclusive of interest, must exceed $250,000. This bill provides for the waiver of sovereign immunity of those claims, and provides a means for “adjudication” of same – the bringing of a civil suit and prosecution to final judgment . . .” and includes the bringing of an arbitration proceeding and prosecution to final resolution in accordance with any mandatory procedures established in the contract.” The bill limits damages to the balance due and owing, change orders and interest allowed by law. It excludes recovery of consequential damages and/or exemplary damages, and allows for recovery of attorney’s fees only if the contract so provides. H.B. 750, and its companion, S.B. 285. Introduced by Representative Hilderbran (R-Kerrville) on January 28, 2013, these bills would amend Title 1 of the Family Code to prohibit a ruling of a court, arbitrator, or administrative adjudicator from being based on a foreign law, if the application of that law would violate a right guaranteed by the Constitution. They would also void a marriage contract provision which specifies that a foreign law shall govern or that fo-

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rum shall be in a place where a foreign law would govern, if that foreign law would violate a constitutional right. This appears to be a version of the ever-popular-inTexas anti-Sharia bills. While it is at least limited to family law cases, it reflects a little education on the part of the business lobby that they shouldn’t be messing with things like this in the broader context: a specific section says neither bill applies to any corporation that enters into such a contract with a foreign law choice of law. To the extent either bill covers a real foreign law, federal supremacy will take care of that. H.B. 1307, and its companion, S.B. 567. Introduced by Representatives Geren (R-Tarrant) and Ritter (RJefferson) on February 14, 2013, Section 13.017 (at page 12 of this 113 page bill), this bill amends Section 5 of the TEXAS WATER CODE to permit the Office of Public Utility Counsel to appear or intervene in alternative dispute resolution as a party on behalf of residential consumers in a utility commission proceeding, or on behalf of small commercial consumers in any proceeding. This section also permits the Office of Public Utility Counsel to intervene in alternative dispute resolution that involves an action taken by an administrative agency in a proceeding in which the counselor is authorized to appear or in which the counselor determines a residential or small commercial consumer is in need of representation.

H.B. 1407. Introduced by Representative Smithee (R-Amarillo) on February 18, 2013, this bill amends Chapter 542 of the TEXAS INSURANCE CODE to allow a person filing a claim against a person insured for liability under an auto insurance policy to require the insurer to submit to binding arbitration. It is mandatory: “An insurer may not deliver, . . . or renew . . . a private passenger automobile insurance policy . . . unless the policy . . . includes a provision that requires the insurer to participate in binding arbitration . . .” The bill also establishes related procedures and provisions for such binding arbitration. Some of the more interesting features include the following:

Sec. 542.353. PROMPT SETTLEMENT OF THIRD-PARTY PROPERTY DAMAGE CLAIMS. (a) The commissioner by rule shall adopt minimum standards to ensure prompt and equitable settlement of a third-party property damage claim in circ*mstances in which: 1) the insured ’s liability for the property damage is reasonably clear; and 2) the amount of the claim is within the policy limits. Sec. 542.355.AARBITRATION OF CLAIMS.

H.B. 1329. Introduced by Representative Marquez (D-El Paso) on February 14, 2013, this bill amends Chapter 174 of the LOCAL GOVERNMENT CODE to require, upon request, an arbitration board in a proceeding involving a county public employer (i.e. county firefighters and police officers) to administer oaths and issue subpoenas and subpoenas duces tecum. It establishes related provisions for subpoenas and their effect, including making failure to appear a misdemeanor offense with a fine of $1,000 and/or confinement in county jail for up to 30 days.

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(a) A third-party property damage claimant may require that an insurer submit a dispute concerning the payment of, the amount of, or the denial of a thirdparty property damage claim to binding arbitration in accordance with the procedures established under this section. (b)AA third-party property damage claimant who elects binding arbitration under this section: 1) waives the right to bring against the insured or insurer an action, other than an action to enforce the arbitration award, with respect to the claim; and

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2) agrees to accept payment for the claim within the applicable policy limits.


(c)AThe commissioner by rule shall adopt a program for arbitration of third-party property damage claims. The rules must establish: 1) procedures for requesting and conducting an arbitration under this section; 2) procedures for selecting one or more arbitrators to conduct the arbitration;

This bill appears to have some momentum, as it was referred to the Business and Commerce Committee on February 13, 2013, and is set for its first public hearing on February 19, 2013. That is rather rapid.

3) the qualifications of arbitrators authorized to conduct arbitrations under this section; and 4) a procedure for payment of the costs of arbitration, including payment of arbitrators ’ fees, the amount of the fees, and which party or parties are liable for the payment of the fees. (d)AThe department shall maintain and publish a list of arbitrators qualified to conduct arbitrations under this section. (e)AExcept to the extent of any conflict with this section and the rules adopted under this section, Chapter 171, Civil Practice and Remedies Code [Texas General Arbitration Act], applies to an arbitration conducted under this section. Finally, we are aware that the Texas Department of Insurance (“TDI”) recently solicited comments on a "rule concept" regarding mandatory pre-dispute binding arbitration. TDI staff wants to be able to continue rejecting policy forms that have mandatory pre-dispute binding arbitration. TDI’s authority is not clear, so its Commissioner told the staff to get clarification. Based on what the staff learned, TDI determined that it needed legislative direction before making a decision. We've been in touch with a couple of insurance trade associations (Texas Association of Health Plans and Texas Association of Life and Health Insurers) that are fighting this effort, apparently by having legislation filed to prevent TDI from adopting such a rule or policy. I have not yet seen any such proposed legislation, but the deadline for introducing new bills is March 1, 2013. 6

S.B. 399. Introduced by Senator Hanco*ck (RDallas) on February 5, 2013, this bill appears to be a continuation of the effort to put into place an ombudsman program as a sub-set of alternative dispute resolution. The bill amends Chapter 160 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE to permit an employer to establish an ombudsman program, and establishes rules and procedures to which such a program must adhere.

H.B. 1358, and its companion, S.B. 843, introduced by Representative Todd Hunter (R-Corpus Christi), a long time supporter of ADR, the ADR Section and mediator groups, on February 5, 2013. These bills amend Chapter 843 of the TEXAS INSURANCE CODE to enable a pharmacist or pharmacy aggrieved by an audit outcome report to require the auditor to participate in mediation under Chapter 154, TEXAS CIVIL PRACTICE AND REMEDIES CODE. The mediation must be conducted by a person qualified as an impartial third party under Section 154.052 of the Code. This bill is lengthy, so I reproduce only the mediation provisions below: Sec. 843.515. MEDIATION. (a) A pharmacist or pharmacy aggrieved by an audit outcome report may require an auditor to participate in mediation under Chapter 154, Civil Practice and Remedies Code. (b) The pharmacist or pharmacy must elect mediation and notify the auditor not later than the 30th day after the date the pharmacist or pharmacy receives the audit outcome report. The mediation must be completed not later than the 90th day after the date the pharmacist or pharmacy receives the audit outcome report. (c) The mediation must be conducted by a person qualified as an impartial third party under Section 154.052, Civil Practice and Remedies Code.

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Sec. 843.516. REMEDIES NOT EXCLUSIVE. This section may not be construed to waive a remedy at law available to a pharmacist or pharmacy. Sec. 843.517. WAIVER PROHIBITED. The provisions of this subchapter may not be waived, voided, or nullified by contract. Sec. 843.518. LEGISLATIVE DECLARATION. It is the intent of the legislature that the requirements contained in this subchapter regarding audit of claims to providers who are pharmacists or pharmacies apply to all health maintenance organizations and pharmacy benefit managers unless otherwise prohibited by federal law.

H.B. 1408. Introduced by Representative Smithee (R-Amarillo) on February 18, 2013, this bill amends Chapter 2211 of the TEXAS INSURANCE CODE to allow the Fair Access to Insurance Requirements (FAIR) Plan Association to require mediation or moderated settlement conference as a prerequisite to an insured filing an action against the Association for denial of coverage or a dispute over the amount paid. Among the interesting provisions for alternative dispute resolution:



(a) If the association denies coverage for a claim in part or in full and the claimant disputes that determination, the claimant, must provide the association with [timely] notice that the claimant intends to bring an action against the association concerning the denial of the claim. (b) If a claimant provides [timely] notice of intent to bring an action under Subsection (a), the association may require the claimant, as a prerequisite to filing the action against the association, to submit the disSpring 2013, Vol. 22, No. 3

pute to alternative dispute resolution by mediation or moderated settlement conference, as provided by Chapter 154, Civil Practice and Remedies Code. (c) The association must request alternative dispute resolution of a dispute described by Subsection (b) not later than the 60th day after the date the association receives from the claimant notice of intent to bring an action. (d) Alternative dispute resolution under this section must be completed not later than the 60th day after the date a request for alternative dispute resolution is made under Subsection (c). The 60-day period described by this subsection may be extended by the commissioner by rule in accordance with Section 2211.180 or by the association and a claimant by mutual consent. (e) If the claimant is not satisfied after completion of alternative dispute resolution, … the claimant may bring an action against the association in a district court in the county in which the loss that is the subject of the coverage denial occurred. (f) If a claimant brings an action against the association concerning a denial of coverage, the court shall abate the action until the notice of intent to bring an action has been provided and, if requested by the association, the dispute has been submitted to alternative dispute resolution, in accordance with this section. (g)AA moderated settlement conference under this section may be conducted by a panel consisting of one or more impartial third parties. (h) If the association requests mediation under this section, the claimant and the association are responsible in equal shares for paying any costs incurred or charged in connection with the mediation. (i) If the association requests mediation under this section, and the claimant and the association are unable to agree on a mediator, the mediator is the mediator agreed to …. If the claimant and the association are unable to agree on a mediator, the commissioner shall select a mediator from a roster of qualified mediators maintained by the department. The department may:

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1. require mediators to register with the department as a condition of being placed on the roster; and 2. charge a reasonable registration fee to defray the cost incurred by the department in maintaining the roster and the commissioner in selecting a mediator under this section. (j) The commissioner shall establish rules to implement this section, including provisions for expediting alternative dispute resolution, facilitating the ability of a claimant to appear with or without counsel, establishing qualifications necessary for mediators to be placed on the roster maintained by the department under Subsection (i), and providing that formal rules of evidence shall not apply to the proceedings.


* Engaged in all aspects of Alternative Dispute Resolution, Bill Lemons is a full-time Arbitrator and Mediator. He is on the Employment Law, Commercial Dispute, Banking and Financial Services, Construction and Large Complex Case panels of the American Arbitration Association; a Fellow of the College of Commercial Arbitrators; a Distinguished Neutral of CPR (International Institute for Conflict Prevention and Resolution); and a Panelist for the American Health Lawyers Association ADR Service. Internationally, he is a Panelist for the International Centre for Dispute Resolution (AAA), and is a Member of the Chartered Institute of Arbitrators in London. He served as Chair of the ADR Section, and currently is national President of the Association of AttorneyMediators. A graduate of the University of Houston Law Center. Bill is a former Shareholder with what is now COX SMITH MATTHEWS in San Antonio, and before that was in-house labor counsel for Braniff Airways, Inc. in Dallas, Texas.

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A REPORT TO THE SUPREME COURT ADVISORY COMMITTEE FROM THE TEXAS ACCESS TO JUSTICE COMMISSION ON THE COURT’S UNIFORM FORMS TASK FORCE [April 6, 2012] I. INTRODUCTION The Supreme Court of Texas established the Texas Access to Justice Commission (“Commission”) in 2001 to serve as the statewide umbrella organization for all efforts to expand access to justice in civil legal matters for the poor. It is the role of the Commission to assess national and statewide trends on access to justice issues facing the poor, and to develop initiatives that increase access and reduce barriers to the justice system. The Commission is comprised of ten appointees of the Court, seven appointees of the State Bar of Texas, and three ex-officio public appointees. The Commission is fortunate to have a partner in the State Bar, with its strong commitment to increasing access to justice and to assisting pro se litigants. A main component of the Bar’s mission is to “assure all citizens equal access to justice.” Its current Strategic Plan proposes to accomplish this goal in part by working “in collaboration with key partners to increase the availability and utilization of effective high quality pro se information, education, and support materials.” Over the years, in recognition that it is always best to have a lawyer, the Commission has worked to increase the number of attorneys available to help the poor by augmenting funding to legal aid programs and by enlarging pro bono resources to serve the poor. The Commission, with the leadership of Spring 2013, Vol. 22, No. 3

the Supreme Court, has been able to obtain much needed legislative funds for civil legal aid providers and has helped to increase statewide pro bono by working with firms, corporate counsel, and various sections and associations of the State Bar. Despite these successful and continued efforts, the growth in the number of poor with civil legal assistance matters has far outpaced our ability to fund legal aid or recruit lawyers to assist on a pro bono basis. Without access to an attorney, the poor have no choice but to represent themselves. The phenomenon of increasing numbers of pro se litigants is not new, nor is it unique to Texas. Courts across the nation have experienced the same situation and have grappled with how to best go about addressing it. There have been countless conferences and journal articles within the judiciary, legal aid, and access to justice communities on this topic, including here in Texas. In April 2010, a statewide Forum on SelfRepresented Litigants was held in Dallas to discuss the issue of the burgeoning population of unrepresented litigants who cannot afford representation and who are unable to obtain representation through a legal service provider. A broad spectrum of stakeholders were invited to attend, including the private bar, the judiciary, clerks, law librarians, and legal service providers. National leaders were invited to discuss various best practices and solutions that are widely accepted throughout the country. The Forum

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concluded with a consensus to pursue development of these best practices, including standardized forms. Two entities were created in the wake of the Forum. The Texas Access to Justice Commission created its Self-Represented Litigants Committee in May 2010 to research and develop strategies to improve selfrepresentation for the poor. The Supreme Court of Texas created the Uniform Forms Task Force in March 2011 to develop standardized forms. The Court made clear in its order creating the Uniform Forms Task Force that it was “concerned about the accessibility of the court system to Texans who are unable to afford representation,” and believes that “developing pleadings and forms for statewide use would increase access to justice and decrease the strain on courts posed by pro se litigants.” Accordingly, it asked the Task Force to “develop proposed models of uniform pleading and order forms to be evaluated and approved by the Court for statewide use.” To ensure broad representation of varying interests, the Court chose a diverse group of people as members of the Task Force, including two judges who regularly preside over family law matters, a district clerk, a county attorney, a court administrator, a local bar director, a legal aid family law lawyer, a law librarian of a large self-help center, a technology person, and three private board-certified family law lawyers. Members agreed that the Task Force was to develop easy-to-use yet legally sound forms for noncomplex, uncontested matters that were targeted for use by the poor. In deciding where to start, the Task Force reviewed data from various sources on the legal needs of the poor and concluded that family law, specifically divorce, was by far the greatest area of need. Based on this information, the Task Force developed a set of instructions and forms for an uncontested divorce with no children and no real property. The leadership of the State Bar Family Law Section was asked for substantive input and criticisms of the forms in July 2012 and repeatedly asked thereafter. None was given. The set of forms was sent to the Court for approval on January 11, 2012. To this day, the alleged “72 flaws” have never been shared with the Task Force or the Commission. 10

There are no legitimate issues about whether people will represent themselves and use forms. Over 4 out of 5 people who qualify for legal aid are unable to get help from an attorney. People purchase family law forms from Craigslist, Google searches, office supply stores, etc. When one Googles a family lawyer’s name, often links to commercial forms appear in the search results. The real question is whether Court-approved standardized forms will improve access to justice and lessen the administrative burdens on the court system. Thirty-seven states have found it helps without damaging private practitioners. II. THE CURRENT SITUATION IN TEXAS A. More Poor, Fewer Lawyers to Help There are over six million Texans who qualify for legal aid, yet legal aid and pro bono programs are only able to help at most twenty percent of the qualified people who seek it. Significant decreases in funding to legal aid programs from reduced Interest on Lawyer Trust Accounts (“IOLTA”) revenue and federal funding cuts, combined with one of the highest poverty rates in the nation at eighteen percent, means that that there will be fewer legal aid lawyers to help the growing numbers of poor who need assistance. B. Substantial Number of Pro Se Litigants Recent data from the Office of Court Administration (“OCA”) has made clear what has been suspected anecdotally in Texas for years—people are representing themselves. OCA statistics show that 21.6% of all family law filings in Texas are filed by a pro se petitioner. Based on information from counties who collect statistics on the number of pro se filings for specific case types, we believe that the numbers are much higher for divorce. Specifically, Bell County reports a 52% pro se filing rate for divorce in 2011, up from 40% in 2010. Lubbock County states that 44% of divorces filed over the past two years involved at least one pro se party. In Travis County, 78% of divorces without children and 56% of divorces involving children were filed pro se.

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Statistics from the Office of the Attorney General show that 461,147 parents represented themselves in Title IV-D family law cases during 2011.18 Title IVD cases involve child custody, visitation, child support, and paternity issues. Approximately 50% of these cases involve the establishment of original orders, while the remainder involves modification or enforcement of those orders. C. The Great Majority of Pro Se by Necessity Not Choice Although OCA does not track the income levels of pro se filers in district and county courts, we do have information on user income levels of TexasLawHelp, the largest online self-help source for free legal information and free forms in Texas. User income levels are extremely low. When viewing income levels with household size, approximately 81% of users qualify for food stamps. Even excluding household size, users are clearly poor, with 24% earning less than $9,570 annually and 62% earning less than $29,000 annually. Because all information and forms on the website are available at no cost, there is no incentive for users to lie about their income or household size. The Office of Attorney General reports that the great majority of unrepresented parents in Title IV-D cases are very low-income. Of the 1.3 million parents involved in currently open Title IV-D cases, approximately 750,000 are current or recent recipients of TANF (Temporary Aid for Needy Families) or Medicaid benefits. D. Increased Pro Bono Will Not Meet Need Legal aid and pro bono programs closed over 120,000 cases last year. Of those, the three large legal aid programs and the three largest pro bono programs closed 17,531 cases through the generosity of 7,022 pro bono attorneys. There are over 90,000 attorneys licensed by the State Bar of Texas. It has been suggested that increasing pro bono is the solution to the current situation. While laudable, the fact is that even if every lawyer were required to represent at least one pro bono client, we would still only be able to serve less than 40% of the poor who seek help from legal aid. A Spring 2013, Vol. 22, No. 3

major additional barrier is that we do not currently have the infrastructure in place to coordinate urban pro bono lawyers with rural clients. Forms are not an alternative to pro bono. Good Court-approved forms make it easier, not harder, to get more lawyers to handle family law cases on a pro bono basis. Pro bono attorneys who do not regularly practice poverty law are more willing to handle a pro bono matter when they have good forms to use to resolve it. E. Improving Self-Representation for Poor is Vital to Increase Access to Courts The stark reality is that there will never be enough legal aid and pro bono lawyers to help those who need it, and pro se litigants are here to stay. While we must continue to strive towards the goal of providing attorneys to the poor, improving selfrepresentation is one of the few avenues available to increase access to justice for the poor. How can we realistically do so? III. COURT-APPROVED FORMS: A FUNDAMENTAL NECESSITY A. Use of Forms Across the Nation: Only Two States Do Not Have Court-Approved Forms Many states have explored ways to improve selfrepresentation and have started with standardized forms. Forms are not a radical or even new idea. They are simply a fundamental necessity without which a pro se litigant has little hope of redress. Research shows that 48 states have Court-approved family law forms and one state (Alabama) has forms approved by their state bar. Family law forms are the most widely available, with 37 states having divorce forms and 30 states having divorce with real property forms. States have not shied away from dealing with more sensitive child custody and support issues, with 31 states having divorce with children forms, 33 states having child custody forms, and 39 states having child support forms. Additionally, 37 states require that their courts accept the standardized form when a

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pro se litigant chooses to use it. No state attempts to restrict use of the forms to low-income litigants.

B. Forms Effective at Increasing Access to Court with No Harm to Litigants or Lawyer Incomes Forms are the most basic and common tool on the continuum of legal assistance used by the many states faced with growing numbers of pro se litigants. States affirm that forms are effective at increasing access to the courts for the poor while not causing harm to the litigants or the livelihood of attorneys. C. Forms Effective at Improving Judicial Efficiency and Economy States also report that forms improve judicial efficiency and economy by having a better prepared litigant with accurate forms that comport with state law. Judges report that they spend less time reviewing the form for legal accuracy. Clerks and courtroom personnel are able to process pro se litigants and pro se cases more quickly and with less frustration and time.

reveals multiple sources for forms, such as on websites like Craigslist and Google, including those with promises of assistance by attorneys who are no longer licensed to practice by the State Bar of Texas. E. Available Forms Often Inadequate Unfortunately, the forms currently available are often inadequate for use by pro se litigants. Many forms do not comport with Texas law. Others are incorrect or outdated. Both cause litigants to arrive at the courthouse with improper pleadings that must be redone, and require judges to review the form itself for accuracy. Still others are simply too complex for use by the average pro se litigant. While no one would deny that the Texas Family Law Practice Manual has as accurate and complete a set of forms as one could need at no cost to those who have access to it through a local law library, it is highly unlikely that a pro se litigant could navigate the six volume set to determine which forms to use, much less understand the technical legal language in which the forms are written or the daunting 123 page Final Decree of Divorce form. F. Available Forms Not Accepted by Some Courts

D. Use of Forms in Texas: Forms Already Exist In Texas, the issue is not whether or not to have forms. Forms already exist and have for years. Even the Family Law Section sells do-it-yourself forms. Its Texas Family Law Practice Manual has almost every form one would need. The manual is available for sale to anyone who wishes to purchase it for $645 plus tax.31 These forms are also available for free in law libraries across the state. Additionally, the Family Law Section’s website provides a link to LawGuru, where forms for a variety of situations, including divorce and complex matters such as premarital agreements, can be purchased at a lower cost than the Texas Family Law Practice Manual. The Texas Young Lawyer’s Association Pro Se Handbook has forms and is available on the State Bar of Texas website at no cost. Forms are available for sale at retail stores like Office Depot or by vendors like LegalZoom. A quick search of the internet 12

The situation is complicated by the fact that although there are some adequate forms available though TexasLawHelp.org at no cost, not all Texas courts will accept them. Some courts prohibit the use of pleadings with fill-in-the blanks or check-boxes, or otherwise make it difficult for pro se litigants to proceed in court. G. Court-Approved Protective Order Forms Have Existed Since 2005 with Success In 2005, the Supreme Court of Texas approved a Protective Order Kit so that pro se litigants could obtain a protective order against an abusive partner. Since these forms were approved for use, they have benefitted countless victims of domestic violence. They have helped many people navigate the court system in the midst of a serious situation, yet are simple, accessible, effective, and enforceable. The kit has also had the added benefit of increasing the

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number of pro bono attorneys willing to handle domestic violence cases. There was no disagreement over these forms, even though the circ*mstances were similar to those today. Everyone agreed that it was better for a victim of domestic violence to have an attorney. There were not enough legal aid and pro bono attorneys to meet the need, especially in rural areas. Barriers to relief existed as they do now, in that some courts would not allow women to use other available forms to pursue protective orders on their own, and some district and county attorney offices would not pursue protective orders. However, protective orders are typically handled by local legal aid attorneys and county or district attorney offices rather than the private bar, which could account for the lack of controversy over this kit. IV. WHY COURT-APPROVED FORMS ARE NEEDED A. Benefits to the Public 1. Provision of Means to Comply with Legislative Requirements In Texas, we require the public to resolve certain legal matters, such as divorce, in court. For the poor who cannot afford an attorney, it is imperative that the Court, as the entity entrusted with ensuring access to justice, provides a sound means for them to comply with this requirement. Failing to do so effectively bars the poor from the judicial system, a result that is incompatible with the notion of justice for all upon which our country was founded. Some have argued that access to justice embraces more than access to the courts and can only be ensured by access to a lawyer, even if that lawyer is only able to provide advice. We agree that access to justice is a broad concept and that it is always better to have a lawyer, yet there can be no access to justice without access to the courts. Access to the courts starts with access to forms. Advice from a lawyer is unquestionably helpful, if one can obtain it, but advice cannot be filed in court. Only a form can be filed in court. No case can be filed without one. No case can be completed without one. Spring 2013, Vol. 22, No. 3

2. Provision of Safe Harbor Although Rule 7 of the Texas Rules of Civil Procedure makes it clear that a party is allowed to represent himself35, the unrepresented poor face many hurdles in getting heard in court. Current practices in various counties and courts put unnecessary constraints on pro se litigants, such as refusing to accept fill-in-the blank forms or requiring pro se litigants to retype any pre-printed form. As with the 2005 Protective Order kit and its subsequent revisions, courts would be required to accept forms approved by the Supreme Court when presented by a litigant, thus providing a safe harbor against such barriers to access by the poor. Additionally, the Supreme Court imprimatur on forms will give the poor confidence in the legal sufficiency of the forms and help abate the predatory form sale and advice practices that are currently occurring in Texas. A review of Craigslist ads during February, 2012 revealed that there are paralegals, “notarios,” and lawyers no longer licensed to practice law offering their services to help people with forms or selling forms that are available at no cost online. Ironically, during the time that this paragraph has been written, we were notified of two separate people attempting to file a divorce in the same county who had been sold outdated forms from two separate sources that were once available at no cost online. We have every reason to believe that Courtapproved forms will increase the number of pro bono attorneys who are willing to handle a divorce case. We have anecdotal evidence from attorneys who state that they would not have handled a protective order case without the Court-approved Protective Order kit forms as well as reports from judges who have had pro bono lawyers using the forms in their courts. National research supports this conclusion, in that states report an increase in pro bono lawyers who use the forms, as well as lawyers who use the forms for their paying clients. 3. Efficient Use of Available Attorney Resources The three largest legal aid programs are required to conduct a needs assessment study to determine how

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to best allocate their resources amongst the various needs of the poor. Based on the results of the study, they develop program priorities in terms of who is helped before others. In family law, the legal aid program priority is victims of domestic violence. At a time when it is clear that there are not enough legal aid attorneys to meet the needs of the poor, it is important to look at the most efficacious use of available pro bono attorney resources. While we recognize that Court-approved forms make it easier to recruit pro bono attorneys to handle a divorce, we must also state that as matter of public policy, it does not make sense to use scarce pro bono attorney resources to handle simple, uncontested divorce matters. It makes more sense to improve pro se representation by the poor by providing easy-to-use, legally sound Court-approved forms and reserve limited pro bono attorney resources for the more complex and contested matters so that they can bring their considerable knowledge of the law to bear in a situation that no poor pro se litigant could handle. B. Benefits to Users of the Court-Approved Forms The Texas Family Law Foundation (“TFLF”), the lobbying arm of the State Bar of Texas Family Law Section, states that Court-approved forms are a trap for the unwary and will ultimately harm the public. This argument ignores our current use of a plethora of commercial forms in Texas and the harm that comes from failing to provide simple, sound forms. 1. Good Forms Will Clearly Improve the Status Quo TFLF states that Court-approved forms will cause more harm than good. It is true that inaccurate or otherwise bad forms can cause harm to those who use them. This happens on a regular basis with the forms currently available in Texas. It is a fundamental reason that good, easy-to-use and legally sound Court-approved forms are needed.


2. Most People Use Forms Correctly TFLF further suggests that the quality of the form ultimately does not matter because people will either intentionally or inadvertently use the forms incorrectly to their disadvantage. Certainly, we all hear the horror stories—both by those who have been harmed by using forms incorrectly and by those who have been harmed by attorneys who have mishandled their case. We hear the anecdotal evidence of the case about the woman who lost her rights to her husband’s retirement or the man who spent thousands of dollars trying to correct mistakes made by doing his own divorce. We also hear the anecdotal evidence about the woman who paid thousands of dollars to an attorney who failed to get her share of the equity in the house or who took no action on her case at all. We hear these stories because they are not the norm. They are the outliers that make great stories for the press and for our friends at co*cktail parties but are not representative of the majority of pro se litigants who use legally-sound forms correctly, or those who have good experiences with their family law attorney. 3. Court-Approved Forms Minimize Risk of Harm Those who use forms incorrectly often do so because the forms lack instructions for completion, or they are so poorly written that it would be hard for anyone to fill them out. Instead of banning Courtapproved forms, which would effectively bar thousands of poor from resolving their legal matter, it makes more sense to create good forms with detailed instructions on accurate use to minimize the risk of harm. Court-approved forms would be standardized, making it easier for a judge to catch mistakes. Clearly, the provision of Court-approved forms will not add to the level of harm that is presently happening from forms currently available for use. While it is true that more people are likely to use Courtapproved forms than others, better forms will improve the situation, not worsen it.

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4. Proposed Forms Narrowly Drawn to Minimize Risk of Harm The forms developed by the Uniform Forms Task Force have been narrowly tailored to apply to extremely limited situations. The express purpose of creating forms tailored to such narrow situations is to create as little risk of harm as possible. The forms and instructions for the Divorce with No Minor Children and No Real Property clearly state the appropriate use of the forms and provide warnings against using them for other situations. They also admonish people to get a lawyer, if they can, and provide statewide hotline numbers for legal advice referrals to legal representation.

the party may be required to issue citation by publication at significant cost. Ultimately, what may have been able to be handled through the provision of Court-approved forms, may no longer be appropriate for such relief at a later date. Aside from the many complicating factors that can occur from simply living life, failing to provide Court-approved forms continues the status quo of harm discussed herein where people are accessing forms from a wide variety of inferior sources, are being taken advantage of by unscrupulous people purporting to help, and are even prevented from using forms in certain courts C. Benefits to Judicial System

5. Lack of Court-Approved Forms Harms the Poor A lack of Court-approved forms causes great harm to the growing numbers of poor who have no access to an attorney. The inability of the poor to resolve their legal matters in a timely fashion can cause significant problems in later years. It can also be costly to the litigants and burdensome on the courts. With respect to divorce, even when the divorce is amicable and uncontested, it is much more complicated for a couple to get divorced ten years after they have separated and gone their own ways, than it is for them to get divorced when needed. They may have acquired assets that are presumed to be community property even though they have not lived together for years. More commonly, they may have had children with another partner. These children are presumed to be children of the marriage because they were born during the marriage. A divorce with children born during the marriage but not of the marriage involves at least two respondents, or more, depending on the number of fathers of children born during the marriage. There may need to be additional legal action to determine paternity, which is burdensome to the court and costly to the parties. Another common issue is the inability of one spouse to locate the other spouse. Instead of simple service, the cost of which is covered under an Affidavit of Inability to Pay Costs for those who qualify for it, Spring 2013, Vol. 22, No. 3

The poor and pro se litigants will always be with us and their numbers are growing. In Texas, 21.6% of family law filings are pro se. Based on data from various counties, we believe that more than 40% of divorce filings are pro se. The overriding benefit of Court-approved forms to the court system, as indicated by national research, is increased judicial economy and efficiency. 1. For Judges Currently, judges are presented with forms from multiple sources with varying degrees of quality. Court-approved forms provide judges with a reliable, standard form that is legally sound and comports with Texas law. Judges become familiar with the forms and no longer have to spend time reviewing the forms to ensure that they meet Texas law and can simply focus on reviewing the documents for completeness. Judges also report that pro se litigants are better prepared when they come to court, which reduces the amount of time that the judge spends on the bench handling their case. 2. For Clerks and Courtroom Personnel Anecdotal evidence suggests that clerks and courtroom personnel presently spend three times longer servicing pro se litigants than those familiar with the legal process. They are often the first people that interface with a pro se litigant and deal with the multiple questions that pro se litigants have about resolving their case.

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Court-approved forms reduce time spent by court personnel with pro se litigants in a variety of ways. They have a place to refer pro se litigants for good, accurate forms, reducing the stress from upset litigants frustrated with a system not set up for public use. Pro se litigants tend to be better informed on how to proceed, with the result that they reduce the number of trips to the courthouse with incorrect forms. Court personnel also become familiar with Court-approved forms and know where to look for key information in the pleadings, such as is needed for service of process. 3. For the Public Court-approved forms improve the public’s perception that the judicial system is truly open to all. Public faith in the accessibility of our judicial system helps in the acceptance of unfavorable rulings as fair, rather than concluding that the system is corrupt. D. Benefit to Bar The TFLF has suggested that Court-approved forms will harm the bar by changing the practice of law as lawyers currently know it. They worry that allowing forms for uncontested matters will quickly lead to forms for contested matters. The TFLF is also concerned that forms will negatively impact the ability of an attorney to earn a living, especially the “bread and butter” lawyers who rely on uncontested divorces to maintain their practices. Many of the TFLF concerns about statewide forms were shared by attorneys in the numerous states that have them. No state has reported that these concerns have materialized. In fact, many states have seen lawyers benefit by assisting pro se litigants on a limited scope basis with completion of the forms, or by providing advice on their particular situation. Typically, these clients represent new business to attorneys because they are not those who could have afforded the lawyer to handle their entire case. Aside from a potential financial benefit to lawyers, states report that Court-approved forms makes it easier for pro bono attorneys to handle a case. Pro bono 16

attorneys may be unfamiliar with practice areas that often affect the poor and are more willing to help when they are provided with good forms.

V. COLLATERAL ISSUES RAISED BY THE STATE BAR OF TEXAS FAMILY LAW SECTION AND THE STATE BAR OF TEXAS SOLUTIONS 2012 TASK FORCE A. Authority of Supreme Court to Promulgate Forms The TFLF has raised the question whether the Court has the authority to promulgate forms for use by pro se litigants in court. The Commission has prepared a brief to address this issue, which has been filed with the Court. The brief concludes that the Court clearly has the authority to promulgate pleading forms under the Texas Constitution, statutory law, and common law. Of note in the brief is the review of other forms created by the Court. Specifically, in 2009, the Court promulgated a form petition for tenants to use when filing suit to require a landlord to repair a condition materially affecting the health or safety of a tenant. The form petition was promulgated along with an amendment to Texas Rule of Civil Procedure 737. While the Legislature had instructed the Court to promulgate the amendment to Rule 737, it had not instructed the Court to promulgate the accompanying form. The Court has also promulgated numerous forms for use in the legislatively created “judicial bypass” procedure by which a court may authorize a pregnant minor to obtain an abortion absent parental notification. … Unlike the protective order and landlordtenant forms, the judicial-bypass forms were promulgated at the Texas Legislature’s direction. In doing so, the Legislature implicitly recognized the Court’s constitutional authority to promulgate such forms. The Texas Rules of Civil Procedure contain numerous forms that litigants can use in judicial processes. Texas Rule of Civil Procedure 592b contains a template form that a litigant may use in submitting an attachment bond.50 Rule 736(2) sets forth a form

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that a litigant may use to give notice of a suit to foreclose on certain liens.51 Rule 750 contains a form for litigants to use in filing an appeal bond in a forcible entry and detainer case.52 And Rule 117a sets forth a fill-in-the-blank form for citing by publication or personal service in suits for delinquent ad valorem taxes. B. Forms Maintenance and Cost The TFLF is concerned that a new bureaucracy will need to be created, at significant cost, to maintain any forms created. This fear does not comport with the seven years of experience we have with the Protective Order Kit. That Kit is maintained by the Court’s Protective Order Task Force, a small group of volunteers who drafted the original forms and who regularly update the Kit as needed. Likewise, the Uniform Forms Task Force, a standing group that meets monthly, will be responsible for the maintenance of the forms it creates. The TFLF suggests that maintenance of Courtapproved forms will be similar to its experience with the six-volume Family Law Practice Manual in which it expended $240,000 in print and travel costs to revise. However, to date, the Uniform Forms Task Force has produced the entire instructions and forms for an uncontested divorce with no children and no real property at a cost of less than $10,000. To compare the two sets of forms is baseless. There is a vast difference in the complexity of these two sets of forms. For example, there are only 29 pages to the entire Uncontested Divorce with No Children and No Real Property kit including instructions, whereas the Family Law Practice Manual’s divorce decree alone is 123 pages. C. Means-Testing Use of Forms The TFLF has suggested that the forms be restricted for use by the poor. While the forms have been designed for use by the poor, the Commission does not recommend it.

income people. Such an attempted restriction would make Texas the only state to do so. Texans have a right to self-representation under Texas Rule of Civil Procedure 7. What legitimate basis could there be for depriving citizens of the right to use the forms? 2. Several Problems Associated with MeansTesting Court-Approved Forms If the forms were to be means-tested, who would conduct the means-testing? A human means-test would lead to creating the exact bureaucracy and expense that the TFLF fears would happen with form maintenance. It has been suggested that the forms be restricted only to those who file an affidavit of inability to pay costs at the same time they file the forms. There are millions who qualify for legal aid who may be able to afford court costs but not the far greater cost of hiring a lawyer. There are multiple other problems associated with this approach. Currently, there are several large counties in Texas that automatically contest every pauper’s oath filed. The likelihood of default for a low-income pro se litigant is extremely high, with the unintended consequence that the poor, for whom these forms were designed, would be barred from using them. Additionally, Texas Rule of Civil Procedure 145 provides a safeguard to the poor’s ability to access the court system while being mindful of each county’s need to fund their courts. It does not make sense to combine Rule 145 with Court-approved forms. These forms are about increased access to, and efficient administration of, the justice system, not about generating additional revenue. The TFLF has stated that their objection to forms is not financial, so it is unclear what purpose they think a Court-imposed restriction on their use would serve in the administration of justice. Decency calls for a judicial system where the poor can access the courts. The small minority of people who could afford a lawyer but choose not to retain one, as is their right, can use forms now, choosing from the array of forms that are widely available.

1. No Other State Restricts Form Use to Poor Of the 48 states plus the District of Columbia, none attempt to restrict their statewide forms to lowSpring 2013, Vol. 22, No. 3

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3. No Uniform Definition of Poor Across Counties and Courts Additionally, there is no uniform definition of poor throughout the 254 counties in Texas. A person may qualify as poor in one county but not in another. In fact, there are multiple definitions of poor operating within our state and nation. To qualify for legal aid at a Texas Access to Justice Foundation (“TAJF”) funded organization, a person’s income must be at or below 125% of the federal poverty guideline. To qualify for food stamps, or for legal aid at a Legal Service Corporation (“LSC”) funded provider, a person’s income must be at or below 200% of the federal poverty guideline. However, both TAJF and LSC allow victims of crime to have income levels of up to 187.5% of the federal poverty guideline. To qualify for public housing, the project-based Section 8 program, and the Section 8 voucher program, a person’s income may not exceed 80% of the median income for the area in which he lives, as determined by the United States Department of Housing and Urban Development. Statewide housing guidelines are approximately 300% of the federal poverty guideline for smaller families and less than 200% of the federal poverty guidelines for larger families. However, each county has specific guidelines that may be more or less than the statewide guidelines. 4. Due Process and Other Public Policy Concerns Finally, there may be due process concerns with the Court promulgating a form and restricting its use to only one category of people. Additionally, it is unclear how restricting use of the forms to the poor is rationally related to a legitimate government interest. Protecting the earning capacity of the private bar would not qualify as a legitimate government interest. However, it is in everyone’s interest to ensure access to the judicial system. D. Allegation of Mission Drift The TFLF is purportedly concerned that the Commission has strayed from its mission to increase access to justice for low-income people by pursuing efforts to improve self-representation that may have a consequence of benefitting those who could afford 18

a lawyer but choose to represent themselves. National leaders in access to justice matters and the Commission respectfully disagree. Those who can afford a lawyer, but unwisely choose not to, have ready access to forms now, including those sold on line by the Family Law Section. 1. Majority of ATJ Commissions Work to Improve Self-Representation Developing strategies to improve self-representation falls squarely within the mission of anyone dedicated to seeking justice for the poor. Three-quarters of the Access to Justice Commissions across the nation, with the same mission of increasing legal services to the poor, are actively developing initiatives to improve self-representation, regardless of income level. No other Access to Justice Commission has been challenged by their bar, or any other outside entity, for working on these efforts. . Access to Justice Commissions are working on pro se litigant issues without regard to income because, as previously discussed, the vast majority of pro se litigants are poor. In Texas, we know that 81% of TexasLawHelp users qualify for food stamps. TexasLawHelp is the primary online resource for pro se litigants in Texas to access free legal information and free forms. The Commission simply must pursue all efforts that lead to increasing access to justice. The small number of people who do not meet legal aid income levels and choose not to hire a lawyer can do so under the status quo. None of the 48 states with officially approved forms has found that such forms adversely affect the business of private practitioners. 2. The State Bar of Texas Agrees with the ATJ Commission The State Bar of Texas has a strong commitment to increasing access to justice and to assisting pro se litigants, as indicated in its current Strategic Plan, which proposes to help pro se litigants by working “in collaboration with key partners to increase the availability and utilization of effective high quality pro se information, education, and support materials.” This commitment is visible in the report of

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State Bar’s Solutions 2012 Task Force (“Solutions 2012”) which identified many of the same pro se solutions currently being pursued by the Commission’s Self-Represented Litigants Committee and its six subcommittees. By identifying these same solutions, the State Bar affirms the Commission’s work to improve selfrepresentation and agrees that this work falls within the Commission’s mission. Conversely, it appears that the State Bar disagrees with the TFLF’s assertion that these solutions will not work. 3. Solutions 2012 Suggestions Regarding SelfRepresented Litigants The Commission’s Self-Represented Litigant Committee and its six subcommittees are currently working on the following areas that were identified by the Commission in 2010 and were recommended by Solutions 2012. As is clear from this list, forms are fundamental basis for many of these efforts. Solutions 2012 recommends expanding assisted pro se clinics that use volunteer attorneys to help lowincome people with their uncontested legal matters. Most pro bono programs and legal aid providers have assisted pro se clinics. Almost all are assisted pro se divorce clinics. Forms are a basic need for these clinics because the litigants cannot file their case without one. Solutions 2012 also suggests using online chat or video conferencing to assist pro se individuals in need. The Commission’s Assisted Pro Se Subcommittee has been working to develop best practices for providing assisted pro se help, and acts as a resource to counties and legal aid programs wishing to develop, expand, or improve their current assisted pro se services. The Commission’s Technology Committee is also looking at ways to connect rural clients with urban pro bono attorneys via video conferencing or other less expensive technology. Additionally, the Commission educates the public and the legal community about other available resources, such as the online chat program offered on the TexasLawHelp website. Solutions 2012 suggests developing judicial and court personnel education regarding pro se litigants, Spring 2013, Vol. 22, No. 3

including discussing the difference between advice and information. The Commission has already developed this training and has given it several times to resounding review. In fact, the presentation is in such demand that Commission has a wait list for those wishing to receive the training. Solutions 2012 advises establishing self-help centers throughout the state for indigent unrepresented litigants. Whether the self-help center is a kiosk, a court -based full-service center, or a mobile self-help center, access to information and forms are typically the base level services provided. The Commission’s Self -Help Center Subcommittee has collected information on the various models of self-help centers across Texas and the nation, and serves as a resource to counties who seek its help in establishing self-help centers within their own communities. … Solutions 2012 proposes using volunteer lawyers or self-help center lawyers to staff a mobile self-help center on visits to communities within a specific county. The example provided is the Mobile SelfHelp Legal Access Center from Ventura County Superior Court, which is equipped with computers, video stations, books, pamphlets, self-help instruction manuals and packets of Court-approved forms. The Mobile Center also maintains a list of lawyers who are willing to provide legal services on a task-bytask basis, also known as a “limited scope” or “unbundled” basis. In recognition that it is always best to have the help of an attorney, the Commission’s Limited Scope Representation Subcommittee has been working on several limited scope representation presentations. The Commission is interested in limited scope representation because it increases access to justice for low-income people by allowing those who cannot afford full representation to get the help they need from a lawyer in more affordable way. While the poor may not be able to afford a retainer fee, they might be able to pay an attorney for a discrete task. The Subcommittee has found that there is much confusion and fear around limited scope representation. To address these issues, the Subcommittee has been working on presentations to educate lawyers, judges, and the public about its benefits and drawbacks, as well as when it is appropriate or inappropriate for use.

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Solutions 2012 suggests developing a rule to let judges know that it is not a violation of the Code of Judicial Conduct to assist pro se litigants through the court system. The Commission’s Rules Subcommittee discussed whether revisions were needed to the current provision regarding self-represented litigants in the Code of Judicial Conduct but determined that a rule was not needed at this time, preferring to rely on education. Solutions 2012 also suggests offering reduced liability coverage to attorneys who handle decrees for uncontested cases, stating that it might require a legislative or other disciplinary rule. While the Commission did not investigate this exact issue, it did investigate the possibility of providing malpractice coverage for attorneys who were willing to handle matters on a limited scope basis through the current State Bar program that pays a portion of the malpractice coverage for approved legal service providers in Texas. It learned that discounted malpractice coverage cannot be provided to an individual attorney unless the attorney is associated with a 501(c)(3) organization. In essence, the attorney must volunteer, or take cases on a reduced-fee basis, through a current legal service provider. The result is basically the same program that is in place through the State Bar of Texas. The Commission looks forward to partnering with the State Bar on their proposed solutions. VI. CONCLUSION It is clear that there will never be enough lawyers to help the growing number of poor who need legal assistance. The poor are already representing themselves in court, and there is no reason to believe that they will stop. They have no choice.


The greatest civil legal need of the unrepresented poor is with family law matters. It may be their only interaction with the court system. Forms are a requirement for accessing the court system. Without forms, the poor who cannot get legal aid have no access. Court-approved forms are broadly accepted nationwide as a tool to increase access to justice and judicial efficiency and economy. Almost all states provide family law forms, and a significant majority of states provide divorce forms. Finally, it is important that the Court promulgate forms so that the poor have confidence that the forms are legally sound and will be accepted throughout the State. It is the role of the Court to ensure access to justice, not vendors on Craigslist or Legal Zoom. The tens of thousands of people forced by poverty to try to use their right of self-representation desperately need improved access to justice. States have uniform forms because they improve this situation. We support and work for increased funding and increased pro bono efforts by lawyers. No one with knowledge of the facts can legitimately claim that these efforts can deal with multitudes who cannot obtain legal assistance. The continuum of legal assistance is based on the concept that legal matters present varying degrees of difficulty. While some cases require full representation by a lawyer, others may need only partial representation, and yet others may need little to no assistance.

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Divorce Forms Will Burden Lower Courts With Teaching Litigants the Legal System Diana S. Friedman*

By approving forms last year that encourage do-ityourself divorces, justices of the Texas Supreme Court thought they were helping the indigent population of the state while reducing courtroom logjams. What the court actually did was to isolate our poorest residents at the most difficult moment in their personal lives. Armed only with forms they are not trained to understand, they can only hope the process will not adversely affect them and their families. At the same time, the justices place an even greater burden on the lower courts to guide an increasing number of people through "pro se" divorce cases. A recent incident in a Houston civil court serves as a glaring example of the danger faced by indigent Texans when they attempt a DIY divorce. The judge thought there was something familiar about the woman representing herself to prove up her divorce. The judge remembered her from a Child Protective Services case, and that she had children, but the woman checked a box on the form indicating no kids. "Yes, I have three children," responded the woman. "But the form says how many children are involved, and I've been careful not to involve any of them in this divorce." Only the judge's good memory kept the woman from a mistake that might have required her to come back to court to assure her child-custody rights. The judge in this case had to stop proceedings to explain the problem and set the record straight. In many urban areas, the courts have nearly ground to a halt under the pressure of non-lawyers trying to handle their own cases. Explaining the legal system to pro se litigants inevitably falls on judges and their Spring 2013, Vol. 22, No. 3

clerks. And it slows the civil system down for everyone. Proponents of do-it-yourself (DIY) divorce say forms have been available from a variety of sources for many years, but the Texas Supreme Court has never officially sanctioned forms before. The fear is that an increasing number of people will attempt the DIY model because they believe the Supreme Court is looking out for their welfare. Family lawyers in this state know that Texans, poor or otherwise, need lawyers, not forms. This is at the heart of the disagreement between those who want to provide attorneys in this instance and the people who believe people can divorce with forms. The debate has sometimes gotten nasty. Forms advocates say it's an instance of greedy divorce lawyers not wanting to cut off a potential source of business. But I don't know any family law attorneys looking for clients who can't pay for their services. And no one thinks state government is going to pay for this litigation. Our interest is in doing things right the first time so the court system operates smoothly and efficiently. Our solution is a project called Family Law Cares, which is working to provide pro bono legal services to that indigent population. Statistics from the Texas Access to Justice Commission indicate that 58,000 people qualified for pro bono legal services for the poor in 2011, and the majority of those were for divorce and other family law cases. Only about 20 percent of those eligible were served, but that's not for lack of attorneys. The Family Law Section of the State Bar of Texas includes about 6,000 attorneys, but the entire State Bar has more than 90,000 members.

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The Family Law Section of the State Bar is working to organize Texas attorneys in a systematic fashion, using effective communication techniques and technology, to enhance our pro bono initiatives. Most family lawyers handle some divorce cases pro bono. Our goal is to have the family lawyers train as many attorneys as possible from other practice areas to handle rudimentary family cases. We will also include the thousands of law school graduates who need courtroom experience to help them get a job, as well as family law clinics in most of the state's law schools.

The Family Law Section believes that by relying on forms, officials are simply throwing up their hands at the state's inability to address the problem. If we start with forms, then forms will be the predominant method of divorce for the poor, and everyone will suffer. If we decide that people deserve real, live attorneys, some may still use forms. But the predominant method will be real legal work that can avert disaster. * Diana S. Friedman is a Dallas divorce attorney, and Chair of the Family Law Section of the State Bar of Texas. She can be contacted at [emailprotected].

We know that bringing pro bono attorneys together with indigent clients is the combination that works. Even the Texas Supreme Court, in approving the use of forms, stated: "… the Court recognizes that obtaining legal representation, pro bono or otherwise, for every pro se litigant would be ideal ..." Dallas family court Judge Dennise Garcia was quoted in Texas Lawyer at a recent legal forum saying: "I think trying to solve the pro se problem with forms is a little bit like trying to solve hunger by distributing recipes. We have lots of forms in the law library, and those become train wrecks. ... It just doesn't make any sense without having the education or the knowledge."


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WHY WE NEED COURT-APPROVED LEGAL FORMS FOR THE POOR Harry M. Reasoner* There are almost 6 million people who qualify for legal aid in Texas. Legal aid organizations and lawyers who do pro bono work are only able to help 1 out of 5 of those who qualify and need legal help. Due to diminishing federal and state funding, even fewer poor will be helped in the future. Our country was founded on the principles of freedom, liberty, and justice for all. We make a promise every time we say the Pledge of Allegiance to provide justice for all. In Texas, we are failing to provide access to justice for the poor. The majority of people who seek legal aid assistance need help with family law matters. Those who cannot be helped are forced to try to represent themselves in court. Unrepresented litigants currently file more than 20% of all family law cases in Texas. The numbers are even higher -- about 40% -- for divorce cases. Improving the adequacy of self-representation by the poor is one of the few avenues we have to increase access to justice. For the unrepresented poor, access to the court system starts with access to forms. No case can be filed without one. No case can be completed without one. In an effort to improve access to the courts for the poor without an attorney, the Texas Supreme Court has issued Divorce Set One. These are good forms that are legally accurate and easy to use. They are narrowly drawn to help in the most basic situation involving no children and no real property when the parties agree on all issues. Some Texas lawyers have opposed creation of official forms. Opponents state that pro se litigants need lawyers. We agree. It would be best if everyone that needed a lawyer had one. Unfortunately, there are currently not enough lawyers or funds available to make that happen. Spring 2013, Vol. 22, No. 3

Opponents recently stated that there were only 58,000 people who qualified for pro bono legal services for the poor in 2011 and suggested that the 90,000 lawyers licensed in Texas could meet that need. This statistic is simply incorrect. Legal aid and pro bono providers served approximately 100,000 people last year, meeting about 20% of the legal need. There are 90,000 licensed attorneys. Even if each of those attorneys took one case, we would still not come close to meeting the need. We need both: lawyers and forms. Lawyers are needed for the poor who have complex or contested cases, or who are unable to represent themselves. Forms are needed for those who cannot afford a lawyer and who are turned away by legal aid providers. Opponents fear that forms cannot be drawn in a way that is legally sound yet simple enough to use without harming the litigants who use them. They voice a concern that Court-approved forms will be disruptive and further burden the courts. They have also expressed concern that the forms will take business away from lawyers who rely on these “bread and butter” cases. The National Center for State Courts’ Center on Court Access to Justice for All recently stated in its December 2012 Access Brief that “[a]ny program to assist the self-represented litigant must begin with the provision of court forms.” In fact, forty-eight states have used official court- or legislativeapproved family law forms to aid the poor in necessary self-representation. Lawyers in these states voiced many of the same concerns expressed by some Texas lawyers. These concerns have proven to be unfounded. These states, several of which have had decades of experience, report that forms are effective at increasing access to the courts while not causing harm to

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the litigants that use them. They improve judicial efficiency and economy by having a better prepared litigant with forms that comport with state law, rather than forms pulled off the Internet from a state with different rules. States supreme courts continue to promulgate forms because they work.

people using forms that they have obtained on the Internet or at Office Depot. They can only improve the current situation while providing a much-needed way for the thousands of people who cannot afford an attorney to access the court and resolve their legal problems.

Divorce forms are already widely used by selfrepresented litigants. They can easily be found from a quick search on the Internet, on Craig’s list, or from many other sources. Many of these forms are not consistent with Texas law. Others are out of date, incorrect, or too complex for use by selfrepresented litigants. The result is that litigants arrive in court with inadequate forms causing the judge to spend unnecessary time determining if the form is legally sound rather than simply determining if the form has been completed correctly.

As Texas Supreme Court Chief Justice Jefferson eloquently put it, “The Constitution requires the Court to administer justice. This occurs not only by deciding cases, but also by establishing a judicial climate in which people who lack the money to hire a lawyer have a reasonable chance to vindicate their rights in a court of law.” By approving Divorce Set One, the Texas Supreme Court has joined the overwhelming majority of states in our nation and has taken an important step towards upholding that fundamental promise of justice for all.

Self-represented litigants face added barriers from some courts that simply refuse to accept any pleadings or form with fill-in-the blanks or check-boxes. The Court has resolved this issue in the Order approving Divorce Set One by requiring courts to accept the forms if presented by a litigant that has properly used them.

* Harry M. Reasoner is a partner at Vinson & Elkins (Managing Partner from 1992-2001), and Chair of the Texas Access to Justice Commission.

As to the concern that Divorce Set One will cause more harm than good, these forms will clearly not add to the level of harm that is presently suffered by


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Spring 2013, Vol. 22, No. 3

CPR PATENT MEDIATION TASK FORCE REPORT* I. Background In 2010, the International Institute for Conflict Prevention and Resolution (CPR) formed the Patent Mediation Task Force to examine the benefits of mediation in resolving patent disputes, and to identify and overcome the barriers to the effective use of mediation. As a nonprofit alliance of global corporations, law firms, scholars, and public institutions dedicated to the principles of commercial conflict prevention, CPR has long been a pioneer in seeking improvements to private resolution in disputes involving intellectual property and patents. The Task Force was convened in response to current patent settlement rates, which demonstrate that mediation continues to be underutilized in patent disputes. The Task Force’s main objective was to analyze methods and solutions for improving the use and efficiency of mediation as an alternative dispute resolution (ADR) in patent disputes. To achieve their goal, the Task Force formed three subcommittees to examine mediation best practices from each of five stakeholder perspectives: in housecounsel/business people; outside counsel; mediators; judges; and provider organizations. Each subcommittee focused its evaluation on one of three distinct topics: pre-mediation, mediation, and unique issues in patent cases. They organized focus group meetings comprised of a variety of participants and used survey tools to gather facts about their respective topics. The subcommittees consolidated their findings into a best practices protocol that was then vetted by in-house counsel, attorneys, and leading ADR practitioners. II. Methodology Each subcommittee of the CPR Task Force held an initial meeting to identify prospective participants who could comment on and discuss their experiences with mediation. Each subcommittee then conducted Spring 2013, Vol. 22, No. 3

multiple teleconferences in early 2012, with a total of approximately 80 participants: approximately 15 participants were in-house counsel, 26 participants were outside litigators, 22 participants were mediators, 15 participants were judges or former judges and 2 participants were representatives of NPEs. The following report is the culmination of the Task Force’s project: the development of an “Effective Practices Protocol” (EPP) to highlight and promote the strengths of patent mediation as a means for providing an early resolution of patent disputes and saving companies from wasteful litigation costs.

III. Report and Recommendations Recommendations for Initiating the Mediation Process The Parties To The Dispute Must Be Fully Educated About The Mediation Process Parties to a patent dispute may resist mediation simply out of fear of the unknown, or because of a misunderstanding about the nature of the mediation process. To enable their clients to make an informed decision about the use of mediation, counsel should fully educate them about the process in the following ways. Mediation Is Not Binding And Has Many Advantages Over Litigation Clients should be informed at the outset that the notion that mediation is “binding” is a myth. Unlike arbitration, mediation is wholly consensual; either party may discontinue the process at any time and the mediator does not render a decision on the merits. Clients should also be advised of the many potential benefits of mediation, including substantially reduced legal expenses, speed to resolution, and the avoidance of the disclosure of confidential company information. These benefits are particularly important in patent disputes where proprietary technical

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information must be disclosed in discovery to determine infringement, and where confidential financial information is used to determine a reasonable royalty or lost profits damages. Even if these benefits do not materialize, or a settlement is not reached during mediation, the process enables each party to assess the strengths and weaknesses of its legal position and that of its adversary and to explore business solutions which may reach fruition at a later date. Mediators Are Not Arbitrators Or Judges; Nor Are They Mere Conduits For Self-Serving Settlement Proposals Clients should also be informed about the mediator’s function. A mediator is not an arbitrator or a judge or a mere conduit for the parties’ positions. He or she should not be expected to simply convey one-sided settlement offers to the other party in the expectation that it will ultimately capitulate. A mediator’s role is to facilitate the parties’ own negotiations and, when requested by the parties, to propose settlement solutions. Clients should realize that senior executives with settlement authority must fully participate throughout the mediation; anything less would be correctly perceived as an unwillingness to compromise. Lack of full participation by senior executives also increases the risk that settlement will not be achieved because resolution of a complex patent dispute requires that the parties fully understand their respective positions, business needs, and opportunities for compromise. Patent Mediation And Patent Litigation Are Completely Different Species Clients should be made aware that litigation and mediation in patent cases have very different objectives. One of the principal goals of litigation is to determine which party is right and which party is wrong (e.g., is the patent valid; is it infringed and, if so, what is the proper measure of damages?) In contrast, the purpose of mediation is to find a business solution to the parties’ dispute without necessarily determining which party is right and which is wrong (e.g., through a license or other business arrangement, which satisfies the interests of both parties.) It is essential that the parties understand the distinction between these two methods of dispute resolution from the outset because it affects their choice of a mediator, their decisions about who will attend the mediation and their expectations about the process. 26

Despite Its Drawbacks, Litigation Can Be A Useful Tool For Mediation Litigation in patent cases does have purposes other than winning at trial, which can be helpful in the mediation process. It enables the parties to discover facts which they may not have known, such as the existence of prior art, the actual operation of the infringing device or method, and the factors relating to the calculation of a reasonable royalty or lost profits. Litigation may also clarify the meaning of any unclear terms in the patent claims which will have a bearing on validity and infringement. Although these attributes of litigation are attractive in theory, in practice they often lead to delay and expense, driving up the cost of a typical patent case to over $5MM and the time to trial to over 3 years. It is not necessary to pursue full-blown litigation discovery and motion practice in order to achieve a successful mediation. Initiating Mediation Is Not A Sign Of “Weakness” When discussing mediation with their clients, counsel must dispel the common belief that proposing mediation to an adversary is a sign of “weakness.” This is a myth. Suggesting mediation is nothing more than an expression of a willingness to negotiate in a structured setting. Use the CPR Corporate Policy Statement on Alternatives To Litigation© One of the ways that counsel can overcome this perceived obstacle to mediation is to suggest to their clients that they become signatories to the CPR Corporate Pledge. The CPR Corporate Policy Statement on Alternatives to Litigation©, which has been signed by over 4,000 companies and their subsidiaries, was developed in the 1980s specifically to overcome the concern that a party’s suggestion of mediation (or other form of ADR) would be seen as a sign of weakness. The Corporate Pledge compels the signatories to attempt resolution of disputes through ADR before filing suit. The names of the companies which have signed the Pledge are available on CPR’s website, http://cpradr.org/About/ADRPledges/ CorporatePledgeSigners.aspx. In-house counsel can refer to this directory to see if the other party to the dispute is a signatory before initiating mediation.

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Use The Court (With Caution) To Support Your Mediation Initiative Courts in many jurisdictions have attempted to remove the stigma of “weakness” associated with initiating mediation (and also to clear their dockets) by mandating the use of this process. Courts began to compel mediation to facilitate settlement and to overcome parties’ reluctance to reveal to their adversaries any suggestion that they question the strength of their legal positions. Today, many federal and state courts require some form of mediation. Although many of these programs are successful, the compulsion of mediation by Courts in patent cases has received mixed reviews from focus group participants in the Task Force. Use Magistrate Judges Where Available; Be Wary Of Unpaid “Volunteers” The consensus of focus group participants was that court-ordered mediation often failed to take into account the timing of the mediation in relation to the status of the litigation, the parties’ willingness to negotiate and the impact of compulsion on a completely voluntary process. Coercion by a court to mediate when the parties are not ready to settle can cause many parties to simply go through the motions and not put much effort into the procedure. In addition, volunteer mediators on court panels are of varying quality and training and may not be compensated, factors which often lead them to achieve unsatisfactory results. Mediators who only encourage a “check the box” effort before trial are often wasting the court’s and litigant’s time and resources. This criticism of volunteer mediators does not generally apply to Magistrate Judges. The use of Magistrate Judges who have significant experience in patent cases can help assuage parties’ resistance to mediation and their concerns about appearing “weak.” Mediation of patent cases by Magistrate Judges is well known and accepted in many jurisdictions (e.g., Delaware) and many parties consider it to be a useful step in the litigation process. Referrals to experienced patent mediators are also available from CPR, JAMS, and AAA. Make Sure The Mediator Spells Out The Ground Rules Mediators themselves can also significantly reduce parties’ fears of appearing “weak.” Experienced patent mediators can help the parties become comfortaSpring 2013, Vol. 22, No. 3

ble with the mediation process and overcome any resistance or misconceptions. Confidential premediation conferences between the parties and the mediator to set expectations and build trust were often cited by focus group participants as contributing to the likelihood of a productive mediation. Mediators should clearly spell out the “rules of engagement” and provide structure to what parties often perceive as an amorphous procedure. This is especially appreciated by and helpful to executives with engineering backgrounds who usually play a large role in the outcome of patent cases. Use Mediation Provisions In Patent License Agreements Perceptions of weakness can also be avoided if counsel expressly includes a mediation provision into the dispute resolution clause of a patent license or other similar agreement. This can be mimicked after one of the CPR Model Mediation Clauses (http:// cpradr.org/Resources/ALLCPRArticles/tabid/265/ ID/635/CPR-Model-Clauses-and-SampleLanguage.aspx).While this option will not work with alleged infringers who have no preexisting contractual relationship with the patent owner, such a provision should not be overlooked in cases where there is such a relationship in place. Finally, once the mediation begins, any pre-existing issues about the strength or weakness of the case of the party proposing it become irrelevant and are rapidly superseded by the actual positions of the parties. Before Initiating Mediation, Use Early Case Assessment And Decision Trees Early Case Assessment (ECA) is a conflict management process designed to facilitate informed and expedited decision-making at the early stages of a dispute. It is an excellent tool to use in advance of commencing mediation. The process calls for a team working together in a specified time frame to: (a) gather the important facts and law relating to the dispute; (b) identify the key business concerns; (c) assess the risks and costs that the dispute poses for the company; and (d) make an informed choice or recommendation on how to handle the dispute. A related process is the use of Decision Trees. Decision Trees demonstrate the economic impact of litigation strategy and are particularly useful in patent cases as a tool for counsel to communicate effectively with clients about the costs associated with the various

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steps in the litigation process and the likely outcomes of their strategic decisions. ECA Helps The Parties To Focus On The Broader Business Context, Not Just The Specific Dispute Most focus group participants felt that the use of ECA or Decision Trees enhances the likelihood of success of a mediation. Both methods increase the level of preparation for mediation, as well as cause the parties to focus on business issues beyond those that are directly relevant to the dispute. In patent cases, with or without licensing potential, mediations often focus on business solutions, and the use of ECA and Decision Trees ensures a thorough analysis of the available business options. In addition, ECA and Decision Tree processes provide the parties with a broader business context against which to weigh the advice of patent litigation counsel and the judgment of the executives directly involved in the dispute. These methods provide the decision-makers with objective criteria for evaluating the settlement proposals offered by the other side. When Selecting A Mediator, The Parties Should Focus On Mediation Experience and Skill One of the benefits of private mediation is that the parties themselves select the mediator. When the parties choose the mediator, even if the choice is made from a list of court-approved mediators or from lists provided by CPR, JAMS or AAA, the mediation has a better chance of success. Even more desirable is for the parties to select the mediator from lists which each of them has prepared. Mediators must be fully informed about the background of the dispute and should understand the key facts and legal issues, the parties, and the business issues. Patience, optimism, persistence, neutrality, and good listening skills are all necessary qualities for a mediator. Focus group participants strongly preferred mediators who explored the nuances of the case, allowed the parties to fully express the strengths and weaknesses of their respective positions, and challenged the parties concerning unrealistic positions and expectations. Mediators are expected to work diligently with the parties and propose creative solutions to their business problems. Participants universally criticized mediators who simply conveyed settlement demands and responses back and forth be28

tween caucus rooms and tried to force the parties to meet somewhere in the middle. All agreed that mediation should not be used to force one side to capitulate. The Mediator’s Integrity And Ability To Elicit The Trust Of The Parties Is Critical Selecting a mediator with a well-established reputation is also important because the parties are more likely to develop trust and confidence in such a mediator as well as in the process. Other necessary attributes for a mediator include: (a) integrity, which includes unwavering neutrality and the ability to convince the parties that their confidential communications will be respected; (b) excellent communications skills; (c) a commitment to devote the time necessary to allow the mediation to succeed; (d) a willingness to work with the parties to develop a mediation process that is effective for their situation and to implement it; (e) sensitivity to cultural issues; and (f) a willingness to follow through after the mediation session to help the parties continue their settlement discussions and to ensure the formal settlement documents are prepared and signed. Mediation Skills Trump Technical Skills In A Mediation There was a general consensus among focus group participants that in order to be successful, a mediator in a patent case should have strong mediation skills, experience mediating patent cases, and a thorough understanding of patent law and patent litigation. Specific experience with the technology disclosed in the patent is not essential unless the dispute turns entirely on technical issues or the parties have requested an evaluative mediation. Moreover, with the parties’ consent, mediators can engage neutral experts to advise them on specific technical issues. A mediator who does not have strong mediation skills, notwithstanding his or her thorough knowledge of patent law, is unlikely to be successful because, as noted above, the purpose of mediation is to reach a consensus, not to render a judgment on the law. Conversely, since parties often rely on the mediator to conduct reality testing (e.g., asking probing questions) and to provide a reasoned explanation as to why they should alter their proposals, a mediator with strong mediation skills, but little or no patent experience, will be at a disadvantage. The optimal patent mediator combines both sets of skills.

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The Mediator Must Be The “Adult” In The Room It is important that the mediator have strong “people” skills, i.e., the ability to deal with the inevitable personal differences that arise in the mediation process. An excellent way to exercise these skills is to conduct pre-mediation conference calls with counsel and the parties to expedite the mediation process and provide the mediator with an opportunity to explain it to the parties. They will also enable the mediator to assess the personal issues which may interfere with achieving a settlement. For example, in those cases where parties bring emotional issues to the table, focus group participants appreciated mediators who could help them deal with those issues by permitting some amount of “venting” and allowing the parties to “tell their stories,” before delivering reality testing and focusing on the business issues. Since internal differences can arise among the representatives of the parties, having a mediator who can maintain a peaceful process and encourage conciliation within a group during the mediation is essential. Former Judges Must Learn To Become Settlement Facilitators And Leave Their Judicial Robes Behind Focus group participants agreed that former judges can be effective mediators if they have mediation training and experience. A former judge may add an extra layer of credibility, which makes clients more comfortable with the process, and is often in a good position to determine the proper point in litigation when mediation should be attempted. Former judges can also provide a generalist’s reaction to the case and some may be able to predict the reactions of jurors at trial, a perspective which is very helpful in reality testing. However, even those former judges who are committed to using mediation (rather than judicial) skills to mediate patent cases are often expected by the parties to predict who will win lose and, if favorable to the party making the request, convey this message to the other side. This expectation clearly defeats the purpose of mediation. Former judges should disabuse the parties at the outset (i.e., in pre-mediation calls and the joint session) that they will act as decision makers and emphasize that their role is solely to facilitate the parties’ own negotiations.

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Counsel Should Propose Mediation As Early As Possible Although there are no hard and fast rules about the optimal time for mediation, most focus group participants expressed the view that mediation should take place as early as possible, when the parties have sufficient information to evaluate the strengths and weaknesses of their positions and before their views have been hardened by the emotion, and in some cases hostility, that is generated by the litigation itself. It is also advantageous to the parties to seek a mediated resolution before litigation expenses begin to mount. Commencing mediation at the outset of a patent case may shed light on the parties’ amenability to settlement and their respective goals. For example, the alleged infringer can evaluate the patent owner’s demand for royalties or damages and compare that sum to the cost of litigation through trial. Similarly, the patent owner can evaluate the alleged infringer’s evidence concerning the validity of the patent and the likelihood that it will be successful in obtaining a ruling of invalidity. Parties in certain industries are amenable to early mediation even before they have developed a full factual record. For example, in the pharmaceutical industry, generic manufacturers generally prefer to pursue mediation quickly. Counsel for generic pharmaceutical clients often suggest mediation at the Rule 16 scheduling conference, and judges are often amenable to early mediations in these cases. In some industries, however, depending upon the corporate culture, cases do not settle until late in the game (e.g., at the end of the pretrial process) because business clients do not focus on the dispute until then. Rather than confining mediation to either the beginning or the end of the litigation, many focus group participants recommended multiple mediations: one at the beginning of the case and additional mediations at later stages as the case gets closer to trial. This approach optimizes the likelihood of an early resolution and, even if unsuccessful at the initial mediation, enables the parties to learn facts about their adversary’s case which may prove helpful in settling the case at a later stage.

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The optimal time to mediate is when both parties are somewhat unsure about their respective litigation positions. Examples of events which should cause counsel to consider mediation are: significant changes in the parties’ respective businesses or competitive positions; the filing of a counterclaim which introduces new issues into the case; the impending deposition of a person who does not want to be deposed (e.g., a party’s CEO); an interim decision by the Court on an important procedural issue; or an early Markman ruling. A Markman Ruling Is Not Essential Before Commencing Patent Mediation The usefulness of a Markman ruling before scheduling mediation has to be considered on a case-by-case basis (e.g., how significant is the file history for the claim terms at issue, what are the strengths and weaknesses of the claims, who is the presiding judge and what is his or her experience with patent cases?) If the key claim terms are genuinely ambiguous and require interpretation, it may be necessary for the parties to wait until after a Markman ruling to commence mediation. However, there are two caveats to this approach: many parties seek the interpretation of claim terms solely for tactical reasons, not because they are actually ambiguous; and many claim interpretations are overturned by the Federal Circuit, which undercuts the weight they are given by parties at the District Court level. With the high rate of reversals on appeal, a Markman ruling from a District Court does not resolve uncertainty, and may not accurately foretell the ultimate outcome. In contrast, when mediation occurs before a Markman ruling, and there is an impasse at the mediation, receiving the Markman ruling after the mediation can help resolve the case quickly. Having the mediation first can push the parties further along the settlement path (i.e., by opening communication) before receiving the Markman ruling. Another time to begin mediation is when the Markman ruling is pending because at that point both parties experience the highest level of risk. Parties Need Not Conduct Full Blown Litigation Discovery Before Commencing Mediation It is not necessary to complete litigation discovery in order to have a successful mediation. If the parties have sufficient information (from initial discovery or 30

the cooperative exchange of information) to evaluate each other’s cases, if counsel know and respect one another, and if the parties are motivated to settle, mediation can be effective. While some focus group participants expressed the view that full discovery was necessary before sitting down at the mediation table, most found this not to be the case. In fact, proceeding with full discovery can frustrate a principal goal of mediation, which is to avoid wasteful litigation expense. The likelihood of finding a “smoking gun” in discovery is rare. Premediation discovery may also be highly problematic in international patent disputes, given the general unavailability of discovery in civil law jurisdictions and the limited availability of discovery in other common law countries. There Are Many Alternatives To Litigation Discovery Prior To Mediation Focus group participants consistently expressed the view that expensive discovery, especially electronic discovery, should be avoided prior to mediation. Rather than engage in full blown discovery, the following techniques should be considered by counsel to prepare their clients for mediation: (a) clients should be made to understand the substantial cost of full litigation discovery compared with the more modest cost of disclosing information solely for the mediation; (b) counsel should try to persuade their adversary to provide necessary information voluntarily and, if necessary, seek the assistance of the mediator in this effort; (c) counsel should execute a bullet-proof confidentiality agreement which limits the use of the information exchanged solely to the mediation; (d) counsel should determine what information is publicly available and use that fact as leverage to request additional information from their adversary; (e) counsel should consider providing information, such as financial data, in summary form (rather than not at all) with the agreement that any settlement agreement would include a representation as to its accuracy; (f) counsel should consider having the mediator review confidential financial information, such as marginal casts and profits, in camera;

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(g) if the information is required to perform an infringement or invalidity analysis, counsel should consider having the confidential information disclosed to a neutral third party (other than the mediator) who can then render an evaluation without disclosing the information; (h) counsel should consider only allowing outside counsel to see confidential information; (i) counsel could suggest limiting the disclosure of confidential information to one key person at the mediation and to the mediator; and (j) if a pre-mediation exchange is not possible and the dispute is the subject of active litigation, counsel should consider pursuing focused discovery rather than broad discovery common in patent cases, and mediate after documents are exchanged or after the taking of limited depositions.

Recommendations for Conducting and Participating in Mediation Pre-Mediation Conferences Are Essential Pre-mediation discussions can be used to shorten the duration of the mediation session, where information is exchanged between the parties and the mediator, and the mediator can help the parties to “front load” much of the work. This is important because there is “Parkinson’s Law” at play in patent mediation: work expands so as to fill the time available for its completion. Because real progress toward settlement tends to await an arbitrary deadline (e.g., the end of the business day), other deadlines (set by the mediator) may actually help rather than hinder settlement. Opening Statements Should Only Be Used On A Case-By-Case Basis Although all focus group participants recognized the need for written mediation statements before the mediation begins, there was much debate over the merits of including oral opening statements by each party at the outset of a mediation session. Some of the potential benefits and drawbacks of opening statements are summarized below, and suggest a case-bycase approach may be best. The timing of the mediation in the life of a dispute (i.e., earlier versus later; as a first attempt to resolve the dispute or after much negotiation) may dictate whether to have opening Spring 2013, Vol. 22, No. 3

statements, as might the parties’ relationship (e.g., cooperative versus acrimonious). Pre-mediation discussions should also direct whether to have opening statements since, in some cases, the parties might strongly express the desire to make them. It is important to pay attention to who will attend the mediation session and to whom the statements will be presented. The apparent trend, if one exists, is to avoid opening statements in patent mediations. There is an introductory joint session and then the mediator goes straight to private caucuses between the mediator and each of the parties. In some mediations, the parties never meet together at all – let alone present statements to each other. If opening statements will be made, the mediator can make clear in premediation discussions that the parties should refrain from posturing during opening statements; rather, the opening statements should focus on the process and on resolving the issues. Ultimately, the decision whether to have opening statements turns on the character of the parties, the nature of the dispute and the mediator’s and counsels’ assessment of their usefulness in the case. The Advantages Of Allowing the Parties to “Vent” Notwithstanding the trend against them as mentioned above, opening statements can be very useful because they allow the parties to try to convince the other side of the merits of their respective positions. Joint sessions often provide the parties with their only opportunity to directly address the principals of the other side without having their comments filtered by outside counsel. Even in complex patent cases, the parties can bring with them emotional barriers which prevent settlement negotiations. Opening statements can allow the parties to “vent” their emotions and give them an opportunity to be heard. Often, after this “venting” process, the parties are prepared to proceed with the mediation process in a more reasonable frame of mind, which may facilitate an ultimate settlement. In addition, the mediator can question the parties in front of each other after the opening statements and, perhaps, use the information stated as a reference during later caucus sessions, for example, “how do you address what X said about Y?”

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The Disadvantages Of Litigation Driven Opening Statement In some cases, however, opening statements can poison the atmosphere of the mediation. Opening statements made in patent mediation often parallel statements made in the litigation. These types of opening statements give the parties an opportunity to posture. They tend to be argumentative, can harden positions and entrench people, and fail to focus on compromise. They also increase the expense of the mediation. When parties from outside the U.S. are present, which is often the case in patent disputes, an opening statement can also cause a party to lose face and, therefore, become an obstacle to settlement. It is important to be mindful of cultural issues during opening statements. Another Approach: Let The Mediator Make The Opening Statement One way to avoid the above pitfalls is to have the mediator alone present an opening statement so that polarization does not occur. The mediator can explain the process and relevant issues (i.e., confidentiality) and can begin with a neutral description of how the case has been presented to by each party without editorializing remarks. A good opening statement sets the tone for the mediation process that follows: the statement should acknowledge the parties’ differences, be presented in a conciliatory tone, and reflect the voice of reason. The Mediator Should Avoid Artificial Time Constraints Time constraints and other problems should be addressed in advance of the mediation session. The mediator should educate the participants about the need for flexibility in their time commitments because parties generally underestimate the time required for mediation. Patent mediators usually set aside two days at the outset (or schedule the mediation session for a Friday so that Saturday is available if needed). If the parties hit an impasse during the first day, all participants can think about that impasse (and potential creative solutions) overnight. The Mediator Must Carefully Manage The Private Caucuses The general consensus among focus group participants is that private caucuses between the mediator and each of the parties are absolutely necessary in 32

patent mediation. The majority of time in a typical patent mediation is spent in these caucuses; the parties usually do not spend too much time together, as a group, in joint sessions with the mediator. In some cases, for example those in which the party representatives are not on good terms, the mediator may (and perhaps should) separate them during the process. The mediator should try not to waste the parties’ time; therefore, the mediator might leave one party with “homework” or something to think about while working with the other party in a private caucus. The mediator should always keep the parties apprised of what is happening procedurally as he or she orchestrates the process. Party Representatives With Full Authority To Settle Must Be Present During Mediation All focus group participants agreed that the presence of party representatives having full settlement authority is essential to the success of a patent mediation. Beyond that consensus, however, there are a number of issues: Who has the authority to settle? Should the mediator refuse to proceed if authorized representatives are not present? Is it sufficient to have the representatives available by telephone, if not in person? Is it important to have the presence of “comparable” party representatives? One of the attributes of mediation is its flexibility. Creative solutions not contemplated by party representatives before mediation may prove important in reaching a settlement after the fact. Therefore, it may not be possible to assure that a party’s mediation representative has “full” settlement authority. Moreover, patent mediations often involve large companies as parties. Large companies may have to work (perhaps slowly) through a complicated process to decide who has the authority to settle. They tend to have various levels of authority, and management may not give authority to outside counsel or even to in-house counsel. Finally, it may be truly impossible for some large companies to make sure that a representative with full settlement authority attends the mediation since some corporate cultures have a consensusbased decision making style. In these cases, the mediator must do the best that he or she can. The mediator can advocate for a representative with full settlement authority to attend. The mediator can insist that a business person, not just

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the general counsel, be present on behalf of a company. If only lawyers are present, resolution of the dispute may prove more elusive. It is essential to have the business people present and to have them actively involved throughout the process, especially those who are senior executives. Telephone Attendance May Be Permitted If The Decision Maker Is Fully Informed And Prepared One way to address a lack of physical attendance at the mediation by a party’s ultimate decision-maker is to have the person with ultimate authority available by telephone. Telephone attendance works best when the party identifies the decision-maker who will not be present (e.g., the CEO), prepares the decision-maker in advance, and keeps the decisionmaker up to speed during the mediation to minimize surprises. The decision-maker should be consulted before the mediation to discuss at least a range of acceptable resolution options. Thus, in all cases, a person attending the mediation should have full settlement authority within a given range. In some cases, creating a memorandum of understanding is the goal in mediation so the parties can go back to their respective managements for final approval. As a further complication, there may be another entity not party to the litigation or underlying dispute (e.g., a licensee, an investor, an insurer) to which one of the parties has an obligation. Should or must a non-party attend the mediation? Each party should at least identify all of the stakeholders on its side, speak to them in advance of the mediation, define settlement parameters, and get their buy-in. Such stakeholders also may be involved by telephone. The Parties Should Be Represented By Persons Of Comparable Or Equal Authority Another issue arises when the parties bring to the mediation representatives who do not have equal or comparable status. This imbalance may be reflected in settlement authority (e.g., one party has a representative with full authority, the other does not); in stature (the CEO of one party attends versus a lowlevel manager of the other party); in numbers (one party has one representative while the other party has five); or in other ways. A party evaluating “is this worth it?” may conclude “no” unless a comparable counterpart from the other party will attend the mediation. Spring 2013, Vol. 22, No. 3

A party may view lack of attendance by a peer as a signal that the other side has no interest in settling the case. One side may even be insulted (especially if cultural differences exist) by lack of poor attendance. Fortunately, pre-mediation communication can address the issue of incomparable attendance. The mediator should determine at the outset who is attending the mediation. By knowing which representatives are expected to attend, each party may “red flag” certain issues, and the mediator should address any problems that might arise at that time. If one party does not see a counterpart on the list of attendees, then it should attempt to have that person attend. Disclosure of who is attending the mediation is critical; there should not be any surprises. Handling The Mediation Where A Party Does Not Have The Authority To Settle One of the biggest frustrations with mediation occurs when the parties reach a settlement and are ready to sign the settlement agreement, and one party announces that it does not have the authority to sign, but will have to get approval from someone who is not present. If a person with ultimate settlement authority cannot be present during mediation, should the mediation proceed? Unfortunately, outside of the context of court-ordered mediation, the mediator does not have the power to mandate attendance. While some would say that having the mediation occur, even without settlement, is better than not having the mediation at all, other mediators will not conduct a patent mediation unless a decision-maker for each party is present. Mediators note that settlement rates increase when business representatives with settlement authority are involved, since this involvement helps each party to “buy in.” Stated alternatively, it is too easy to say “no” to an agreement when you have not been a part of the mediation process. With court-ordered mediation, the mediator may be able to exert more influence on attendance because the mediator has to report back to the court on the result of the process. Judicial orders to mediate in some jurisdictions have become very specific and stringent; the order may require someone with full settlement authority to attend. A party may be held in contempt if they fail to have a representative with sufficient settlement authority in attendance. To ad-

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dress that risk, parties should make sure they understand from the mediator in advance what the expectations regarding authority are, communicate that information appropriately, and bring the appropriate representatives to the mediation. Litigators Should Promote, Not Interfere With, The Mediation Process Since the principal purpose of mediation is to find a business solution to the patent dispute, and not to “win,” mediation puts litigation attorneys in a difficult position; they have to set aside their “gladiator” instincts and adopt the role of business advisors. Many focus group participants observed that, unless they act as problem solvers and not advocates, litigation attorneys are often counter-productive in the mediation process. Yet, there are a number of ways that they can improve the likelihood of a successful mediation. For example, in their mediation statements, advocates should acknowledge the risks of litigation, concede any weaknesses in their positions, and propose reasonable solutions. They should forego the temptation to make an aggressive opening statement, but rather use the opening as an invitation to negotiate. They should also make sure that their clients have an opportunity to speak as part of the joint session. This approach serves two purposes: (a) the parties, not the attorneys, need to vent their grievances before they can begin negotiations; and (b) they also need to focus on potential business solutions from the outset. During the private caucuses, the litigation attorneys should not interfere with the mediator’s efforts to evaluate the parties’ positions. They should also avoid allowing artificial barriers to prevent the successful conclusion of the mediation (e.g., by claiming that she/he or his/her client has a plane to catch, or using other excuses to cut the process short). They should also be prepared to paper the deal before negotiations start so that “wordsmithing” delays will not be an obstacle to a successful settlement agreement. Provisions relating to confidentiality, termination of the litigation, releases, etc. should be prepared in advance. Finally, litigation attorneys should assure their clients of the integrity of the mediation process and explain its key elements, such as 34

achieving a mutually beneficial result with no clear winner or loser.

Recommendations for Mediating With Non-Practicing Entities Mediation With NPEs Should Not Be Dismissed Out Of Hand; Many NPEs Are Amenable To Mediation Mediations of patent disputes are complicated by the participation of non-practicing entities (“NPEs”). There are many different types of NPEs; NPE business models have expanded from the original notion of a garage inventor enforcing his or her own patent for recognition to sophisticated businesses that acquire patents in quantity across diverse technologies for enforcement for profit using varying strategies. Unfortunately, some NPEs have engaged in business practices which have adversely affected their reputation. An important characteristic of patent disputes involving NPEs is that NPEs rarely have products or services of their own, resulting in an asymmetric patent threat because patents of the defendant are rendered useless against the NPE. Before the recent Supreme Court decision in eBay, an NPE would often seek an injunction against patent infringement, although now the availability of injunctions in federal courts has been reduced. However, an NPE is generally motivated by damages and an injunction is merely a tool to increase leverage in license negotiations rather than the desired end result; if the defendant cannot make and sell anything, then the NPE is not entitled to royalties. Ordinarily, the seeking of an injunction might be considered an impediment to mediation of a patent dispute because a party might simply want marketplace exclusivity against a competitor defendant, but an injunction sought by an NPE is generally just a negotiating tactic. A significant obstacle to mediation with an NPE is that many companies, as a matter of policy, refuse to mediate with them regardless of the reputation of the NPE involved or the merits of its claim. This orthodox approach should be re-evaluated. Until recently, NPEs also had a tendency to initiate multi-defendant litigation. The presence of many defendants can bog down mediation in disputes or

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administrative issues among the defendants. The America Invents Act included a provision preventing joinder of defendants based solely on the alleged infringement of the same patent. As a result, the rate of initiation of multi-defendant litigation by NPEs has dropped considerably. However, the Federal Circuit has since authorized joining of pre-trial phases of separate litigations relating to infringement of the same patents by different defendants. It is still too early to understand how frequently this phenomenon will occur and the implications for the mediation of patent disputes. Perhaps the largest impact of an NPE on the mediation of a patent dispute results from the relationship between the NPE and the defendant. In many disputes, the parties are competitors, customers of each other, or business partners (or all of the foregoing) and have a strong interest in resolving disputes amicably to maintain a good working business relationship. An NPE and/or defendant may have no expectation of a future business relationship and therefore have less motivation to seek compromise. Good relations may be important with respect to NPEs with large patent portfolios that repeatedly assert patents against the same defendants, although defendants may prefer to set precedent for the future (particularly with respect to patents perceived to be of poor quality or inflated damages expectations).

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* About CPR: CPR is the leading independent resource helping global business and their lawyers resolve complex commercial disputes more cost effectively and efficiently. In 1979, CPR started this legacy by being the first to bring together Corporate Counsel and their firms to find ways to lower the cost of litigation. Since that time, CPR has changed the way the world resolves conflict by being the first to develop an ADR Pledge©. Today, this Pledge obliges over 4,000 operating companies and 1,500 law firms to explore alternative dispute resolution options before pursuing litigation. CPR is once again challenging the way the world resolves conflict by introducing the 21st Century Corporate ADR Pledge©. This new Pledge will systemically change the way global business and their leaders resolve complex commercial disputes. CPR’s membership comprises an elite group of ADR trailblazers, including executives and legal counsel from the world’s most successful companies and global law firms, government officials, retired judges, highly-experienced neutrals, and leading academics. CPR accomplishes its mission by harnessing the expertise of these leading legal minds to change the way the world resolves conflict for generations to come.

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The Path Toward A Federal Mediation Privilege: Approaches Toward Creating Consistency For A Mediation Privilege In Federal Courts By Joseph Lipps*

I. INTRODUCTION In commencing a mediation, the mediator provides an opening statement promising confidentiality. This promise however is wrought with a complex legal analysis where federal courts have contradicted one another. The courts’ inconsistent analyses have removed predictability with respect to confidentiality during mediation. Although research has not proven a direct link between success in mediation and confidentiality, judges and scholars have accepted that confidentiality is one of the most crucial components to the mediation process. In order to weigh in favor of excluding mediation communications from discovery and evidence, courts must find that trust and confidentiality are crucial to mediation. In determining whether to adopt a federal mediation privilege, consistency is crucial to the process. The federal courts’ varied and inconsistent interpretations of the existence of a mediation privilege hinder both the progress of mediation, and the movement for consistency with the Uniform Mediation Act (UMA). The current jurisprudence surrounding mediation leaves mediators unable to comprehensively ensure a mediation privilege. Attorneys are unable to advise their clients on the future effect of mediation, potentially making clients unwilling to mediate.


Similar to the attorney-client relationship, there is an important distinction between confidentiality and privilege; this distinction is often conflated. In professional relationships and in the context of mediation, confidentiality is a promise by the mediator to not voluntarily disclose any information communicated during mediation. Privileges, however, are meant to avoid involuntary testimony in court concerning communications during mediation. Courts and the legislature cautiously enact privileges, because they exclude crucial information from the discovery process and the courtroom. These exclusions hinder the courts’ ability to reach the most just result. Federal Rule of Evidence 408 and its state law counterparts exclude communications during settlement negotiations from evidence in court if the communications prove liability. A privilege is much broader than this evidentiary exclusion. A mediation privilege prevents parties from obtaining information from mediation in discovery. Privileges infringe on the trier-of-fact’s ability to reach a decision, and the courts’ ultimate goal of reaching the truth. Despite the limitations that a privilege imposes on courts, many states have followed the Uniform Mediation Act’s lead in adopting a mediation privilege. The state legislatures which have adopted the UMA believe the importance of trust in mediation outweighs any evidentiary benefit. Although academics and state legislators have embraced the move toward adopting a mediation privilege, federal courts have been less willingness to implement a mediation privilege, resulting in inconsistencies and a lack of predictability.

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The federal courts’ development of a mediation privilege and its contours has been gradual and restrained. One study has shown, the reason for this slow development in the law is due to courts and practitioners, who continually ignore and fail to raise the issue of a mediation privilege. In approximately one third of all the decisions in the study’s database, courts admitted evidence from communications during mediation. Surprisingly, in many of the courts’ decisions, the courts admitted evidence without a party raising the issue of a mediation privilege, or the court raising the issue sua sponte. As attorneys and judges neglect to address the issue of the mediation privilege, courts miss opportunities to rule on this complex and contentious area of law. The future of the mediation privilege has substantial implications for the future of mediation. The courts should adopt a mediation privilege to ensure predictability and integrity in the mediation process.

II. ADOPTION OF THE FEDERAL MEDIATION PRIVILEGE Federal Rule of Evidence 501 grants the authority to federal courts to adopt evidentiary privileges through their judicial reason and experience. Congress enacted Rule 501 instead of specifically enumerated privileges that the Advisory Committee on Rules of Evidence drafted. The Committee drafted nine specific privileges, which the Supreme Court and the Judicial Conference approved. Congress rejected this rigid approach to adopting privileges, preferring the more flexible approach of Rule 501, “leav[ing] the door open to change.” In determining whether an evidentiary privilege exists, courts follow the four-pronged test of Jaffee v. Redmond, 518 U.S. 1, 8 (1996). In Jaffee, the Supreme Court explained, there is a default presumption that evidence is admissible; there is a “fundamental maxim that the public . . . has a right to every man’s evidence. Federal courts are hesitant to grant new privileges, but they will create a privilege to further a public good. To determine whether the privilege furthers a public good, courts examine four factors:

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(1) whether the privilege is necessary for confidence and trust; (2) whether the privilege serves public ends; (3) whether the loss of evidence due to the privilege is modest’ and (4) whether denying the privilege would frustrate similar state privileges. To justify the creation of a psychotherapist-patient privilege in Jaffee, the Supreme Court relied on empirical data; studies displayed that the lack of a privilege would undermine psychotherapy. However, research has suggested that the cited authorities in Jaffee do not sufficiently show the necessity for this privilege. Edward Imwinkelried, The Rivalry Between Truth and Privilege: The Weakness of the Supreme Court’s Instrumental Reasoning in Jaffee v. Redmond, 49 Hastings L.J. 969 (1998). If this research is accurate, it appears the Court lowered its threshold for the necessity of empirical data. This observation has important implications for the federal courts’ willingness to accept a common law mediation privilege, because there is limited data displaying the need for confidentiality to reach an agreement in mediation. If judges believe empirical data is necessary before adopting a privilege, more data will be necessary before the courts adopt a mediation privilege when a federal court confronts a federal question or pendent state claims, the common law of the federal court applies. Following the analysis from Jaffee, the Central District of California adopted a federal common law mediation privilege in Folb v. Motion Picture Industry Pension & Health Plans, 16 F. Supp.2d 1164 (C.D. Cal. 1998). This holding established a framework upon which other courts have relied to either apply or reject a federal mediation privilege. Folb serves as the bedrock of the federal common law mediation privilege. However, the boundaries of the mediation privilege set forth in Folb are narrow and undefined. While all information revealed during mediation and created in preparation for mediation is protected, any subsequent negotiation lacks Folb’s mediation privi-

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lege. In creating a mediation privilege, the Court in Folb avoided a confrontation with Rule 408 of the Federal Rules of Evidence. Folb followed the trend of the Uniform Mediation Act and a majority of the states, which overwhelmingly have embraced a mediation privilege. Although Folb noted the new privilege would have to be “fleshed out over time,”32 federal courts have been surprisingly reluctant to follow Folb’s reasoning. See, In re Grand Jury Subpoena Dated December 17, 1996, 148 F.3d 487, 493 (5th Cir. 1998). The decisions following Folb help elaborate on the current status of the common law federal mediation privilege. Outside of the Ninth Circuit, the Western District of Pennsylvania followed the reasoning of Folb and potentially broadened its interpretation, in Sheldone v. Pa. Tpk. Comm’n, 104 F. Supp. 2d 511 (W.D. Pa. 2000). However, this Court struggled to define the privilege’s contours and merely stated, the privilege will follow the district court’s local rules enacted pursuant to the ADR Act. The Court recognized the incompleteness of their analysis, leaving open the possibility that a district court with different local rules may create a different common law privilege. Sheldone perhaps moved beyond Folb’s scope, suggesting the privilege may apply to settlement discussions after the formal mediation as well. The Sixth Circuit further complicated privileges in Goodyear Tire & Rubber Co. v. Chiles Power Supply, 332 F.3d 976 (6th Cir. 2003). In Goodyear, the Court addressed whether settlement communications were privileged, precluding them from evidence and discovery under Rule 26 of the Federal Rules of Civil Procedure. This case did not address mediation, nor did the court address a federal mediation privilege, but the Court adopted a broad settlement privilege following the policy from Jaffee. The Sixth Circuit did not rigidly apply the four-factor test of Jaffee, but rather broadly applied the policy, that due to the Court’s “reason and experience,” it believes settlement communications are privileged. While the courts in Folb and Sheldone took an incremental approach, adopting a limited test in compliance with local rules, Goodyear has potentially tremendous evidentiary implications. Although not formally a mediation privilege, the broad scope of a settlement privilege appears to create a broader cate38

gory, which encompasses mediation. The Sixth Circuit explained that settlement communications are inadmissible not because they are irrelevant as evidence, but rather out of a desire to curb litigation. This dicta from the Sixth Circuit is important in considering the future of the mediation privilege. The Sixth Circuit conceded that settlement communication evidence is relevant, but held this determination was not dispositive. The Court believed the desire to curb litigation surpassed this evidentiary detriment. This has important implications because Folb’s holding made an effort to not address settlement negotiations, because they fall under Rule 408.45 If courts followed the Sixth Circuit’s reasoning in adopting a federal mediation privilege, they could move beyond Folb and be less weary of the limits of Rule 408, like the Sixth Circuit in Goodyear. III. CIRCUIT COURTS’ RELUCTANCE TO ADOPT A FEDERAL MEDIATION PRIVILEGE Despite the increasing use of mediation, and the increasing number of states adopting mediation privileges, federal courts have been reluctant to adopt a common law mediation privilege. The courts’ inconsistent applications of a mediation privilege will likely chill a party’s candidness in mediation, and discourage mediation.46 In Babasa v. LensCrafters, 498 F. 3d 972 (9th Cir. 2007). the Ninth Circuit surprisingly denied the opportunity to address the precedent of Folb. LensCrafters sought to preclude evidence from mediation, but it failed to raise the issue of a federal mediation privilege. The Court declined to address the issue, despite the influential and controversial Folb holding in the Ninth Circuit. The Court recognized the potential privilege in a footnote, but did not address the issue’s merit. It is apparent the Court contemplated a mediation privilege, but sidestepped the issue because LensCrafter’s attorney failed to raise the issue. Avoiding the mediation privilege leaves divergent holdings and jurisdictional splits in place. By avoiding any substantive analysis, and burying the issue in

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a footnote, the Court provided a disservice to the predictability of mediation. Similarly, in In re Anonymous, 283 F.3d 627, 639 n.16 (4th Cir. 2002), the Fourth Circuit declined to address the federal mediation privilege. Instead, the Court applied a narrow holding based upon a local rule, again only mentioning the mediation privilege in a footnote.

(1) whether there is agreement between state and federal law favoring a privilege;

While some federal courts avoid addressing the federal mediation privilege, other federal courts have unequivocally rejected the adoption of a mediation privilege. In In re Grand Jury Subpoena, 148 F.3d 487, 493 (5th Cir. 1998), the Fifth Circuit reversed a lower court, which held that documents relating to mediation are privileged and therefore need not be disclosed. The Court interpreted a confidentiality provision narrowly, holding that confidentiality is independent from a mediation privilege. The Court did not apply the Jaffee factors to determine whether to create a new privilege. The Court stated that absent a clear manifestation from Congress for a privilege, they would not create one.

(4) whether the party seeking a privilege has shown with extreme clarity that a privilege will advance a public good.

Unlike the Ninth Circuit, the Fifth circuit in In re Grand Jury addressed the mediation privilege and established precedent for the district courts. The Northern District of Texas followed this holding in F.D.I.C. v. White, 76 F. Supp. 2d 736, 738 (N.D. Tex 1999), holding that it will not create a mediation privilege without congressional intent. Although one may find indirect congressional intent through the ADR Act, 28 U.S.C. §652, the Court found the legislative history insufficient to find Congress intended to enact a federal mediation privilege. The adoption of a broad settlement privilege in Goodyear appeared to indicate a willingness to create privileges more broadly. The Washington D.C. district court in In re Subpoena Issued to Commodity Future Trading Com’n, 370 F. Supp. 2d 201 (D.D.C. 2005), disapproved of creating a new settlement privilege in scathing terms. The Court rejected an expansive interpretation Jaffee and the federal courts’ liberal creation of new privileges under Rule 501. This Court enumerated a list of other privileges that federal courts have declined to adopt. The Court claimed to follow Jaffee, but it applied a more stringent factors test, which varied from the four-factor test in Folb: Spring 2013, Vol. 22, No. 3

(2) whether Congress considered and failed to adopt the privilege; (3) whether the advisory committee recommended this evidentiary privilege; and

Divergent holdings and jurisdictional splits frustrate predictability within evidentiary privileges, but a different Supreme Court test breaks down predictability much further. This Court’s higher threshold for adopting an evidentiary privilege follows Scalia’s dissent in Jaffee rather than Jaffee’s majority opinion. Scalia disagreed with the notion that adoption in all fifty states of a similar privilege weighs in favor of creating a federal common law privilege. Rather, Scalia believed this was an argument against a judicial adoption of a privilege, because it displays the legislature is better situated to create new privileges. Scalia’s reasoning, if followed by the federal courts, will vastly hinder the creation of a federal mediation privilege. In re Subpoena adopted Scalia’s view, persuading the Court to not adopt a federal privilege. If other courts follow Scalia dissent in Jaffee, it is unlikely that there will be a federal mediation privilege. Folb first defined the federal mediation privilege, but courts have been reluctant to apply its reasoning. Subsequent holdings are beginning to indicate that Folb was an outlier rather than a pioneer. The broad question facing courts is whether a mediation privilege is ultimately more important than an underlying goal of determining truth. The Court in Folb believed, the need for trust in mediation warrants finding a privilege, but subsequent cases and scholarship indicate that Folb glossed over a thorough analysis with the other Jaffee factors. Ryan D. O’Dell, Federal Court Positively Adopts a Federal Common Law Testimonial Privilege for Mediation: Is it Justified?, 1999 J. DISP. RESOL. 203,

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215 (1999). For example, the third Jaffee factor questions whether the evidentiary detriment is modest. The frequency of using mediation communications in litigation demonstrates that mediation communications may often determine a case’s outcome. Folb provides a cursory explanation of this third factor. Rather than analyzing whether the evidentiary detriment is truly modest, the Court reiterated the importance of confidentiality. The fear of an evidentiary detriment is less important when looking at the Courts reasoning in Goodyear, which adhered to the policy rather than the test from Jaffee. However, courts have not yet looked to the Sixth Circuit to justify adopting a mediation privilege, because few courts indicate a willingness to adopt a mediation privilege. Perhaps the unspecified analysis from Folb made it a less powerful pioneer for adopting a federal mediation privilege. Despite the states and some courts’ movement toward adopting a privilege, many courts are still not persuaded by Folb’s reasoning. IV. MOLINA V. LEXMARK AND THE FUTURE OF THE MEDIATION PRIVILEGE In Molina v. Lexmark, 2008 WL 4447678 (C.D.Cal.) (unreported decision), Judge Morrow has set the tone for the future of the federal mediation privilege. Molina filed a class action against Lexmark in California state court. Lexmark attempted to remove the case to federal court. Lexmark claimed the suit was within the Class Action Fairness Act, because the amount in controversy exceeded $5 million Molina filed a motion to remand, claiming that Lexmark knew the amount in controversy much earlier and failed to seek removal within the appropriate time period. Molina claimed it provided Lexmark with documents revealing the amount in controversy exceeding five million during mediation. Removal hinged upon the date at which Lexmark received notice of the amount in controversy, because a party must remove within thirty days after learning the amount in controversy, 28 U.S.C. §1441. Lexmark denied they learned the amount in


controversy at mediation. Alternatively, Lexmark argued, Folb’s mediation privilege precludes the use of communications during mediation. Ultimately, Molina limited Folb to its facts, holding that the mediation documents were admissible to determine whether removal was appropriate. Before applying their reasoning, the Court mentioned an alternative analysis which may further limit Folb in future cases. The Court opined, the privilege adopted in Folb only applies to“communications between parties who agreed in writing to participate in a confidential mediation,” The Court in Molina reasoned, Lexmark and Molina did not sign a confidentiality agreement prior to mediation, and therefore may be outside Folb’s scope. Therefore, even if the Court found Folb appropriately applied to the facts of Molina, the Court likely would have not applied the privilege due to the absence of a signed agreement. While this analysis is merely dicta, [and the decision is unpublished], it demonstrates the Court’s unwillingness apply the underlying spirit of Folb. This analysis provides other courts with a model to further distinguish Folb and limit its underlying purpose. Molina held, the duty of confidentiality is more applicable than a federal mediation privilege. The Court believed that confidentiality is analogous to the policies underlying Rule 408; the Court then proceeded to analyze the issue under the jurisprudence of Rule 408 rather than a mediation privilege. Rule 408 does not preclude the admissibility of settlement offers in order to show amount in controversy, because 408 is only meant to address fears of proving liability. Lexmark claimed, relying on mediation communication for removal would be “improper.” The Court rejected this argument, citing to a line of cases where parties rely on mediation communications to remove to federal court. In Molina, Judge Morrow examined the Jaffee factors for determining whether the Court should find a mediation privilege. The Court found the privilege would not advance confidence in mediation, because the privilege discourages plaintiffs from being candid with respect to the amount in controversy. Next, the Court found that the evidentiary benefit would be

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severe because it frustrates the timeliness of removal, giving the defendant a tactical advantage. Last, the Court limited the impact of Jaffee’s fourth factor, which examines whether admissibility of evidence would frustrate parallel state privileges. The Court opined, the consistency between jurisdictions with respect to the mediation privilege is scattered, and has been inconsistent for the past decade. See James Cohen & Peter Thompson, Disputing Irony: A Systematic Look at Litigation about Mediation, 11 HARV. NEGOT. L. REV. 43 (2006). Therefore, the Court did not fear frustrating parallel privileges, and the Court disregarded the fourth Jaffee factor. Although the Court in Molina dismissed the fourth factor based on the inconsistencies of the mediation privilege between the states, this analysis is not justified given the facts of Jaffee. The fact that all fifty states and the District of Columbia adopted a psychotherapist privilege was an important consideration for the Court in Jaffee. However, consistency between these state privileges was not as important as Molina indicates. Similar to the state mediation privileges, which have varying exceptions, the Court explained that the psychotherapist privileges varied with respect to their exceptions, and to whom exactly the privilege applied. The Court ultimately concluded, these discrepancies were insufficient to diminish the fact that all fifty states enacted a privilege. Identical statues were not essential, because a consistent body of law was sufficient to conclude that reason and experience dictated the adoption of a privilege. Although the states vary with respect to how they treat a mediation privilege, the states are consistent with their application of some form of mediation privilege. While increased horizontal consistency between the states would present a stronger justification for adopting a federal mediation privilege, the Court in Molina removed the fourth factor from the factual setting in Jaffee. This heightened requirement for consistency was an additional means for Judge Morrow to diminish the reasoning of Folb, and question the existence of a federal mediation privilege.

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It is increasingly confusing to determine the current law of the mediation privilege after Molina. Molina distinguished itself from Folb, because the underlying issue was amount in controversy, and the Court suggests there is a lower expectation of mediation confidentiality in the class action context. However, Molina did not simply try to establish a narrow holding that distinguished Folb. Rather, the Court made great efforts to demonstrate the dubious qualities of Folb’s holding. The Court concluded by stating, “[e] ven if such privilege exists, moreover, its scope and application are unclear.” Although the Ninth Circuit avoided the issue of the federal mediation privilege in Babasa, Molina looks to the Babasa footnote as an indicator that the Ninth Circuit is unwilling to create a federal mediation privilege. With Babasa as the controlling precedent, Folb’s relevance as the touchstone of the federal mediation privilege decreases in importance. The future of the federal mediation privilege is especially vague in the Ninth Circuit. Judge Paez, who adopted a federal mediation privilege in Folb is now on the Ninth Circuit. One wonders, as pioneer of the federal mediation privilege, will Judge Paez attempt to make Folb binding precedent in the Ninth Circuit. This is unlikely; Judge Paez has resided in the appellate court since 2000. Oppositely, has his silence since Folb allowed Judge Morrow in the Central District to be more comfortable in limiting Folb, despite Judge Paez’s presence at the appellate level. A publication that provides practitioners with litigation tips relies on Molina to assure litigators that a mediation privilege is not usually applicable. Don Zupanec, FEDERAL LITIGATOR: LAW AND MOTION, 24 No. 3 at 7 (March 2009). This demonstrates that Molina has real implications for the mediation privilege, and affects how attorneys view mediation.

V. SOLUTIONS The existence and scope of the federal mediation privilege is nebulous. As mediation continues to grow, more litigation will raise issues of what is or is not privileged. As complex parties from different

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regions of the United States see the benefits of engaging in mediation, there is a greater likelihood that more disputes will enter federal courts. Arguments both for and against adopting a new privilege have merit. However, the worse possible outcome for the courts would be the status quo, where predictability of a mediation privilege is impossible. The courts must strive more toward uniformity to maintain integrity in the mediation process. Consistency would encourage attorneys to recommend mediation to clients. With the current law however, some attorneys may notify clients of a mediation privilege, while other attorneys may advise clients that the privilege is obsolete. A. The States Should Uniformly Adopt The UMA An important consideration in the Jaffee four-factor test is determining whether a failure to adopt a privilege would frustrate parallel state privileges. The Court in Molina glossed over this inquiry, finding the fourth factor less important amidst the backdrop of immense inconsistencies between state laws. The Court concluded, the state mediation privilege statutes are so inconsistent, that no ruling could frustrate parallel state privileges. Molina exaggerated the influence of inconsistent state statutes to justify not adopting a privilege. The fourth factor is not a dispositive indicator of finding a privilege, and even the Court in Jaffee recognized that all states did not have the same psychotherapist privilege. While complete consistency between the states is not necessary, it is much more likely for the federal courts to adopt a mediation privilege if all the states had an identical privilege. With the diverse ways in which the states have treated the mediation privilege, federal courts have no guide for the appropriate contours of a mediation privilege. Courts are hesitant to craft their own common law privilege, especially with no precedent from a higher court, and with the recognition that any privilege must be “fleshed out over time.”93 Courts currently prefer their default presumption that evidence should be admissible, which is much more strongly rooted in Supreme


Court precedent. See, e.g.,Trammel v. United States, 445 U.S. 40, 50 (1980); United States v. Nixon, 418 U.S. 683, 710 (1974). Consistent with this analysis from Molina, if the states universally enacted the Uniform Mediation Act, predictability in the federal courts would greatly increase. In Jaffee, the Court enacted a psychotherapist privilege, in part because “all 50 States and the District of Columbus [had] enacted into law some form of psychotherapist privilege.” This analysis has influenced courts in ruling on other privileges as well. The D.C. Circuit rejected an opportunity to adopt a privilege for secret service officers, placing an emphasis on the fact that no other court has recognized a similar privilege. The Uniform Mediation Act has already been effectively implemented in many states, and the statute already has identified exceptions; the contours are not too ambiguous. Even if federal courts hesitate to follow the trend of adopting a mediation privilege, a widespread adoption of the Uniform Mediation Act would nonetheless increase consistency in the federal courts. The cases examined in this article address disputes where courts apply federal law. However, Rule 501 mandates, in diversity suits where state law provides the rule of decision, state law applies. Although this would not create a common law privilege, the federal courts would quickly become more comfortable applying the UMA’s privilege in diversity actions, which may eventually transition into an adoption of a common law privilege. During the mediation stage of a dispute, it is often difficult to predict whether state or federal law will apply in federal court. Even if the subject matter jurisdiction underlying the claim is pursuant to a federal statute, the court implements state law if state law applies the rule of decision. Therefore, if a party perceived a federal common law privilege, but the courts applied state law, a UMA application would not frustrate their expectation. Courts and attorneys will become increasingly familiar with the mediation privilege from the UMA in diversity actions in federal court, which may gradually encourage adopting a federal privilege.

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As shown earlier, federal courts have varied in their interpretation of the Jaffee test. In re Subpoena implemented a slightly different four-factor test from

is very different from the judicial enactment of a common law privilege.

Jaffee; In re Subpoena’s first factor was whether there is a broad consensus among state and federal law supporting the privilege. Similar to Molina, this Court sought a heightened degree of consistency between the states, which was not present in Jaffee. If federal courts applied this narrower interpretation of Jaffee, it is unlikely that a court would adopt a mediation privilege under current law. Even if more courts adopted a common law mediation privilege, the absence of widely adopting the UMA precludes any broad consensus amongst the states.

One may argue, judges should be very hesitant to create law, especially when Congress can draft a privilege. Congress can follow the example of the states that have legislatively adopted mediation privileges. Scalia explained in Jaffee, adoption of a privilege in all fifty states argues against creating a similar privilege judicially. State adoption of the UMA displays that not a single state thought it was appropriate to judicially adopt a privilege, and therefore the federal courts should wait for Congress as well.

While many federal courts may still differ on whether to adopt a mediation privilege, federal court inconsistency does not “preclude recognition of the privilege in question where the states have uniformly recognized that privilege.” See, New York Times v. Gonzalez, 382 F. Supp. 2d 457, 495 (S.D.N.Y. 2005). The Court in In re Subpoena specifically stated, the plaintiff must display a framework in state law for the privilege they ask the court to adopt. If the states unanimously adopted the UMA, this would greatly influence the courts, providing an already viable framework for the mediation privilege. Scalia’s dissent in Jaffee expressed his disapproval of the Court’s reasoning which formulated a new common law privilege. Courts that have rejected the federal mediation privilege have cited the Jaffee dissent as the touchstone of their reasoning. However, Scalia states, he would excuse the majority’s poor justifications if they relied on “the unanimous conclusion of state courts.” A comprehensive adoption of the UMA by the states would perhaps sway those courts that look to the Jaffee dissent in determining whether to adopt a privilege. Although it is possible that a statewide adoption of the UMA will sway the minds of federal judges, this is an uncertain and indirect route. While it may serve as a convincing argument for courts that look to Scalia’s Jaffee dissent, there is also a powerful rebuttal. State adoption of the UMA is a legislative act, made by elected representatives with deliberation in a democratic process. With legislation, those with interests in the underlying issue provide input, which Spring 2013, Vol. 22, No. 3

Although Scalia’s dissent is persuasive in that the states have enacted a privilege through the legislature rather than the judiciary, this argument is not consistent with Supreme Court jurisprudence. The majority in Jaffee explained, “[i]t is of no consequence that recognition of the privilege in the vast majority of States is the product of legislative action rather than judicial decision.” The Supreme Court has previously recognized that state statues indicate that reason and experience entered into the legislature’s policy determinations. Funk v. United States, 290 U.S. 371, 376–281 (1933). The Court further explained, the fact that state legislatures have enacted privilege statutes before the judiciary does not detract from their importance. The legislature did not draft these statues due to fear of judicially created privileges, but rather because the legislature found a compelling interest in adopting the privileges more rapidly. Courts should not hesitate to adopt a mediation privilege merely because a majority of the state legislatures believed the privilege was necessary for the integrity of the mediation process. While state legislatures adoption of the UMA may be an effective step toward creating a federal mediation privilege, it may not be the most efficient way to advance mediation. Legislatures are constantly faced with politically charged issues. Hundreds of bills die in committees each year, as they are bypassed by more pressing issues. If courts merely wait for legislatures to act, a federal mediation privilege may not come soon enough. Currently, only a fraction of the states have adopted the UMA. Even for the states

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that are willing to adopt the UMA, their state legislatures may be burdened with other matters. If the federal courts wait for all the states to adopt the UMA before adopting a federal mediation privilege, the courts may never adopt this common law privilege. A statewide adoption of the UMA is a lofty goal, which will not guarantee an adoption of a federal mediation privilege. However, it is a worthwhile goal, which will increase consistency between the states, and may contribute toward the adoption of a federal mediation privilege. B. Synchronize Rule 501 And The ADR Act The Alternative Dispute Resolution Act, 28 U.S.C. §652, instructs federal district courts to adopt local rules to apply confidentially in their dispute resolution programs. Despite Congressional effort to limit disclosure of mediation communications, the ADR Act is less significant when read in connection with Rule 501. Rule 501 instructs courts to follow common law when determining an evidentiary privilege, which supersedes local rules. Courts have continually held that §652 did not create a federal mediation privilege. The text of §652(d) does not mention a mediation privilege; it only instructs courts to “provide for the confidentiality of the alternative dispute resolution processes and prohibit disclosure of confidential dispute resolution communications.” The Court in F.D.I.C. v. White, 76 F. Supp. 2d 736, 738 (N.D. Tex. 1999), explained, the judiciary should not broadly interpret this confidentiality provision, especially when the legislative history does not indicate that Congress contemplated a privilege. Local rules drafted pursuant to §652 are also not relevant in federal court when state law provides the rules of decision. Although one may argue that Congress intended §652(d) to supersede Rule 501 in particular circ*mstances, Judge Brazil explains that if Congress intended this result, they would have been more deliberate. Congress gave each district court the power to enact local rules, and it is unlikely that if Congress sought to create a mediation privilege, they would have allowed every court to have its own variation of a privilege.


Due to the intersection between Rule 501 and §652, the local rules of a district court’s ADR program may promise a degree of confidentially which may in fact not exist. This inconsistency harms the predictability of mediation, and may dissuade parties from mediation. Local rules pursuant to §652 also present a problem if courts actually choose to adopt a mediation privilege. The Court in Sheldone outlined a privilege consistent with its local rules, but other courts have created privileges independent from local rules. Since local ADR rules may vary by court, two district courts may adopt a privilege consistent with local rules, but the privileges may vary in scope. In order to give meaning to §652(d) and increase preditability in mediation, Congress should synchronize Rule 501 and §652; there are a variety of different ways to synthesize these enactments. One solution is for Congress to amend Rule 501. Congress could make an exception to the traditional method of adopting of a common law privilege when local district court rules are in place. Rule 501 could state, “the privilege of a witness . . . shall be governed by the principles of common law as they may be interpreted by the courts of the United States in light of reason and experience, unless the district court has enacted local rules pursuant to a federal statute.” Under this hypothetical rule, when confronted with a mediation issue, the court would refer to their local rules rather than crafting a new common law privilege. In an unreported case in the District Court of the Virgin Islands, Nielsen-Allen v. Indus. Maint. Corp., 2004 WL 502567 (D.V.I.), the Court applied this method. This Court applied a mediation privilege from their local rule to preclude the use of mediation communication, and did not even address the common law privilege analysis under Rule 501. This synchronization would place attorneys on notice of how each specific court treats mediation communications through their local rules. This would not force judges to create common law, but rather act pursuant to a congressional mandate. This would give importance to the ADR Act and allow a deliberative decision making process in drafting local rules. It also would be much more comparable to the legislature adopting a privilege, rather than a judicially created privilege.

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Another method to synchronize §652 and Rule 501 is to require courts to adopt common law privileges pursuant to Rule 501, but expand their method of adopting privileges. Courts currently adopt privileges based on “reason and experience,” but Congress could amend Rule 501 to allow the Courts to consider “reason and experience and local court rules enacted pursuant to a federal statute.” Courts that are hesitant to adopt privileges, explain that creating common law privileges is counter to the goal of a fair trial that seeks an adjudication on the merits. This hypothetical amendment would help cure these reservations and ensure flexibility. This amendment gives Congress the power to decide what should be privileged, while also giving the courts some leeway in adopting their own rules. Essentially, this is the analysis the court in used in Sheldone. Through §652, Congress has already displayed a strong interest in keeping mediation confidential. This change to Rule 501 merely gives the congressional mandate more relevance. Flexibility is especially important in this context because as mediation has developed, the local rules enacted pursuant to §652 perhaps did not contemplate all the possible legal issues. The local rules will not dictate the court’s holding, but rather add another consideration to the Jaffee analysis, allowing a wavering court to more easily find a mediation privilege. A synchronization of Rule 501 with §652 however would prove very difficult and perhaps not drastically increase predictability. It appears very unlikely that Congress is willing to amend Rule 501 to address the issue of predictability in mediation. Congress specifically adopted Rule 501 to avoid the enumerated privileges that the Advisory Committee drafted. As Judge Brazil explained, it appears Congress “devoted no thought” to the relationship between §652 and Rule 501, and since the enactment of §652, it is likely that Congress has not considered the issue. Olam, 68 F. Supp. 2d at 1123. This proposed amendment would also disrupt the Supreme Court’s holding in Jaffee. The Court articulated its test for finding a privilege in Jaffee, and these changes to Rule 501 would either carve out exceptions to this rule, or supplement a new consideration to the Jaffee four-factor test. It is unlikely that Spring 2013, Vol. 22, No. 3

Congress will change a Supreme Court holding, especially when the reasoning from Jaffee is consistent with Congress’ intent with Rule 501 to judicially create privileges through common law reason and experience. A reliance on local rules would also not end inconsistencies because the local rules may vary. Courts may begin applying a wide array of different mediation privileges pursuant to the different local rules. The local privilege that the District Court of the Virgin Islands used in Nielsen-Allen was a very broad privilege; the only exception was to notify the judge if a party mediated in bad faith. This privilege offers more protection than the UMA, and this analysis displays that local rules will vary greatly in scope. If Congress sought to encourage a federal mediation privilege, it would be more beneficial to address the issue directly and uniformly through legislation. While a synchronization of Rule 501 and §652 may increase consistency in the mediation privilege, if Congress were to enact a change, they would likely choose a more direct route. C. Congress Should Codify A Federal Mediation Privilege Perhaps the best way to ensure stability and predictability in federal court would be a Congressional enactment of a federal mediation privilege. A statute codifying a federal mediation privilege would concretely define the boundaries of the privilege and end inconsistencies. With a federal statute, parties would enter mediation with knowledge of which communications are and are not privileged. This would make it much more likely that parties would be candid in mediation. Unlike the local rules pursuant to §652, a federal statue would be uniform. Parties would not be subject to judges and their personal views on whether a mediation privilege exists. In the Jaffee dissent, Scalia opined, the fact that all fifty states have enacted a psychotherapist privilege argues against enacting a privilege judicially. Scalia believes, state statutes demonstrate that the legislature is better suited to shape a privilege, because the legislature is flexi-

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ble and can respond to political pressure from interested parties. As the federal courts have shown, perhaps the judiciary is not the best way to enact a federal mediation privilege. Courts are split on whether to adopt a privilege, and those that have adopted a privilege are inconsistent with one another. A federal statue would appease judges who believe that a mediation privilege should exist, and mollify judges in favor of the legislative approach. Allowing the legislature to draft a solution could also reduce overlapping confusion between a mediation and settlement privilege. Congress could draft a statute consistent, and not in conflict with Rule 408, a fear that Judge Paez explained in Folb. The Uniform Mediation Act was drafted by a committee of experts in the field of mediation, with a strong interest in the future of mediation. This Act has proved very effective and has been successfully implemented in many states. This legislative method may be much more advantageous than a common law privilege. A federal common law privileges will not face nearly as much deliberation and debate by interested parties, and therefore it may be less viable. Perhaps the problem in Folb was that without proper deliberation and input from experienced mediators, the Court drafted an unworkable privilege. Another benefit of a congressional enactment is that it is much more efficient. Judicially created privileges may take years of jurisdictional splits which will only be resolved if the Supreme Court takes a case to decide the issue. With increasingly crowded dockets, it is unlikely that the Supreme Court will take a case pertaining to the federal mediation privilege soon. Even if the Supreme Court were to take a case, it is unclear how they will rule. The Court may follow the tone of Scalia’s dissent in Jaffee, that if the legislature wants to adopt this privilege, they should adopt it, rather than seek a judicially created privilege. Based on the overwhelming support and congressional consensus for the ADR Act, it is realistic that Congress will adopt a federal mediation privilege. The ADR Act passed by unanimous consent in the Senate and by a 405–2 margin in the House of Rep46

resentatives. In the House Report for the ADR Act, Congress explained, this legislation is necessary to curb the burden of high caseloads in the federal courts. A perceived benefit of §652 was that even with the funds needed to implement dispute resolution programs, the Congressional Budget Office believed increased dispute resolution would “yield some net savings in the costs of court administration.” A federal mediation privilege would be a fairly noncontroversial bill, which would increase the use and consistency of a program that Congress supports. In addition to the ADR Act, the United States has shown strong support for alternative dispute resolution through its effort in helping draft the UNCITRAL Model Law on International Commercial Conciliation. The UMA and the different versions adopted in the states greatly influenced the UNCITRAL Model Law. Article Ten of the Model Law explains that conciliation proceedings are not admissible, and that a court or tribunal cannot order such disclosure. Much like the justification for the privilege found in Folb and in state legislatures, the comment to Article Ten explains that its purpose is to “encourage frank and candid discussion in conciliation.” The United States’ participation in UNCITRAL and use of the UMA, which helped craft the United Nations’ Model Law, displays that the United States believes a privilege is important to the mediation process. A Congressional adoption of a mediation privilege would not be highly controversial, but rather a statute resembling the Model Law they helped draft. A mediation privilege is already present in most states and several nations have also adopted legislation based on the UNCTIRAL Model Law.140 The United States should follow the example of the states and the nations that have adopted this Model Law by adopting a federal mediation privilege which ensures candidness and consistency in mediation. The states that have successfully implemented a mediation privilege have done so with the legislature. Perhaps the last ten years of inconsistent holdings display that the legislature is the best method for adopting an evidentiary privilege. If Congress adopted a mediation privilege that resembled the UMA, predictability in the confidentiality of mediation

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Spring 2013, Vol. 22, No. 3

would increase even more. This would solve not only the horizontal discrepancy between the federal courts, but it would solve vertical discrepancies between the states which have enacted the UMA.

but explained, because mediation communications are often used for removal, it is an accepted practice. Common practice should not guide the courts’ precedent. Courts should address the issue and create precedent, so other courts do not rely on how others have ignored a potentially potent argument.

D. Courts Should Place A Premium On Consistency E. Courts Should Implement Sanctions The Cohen and Thompson study displays that evidence from mediation is often admitted, and the issue of whether a privilege exists is often not raised. To cure this problem, the courts should begin to address the issue more directly. The courts should encourage predictability and consistency, and only by creating precedent that explains their holding on whether a privilege exists will the law progress. Whether the courts reject or adopt a privilege, the courts should provide parties with a better understanding of their current jurisprudence. The Ninth and Fourth Circuit have both declined the opportunity to address the issue of whether a federal mediation privilege exists. In both these Circuits, the courts mention in a footnote that they need not address the issue at this time. In Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007) the parties did not raise the issue and therefore the Court assumed they waived it. In this situation, the appellate courts could have at least provided a cursory analysis for future courts to follow. Babasa was an appellate opinion in the Ninth Circuit where Folb was decided on the district level, and it should have at least indicated whether it had a general disposition toward the reasoning of Folb. Courts’ avoidance of the issue leaves the lower courts further divided and unsure how to interpret the mediation privilege. Although the attorneys raised the issue in the Fourth Circuit, the Court still avoided addressing the issue because they could decide the case more narrowly. A narrow holding in this instance halts mediation’s growth. As courts continually ignore the mediation privilege, consistency is less likely. In Molina, the Court disregarded Lexmark’s argument that relying on mediation communications for the amount in controversy would have been improper because of the confidentiality in the mediation. The Court did not address the merits of its assertion, Spring 2013, Vol. 22, No. 3

Disclosing privileged communication from mediation is not merely poor strategy, but it is an act for which courts may grant sanctions. The Cohen and Thompson study displayed that mediation communications are frequently used in litigation, and courts have taken no disciplinary action to discourage this conduct. Courts could reduce the continual use of privileged communications by using their authority to grant sanctions. The legislature could also cure this attorney oversight by drafting a statute, which directly places attorneys on notice that courts can grant sanctions for the use of privileged mediation communications. Currently, only a Florida statute directly allows courts to grant sanctions for improperly using mediation communication. However, the Florida statute is limited because it requires parties to act knowingly and willfully. To more affirmatively place attorneys on notice of the importance of keeping mediation communications confidential, courts should use their authority to grant sanctions in federal court. Rule 11 of the Federal Rules of Civil Procedure grants courts the broad authority to sanction parties for submitting documents for “any improper purpose.” Federal judges could begin using Rule 11 as their basis for granting sanctions against parties that rely on privileged mediation communications. With the increasing use of mediation and a general recognition that communications during the process are confidential and potentially privileged, it is not unreasonable to conclude that their use is improper. This broader interpretation of Rule 11 would be an effective mechanism to alter the problematic frequency with which attorneys use mediation communications in litigation. As Cohen and Thompson demonstrate, attorneys are continually failing to raise

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the privilege in the adversarial setting. Therefore, courts may have to display that confidentiality in mediation is crucial enough to warrant attorney sanctions. The UMA addresses the issue of a party improperly using mediation communications during litigation, but the UMA does not give courts the authority to grant sanctions. Instead of sanctions, the UMA allows an opposing party to use the mediation communications to controvert the improperly used evidence. Professor Cole explains that the position taken by the UMA should go farther than a mere right to rebuttal, which is consistent with the right of rebuttal from the Uniform Rules of Evidence. A privilege is more robust and warrants more protection than a mere violation of an evidentiary exclusion. Therefore, Professor Cole explains, the drafters should amend the UMA to provide for sanctions, as opposed to merely the right of rebuttal. If not pursuant to a specifically tailored statute or Rule 11, federal courts may also adopt local rules to place attorneys on notice that courts will grant sanction for using privileged mediation communications. The ADR Act instructs district courts to adopt local rules to ensure confidentiality during the mediation


process. 155 Pursuant to this statute, courts may expand their local rules to explicitly grant themselves the authority to issue sanctions. Even if courts are reluctant to actually grant sanctions pursuant to this local rule, the mere drafting of a sanctions provision will display the importance of confidentiality during mediation. Even in jurisdictions that are hesitant to adopt a federal mediation privilege and prefer to only have the communications confidential, a local rule shows that the courts are placing a premium on confidentiality. If courts drafted a sanctions provision pursuant to §652, it would display that courts respect Congress’ desire to protect communications during mediation, and that attorneys should be weary of using them freely.

* Joseph Lipps practices law at Bailey Cavalieri, LLC in Columbus, Ohio. This article appreared originally in the American Journal of Mediation, published by the American College of Civil Trial Mediators. It is republished with the permission of the of both the Journal and the Author.

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Spring 2013, Vol. 22, No. 3

Mass Disaster Mediation: Innovative ADR, or a Lion’s Den? Elizabeth Baker Murrill,* Summarized by Michael Shoenfelt**



In the wake of natural disasters or other catastrophic events, relatively unsophisticated victims are often left to negotiate with highly savvy insurance representatives. The difference in bargaining power between the two creates a proverbial Lion’s Den for victims. Alternative dispute resolution (ADR) is becoming a favored tool to resolve mass torts or mass claims. Mediation, in particular, has been used as a method to settle many claims in a short amount of time. Little has been said, however, about the tradeoffs that are made in exchange for this efficiency. When a preexisting imbalance in bargaining power is added to external pressures and the internal psychological impact of a disaster, there is an increased risk of coercion and lack of informed consent by victims. This problem requires thoughtful process design to minimize bargaining power disparity and protect the integrity of the process. Mass disaster mediation programs have been put in place for disasters like Hurricane Andrew, the Northridge earthquake, and Hurricanes Katrina and Rita, among others. In mass disasters like these, there are always external pressures: political, cultural and economic considerations that provide the context in which the programs exist. Further, the victims of the disaster bring their own set of psychological responses to the table, affecting their ability to bargain and make decisions. These external and internal factors have implications that must be addressed by both system designers and mediators in a mass disaster mediation program. As the use of these programs continues, thought must be given to these factors in order to ensure that the programs effectively achieve their goal of speeding up recovery from the disaster. Spring 2013, Vol. 22, No. 3

The American Arbitration Association (AAA) pioneered mass mediation in 1992 in the wake of Hurricane Andrew. That hurricane caused nearly $30 billion in damage, and generated approximately 25,000 insurance claims. The AAA program, created at the request of Florida’s Department of Insurance, was able to process 2,400 claims. Of those claims, 92% were settled within one year. Following this example, similar programs were instituted after the 1994 California Northridge earthquake, 1992 Hurricane Iniki, and a 1998 flood in Grand Forks, North Dakota. Hurricanes Katrina and Rita provided yet another opportunity for mass mediation. The hurricanes struck within three weeks of each other in 2005, with significant overlap in the populations they affected. The states of Mississippi and Louisiana suffered the brunt of both storms, with the result being near total destruction of the states’ Gulf Coast. Both states instituted mass disaster insurance mediation programs during the recovery. III. EXTERNAL FACTORS CREATING IMBALANCES IN POWER AND INCENTIVE TO BARGAIN External factors play a crucial role in the dynamics of mass mediation. In the cases of both Katrina and Rita, victims shared common legal issues relating to insurance coverage and whether or not insurers were obligated to cover damages caused by the storms. Litigation ensued in Louisiana and Mississippi. In each state, the uncertainty of the resolution of the legal issues incentivized victims and insurers alike to settle claims through mediation. Even if victims were to win on the coverage issue, they were still confronted with issues of proof of damages. The storm wiped out many homeowners’ proof of owner-

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ship and kept them away from their homes for months, making it difficult to prove the value of their property.

by a catastrophe struggle to return to any kind of normalcy. Without any support system on which to rely, the effects can be lasting and pervasive.

Insurance companies, on the other hand, faced nearly 700,000 claims valuing hundreds of billions of dollars. In the face of such staggering numbers, many insurance companies might have fared better in litigation. This fact reduced the incentive for insurance companies to bargain. Furthermore, the insurance companies could afford a slow and expensive process: luxuries their policyholders did not have.

In mass mediation programs, mediators and insurance representatives enter this psychological arena, and are frequently the targets of enraged, disillusioned, and resentful victims. Mass mediation programs ask people who have lost their property, social relationships, and livelihoods to put their trauma aside and make rational decisions about their future. Regardless of this expectation, the stresses that victims feel impair cognitive and decisionmaking ability.

Each state’s individual reaction to the coverage issue is another external factor that impacted mediations. In Mississippi, the state sought to void clauses in insurance policies that would exclude hurricane-related coverage. In Louisiana, private litigation posed the coverage question. Along with these private suits came the risk of conflicting decisions requiring resolution at the appellate level. Thus, while the programs in Louisiana and Mississippi stemmed from the same event, were administered by the AAA, and were structured the same, the different legal environments created different bargaining pressures. IV. INTERNAL FACTORS: THE PSYCHOLOGICAL IMPACT OF A CATASTROPHE Psychological effects on victims accompany every disaster. These effects, beyond any public health implications, play an important role in the mass mediation process. Decision-making capacity and state of mind are altered in a way that, if not accounted for, can compromise the integrity of the mediation process. While victims of mass disaster are not the only people who suffer from some kind of mental trauma that impairs capacity, they are unique in one sense: a mass disaster can destroy an entire community. With the physical destruction comes the tearing apart of the whole social fabric; the razing of society. This loss of community further limits individuals’ ability to respond and cope with the disaster. Unlike victims of personal tragedy, those who have had their entire community ripped away from them 50

The fact that many mass mediation programs design individual mediations to take roughly two hours adds an additional pressure: time. In under two hours, victims are asked to process both emotional and actual information. Individuals can often feel overwhelmed, and their ability to make accurate decisions diminishes. Thus, with the emphasis on speed and efficiency in the mediations, individuals often see outcomes that are less beneficial than they might have been able to realize without the time pressures. The fact that policyholders typically need to reach an agreement (to begin rebuilding their lives) more than the insurance company needs an agreement further exacerbates this time pressure. Without an agreement, the insurance company puts off their payout and saves money. V. IMPLICATIONS FOR SYSTEM DESIGNERS AND MEDIATORS Mass mediators and mass mediation designers need to take the trauma of a disaster into account when conducting or designing a mass mediation program. While it is necessary that a system be designed to resolve claims quickly, this cannot be the sole focus of the program. Instead, the process must be designed in such a way to maximize effective and fair decision-making. One additional end goal of these programs must be for the program to contribute to the broader recovery, both at the individual and community levels. It is crucial that parties in the mediation process do not leave feeling that they were, again, victims.

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Spring 2013, Vol. 22, No. 3

From the mediator’s standpoint, a mediator must be able to recognize when a party is cognitively impaired and know how to adapt accordingly to preserve a fair process. Beyond basic human considerations, the law’s requirement that a contract not be negotiated under duress provides a legal incentive to maximize cognitive and decision-making fairness. In the case of mass mediation programs, this may require advanced training. One option at a mediator’s disposal when dealing with a traumatized party is to allow the party to ventilate. Though mediators are not trained psychologists or psychiatrists, allowing the frustrated party to vent (either to the mediator or the insurance representative) about his or her losses can often make the mediation more productive. Without this ventilation, mediators may face another challenge: that the impaired party comes to rely on the mediator’s judgment. This challenge, if not properly handled, can compromise the mediator’s neutrality and handicap the entire mediation. At the very least, a mediator in this position should be empowered to end or reschedule the mediation. Another option would allow parties to use an advocate in mediations at no cost, giving the individual someone other than the mediator on whom they can rely for advice. This advocacy assistance is particularly critical for mass mediation programs. Though it has not been a part of any mass insurance mediation program to date, it should be an included element going forward. There is an adequate supply of advocates, and the program could reach out to law schools, state agencies that focus on dispute resolution, or non-profit organizations to provide advocates for victims. VI. CONCLUSION Disasters like Hurricane Katrina destroy entire societies. These disasters push people to the edge of their emotional and cognitive capacities. Designers of mass mediation systems must tailor their systems to these unique environments. Mediators in these programs should be specially trained. Parties should be educated about what to expect in their mediation. Ultimately, the program should be built to compensate for the enormous stress that parties feel. Spring 2013, Vol. 22, No. 3

Law schools are a potential resource in this effort. Law students could educate parties, act as advocates, and generally gain experience in client relations and negotiation. To date, though, no mass mediation program has taken advantage of the potential for law student and law school interaction. Finally, there has been little analysis of mass mediation programs following their completion. While the programs have universally good reviews because they settle many claims, there has been no qualitative analysis of their success. Future studies should look to party satisfaction and selfdetermination. Above all, the question for these analyses must be whether or not the programs made positive contributions to the recovery at the individual and community level. With no published studies about user satisfaction after using the mediation programs, it is difficult to fully evaluate the programs. Still, the programs show much promise despite the potential for power imbalances to negatively affect the outcome of the mediations. With this in mind, it is imperative that the claimants are educated when using mass mediation programs. Bar associations and law schools could, cooperatively, aid in this process by providing educational seminars, preliminary claims evaluation, and/or advocacy at the bargaining table. While many of the internal factors that diminish decision making capacity are unchangeable, enhancing education and representation will positively impact the mediation climate, settlement rate, and degree of party satisfaction. * Elizabeth Baker Murrill is the Executive Counsel, Division of Administration, Office of the Governor, State of Louisiana. She previously practiced law in the private sector and served nine years as an assistant professor of Professional Practice at LSU Law School. Her first law degree was from LSU (1991), where she served as editor -in-chief of the Louisiana Law Review. She also earned a master's degree in dispute resolution from Pepperdine University Law School (2010). ** Michael Shoenfelt is a 3L at The Ohio State University Moritz College of Law. After graduation, he will work for Vorys, Sater, Seymour and Pease LLP in its Columbus office ( Labor & Employment group).

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Carbon-Free CLE: The Example of the Winning Settlements Workshop By Michael Palmer, J.D., Ph.D.*

About 10 years ago, CLE providers began offering CLE programs over the Internet. Most of these programs were either video recordings of presentations given in a conference room or, more recently, a conference call or webinar broadcast to hundreds of people simultaneously. These kinds of CLE programs make it possible for legal professionals across the country to tap into expert knowledge that may not be available locally. But the broadcast webinar is a passive medium, much like radio or television, that severely limits interaction among participants. Most people see such programs as an imperfect substitute for actually being in the room. It is not surprising that the level of engagement in such programs is mixed, as some participants check email, surf the web, and attend to other matters with the speakers relegated to the status of background music.

A Better Medium for Better Content American businesses spend over $1 billion a year on corporate training, an increasing amount of which pays for a sophisticated learning management system (LMS) and training resources. Pioneered for academic institutions, online LMS platforms typically provide the ability to upload video and audio presentations, administer quizzes, set up discussion forums, conduct surveys, track participation, automatically award certificates of completion, create games, use other Internet resources, and make other digital content available to participants. Some systems enable organizations to create inhouse social media systems, where every employee 52

can have a personal page, create discussion groups for individual projects, share files, and more. For several years, in partnership with Global Classroom, a premier learning management system platform, I have provided corporate ethics training through Ethics By Design’s Carbon-Free College™. This work has included courses on professional ethics, harassment prevention, creating a code of conduct, fraud prevention, government contracting, and promoting and protecting personal integrity.

Winning Settlements Online? Since 1992 I have also conducted onsite workshops on settling lawsuits, the most recent version of which is The Winning Settlements Workshop. When colleagues urged me to make a new version of The Winning Settlements Workshop available, I investigated the feasibility of delivering that content online, using the Global Classroom platform. Since this workshop has always involved simulation exercises, it was not immediately apparent that we could obtain comparable educational results in a virtual environment. The biggest challenge with online learning is finding ways to overcome passivity. The most effective learning occurs when participants . . . well, participate . . . by engaging in relevant activities, doing things that help them make the new material part of their repertoire of knowledge and skills. The many different resources of a good learning management system provide the means for doing that. Actually pulling it off requires good instructional design.

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How It Works Sponsored by the Vermont State Bar, the Winning Settlements Workshop focuses on interests and financial value. It helps litigation professionals become more proficient at: (a) understanding the litigation-related interests of the parties and interested stakeholders and (b) estimating the financial values of a lawsuit from each side’s perspective. The workshop introduces participants to the Win Before Trial method of achieving a client’s litigation -elated interests. This method includes tools and techniques for (a) discovering, understanding, and recording interests, (b) calculating the financial value of a lawsuit, (c) developing a litigation strategy, and (d) writing a settlement plan. The ultimate goal is to assist lawyers and their clients in making better decisions when choosing between the adversary’s settlement proposal and the litigation alternative. The aim is to help lawyers and clients know which better satisfies the client’s interests—the deal or the ordeal. To achieve the learning objectives, we had to create resources for the online workshop that succinctly present the theory and provide opportunities to use the tools in a simulated setting. We were looking for a way to get participants involved in using the method much as they would if we were working with them on one of their own cases. It would not be enough to tell them about the Win Before Trial technology. Even showing them how it worked, while better, would not be the best solution. We needed a way to have them actually use it—at least to some degree—and to communicate with others about what they learned in the process. The Global Classroom platform makes it possible to create a variety of resources for this purpose.

Devices (HWD), a manufacturer of blood pressure monitors, digital thermometers, and other medical instruments. Kristin claims that George Templeton, the Vice President of marketing at HWD, pressured her into having sex with him as a condition of receiving salary increases, bonuses, and other jobrelated benefits. (George emphatically denies Kristin’s allegations.) If true, Kristin’s claim could be the basis for a quid pro quo harassment suit against Health Welfare Devices. Kristin is represented by Erica O’Connor, a partner in a small firm that specializes in employment law. In-house counsel for HWD is Sarah Kim. Workshop participants read transcripts and summaries of Erica O’Connor’s initial meeting with Kristin, Sarah’s investigation and interviews of people at HWD, and Erica’s second interview of Kristin, which focuses solely on discovering her litigationrelated interests. At this point, participants watch a video on the four basic types of litigation-related interests and the tools used for discovering, recording, and analyzing those interests. They then complete a survey on Kristin’s tangible and intangible interests. In a live workshop, each of the survey questions might elicit 1-3 responses from a group of 15-20 people, which would lead to further discussion. But most workshop participants would not say much. In the online version, however, every participant is prompted to answer the questions, and, once they have completed their responses, they get to see the answers of everyone else. As a result, the variety of responses is richer than what is typically the case in an onsite workshop. For example, the participants in one edition of the workshop submitted the following responses to the fourth question: Which of Kristin's lawsuit-related intangible interests could potentially be satisfied by something that Health Welfare Devices or an agent of HWD could do?

Discovering Interests To create resources for applying the method, I wrote a fictional sexual harassment case, Svensson v. Health Welfare Devices. Set in Pennsyltucky, the case pits Kristin Svensson, a former senior manager in the marketing department against Health Welfare Spring 2013, Vol. 22, No. 3

referrals and dealing with her record acknowledge wrongdoing, and adopt harassment policy

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The embarrassment and humiliation could perhaps be addressed through an acknowledgement that she was treated poorly and an apology. If there were an attempt to provide training to employees to prevent harassing behavior in the future that may provide some satisfaction. Her interest to make sure that this doesn't hap pen to another employee can be addressed by HWD if it put a clear anti-harassment/antiretaliation policy in place. HWD can also put in proper training and a reporting process. Her in- terest in of achieving justice and pro tecting her dignity could be accomplished by HWD if it fires George and rehires her. Her employment history and reputation. Getting a good reference. Counseling. Addi tional training for employees on harassment. Can restore some reputation and respect by reinstatement or assistance in finding comparable job elsewhere. Apology; reprimand of the boss Since every participant can access the resources at any time and from any computer or mobile device, each can submit her thoughts as long as the workshop is open. More importantly, anyone can create a separate discussion forum in which participants can comment on each other’s ideas further, thereby creating an in-depth brainstorming experience. The questionnaire demonstrates how lawyers can use free online survey tools quickly and inexpensively to gather opinions from colleagues, friends, and relatives about different aspects of a lawsuit. Estimating Financial Value To use the Win Before Trial method of case valuation, litigation professionals estimate values for each of the four major components of case value: liability, damages, outstanding dispositive contingencies, and remaining costs. 54

To compute the net present financial value of a case for the plaintiff, we multiply the probability of a liability finding times each known remaining contingency times the projected weighted average damage award and subtract the remaining costs to project the value at the time of a final judgment. We then discount that number to the present. The formula for the defendant is the same with one significant change. Defendants add their remaining costs instead of subtracting them. Obviously, the accuracy of the estimated values for each of the components is critical. Garbage in = garbage out. The Win Before Trial resources include templates for gathering information with which to make better estimates. For example, with the elements template, litigators list each of the elements of each cause of action, review the evidence, arguments, and other factors that relate to the likelihood that a jury will rule in plaintiff’s favor on that element, make a low, medium, and high estimate of probability, and average those probabilities. Working through this process can take anywhere from 30-45 minutes for a back-of-the-envelope estimate to several days or even weeks for highly complex cases involving multiple causes of actions, affirmative defenses, counterclaims, and dispositive motions. Using our online workshop tools, we provide recorded presentations of the theory and demonstrations of the tools and techniques for implementing the method. We also set up exercises in which participants use the tools to practice the method themselves. Comparison of Online and On-site Workshops One of the main advantages of the online workshop over the onsite version is the ability of the participants to access, watch, read, and practice the content in chunks. In the onsite workshop, we have to present the theory and practice the simulations all within an 8-hour stretch. Because so much of it is new, some participants have difficulty assimilating the method during the onsite workshop, which means they are less likely to use it later unless they have further help.

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But with the online version, participants can watch, practice, watch again, watch only parts of a video, practice again, rewind, post questions in the discussion forum, try out the tools on their own cases, post additional questions to the discussion forum, and so on. And they can do this on weekends, in hotel rooms, at home, or at the office, whenever they have some free time. This eliminates the need to take a day off from work, travel to a hotel, purchase restaurant meals, and return to the office. The Best of Both The primary benefit of onsite workshops is face-toface interaction with both the instructor and other participants. Working in small groups around a table is a more intense experience than posting questions and answers in a discussion forum. The learning experience is more emotionally powerful, making it stickier. To get the benefits of both online and onsite workshops, we are developing what the training industry calls a blended learning program. In this version, participants will have full access to the online materials where they will become familiar with the theory and the tools. Then they will come together in a classroom setting where they can practice using the tools and techniques in simulated cases. A Model for More Effective CLE Programs? The Winning Settlements Workshop could become a model for other CLE programs. The Carbon-Free

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College™ is exploring potential alliances with bar associations and other CLE providers to develop robust programs that provide more bang for the lawyer’s buck. These new programs could possibly contribute to a higher quality of legal services in the bargain. * Michael Palmer, a native of Pampa, Texas, has been a lawyer and dispute resolution professional since 1980, first for Jenner & Block in Chicago and then as head of his own firm in Middlebury, Vermont. He founded Win Before Trial to provide strategic litigation support services to litigation professionals and their clients. The firm focuses on the financial valuation of lawsuits as part of a settlement strategy designed to help lawyers get the best deals for their clients. As part of the Win Before Trial case valuation toolkit, Mike invented the Case Valuation Analyzer™ which handles complex computations and what-if analyses. Mike has made frequent presentations to ABA Dispute Resolution Section and Litigation Section conferences, bar associations, and insurance companies. The Winning Settlements Workshop introduces litigation professionals to the basics of developing a winning litigation strategy and includes an electronic copy of Mike’s book, Winning Settlements: What Courtroom Lawyers Must Know and Do to Get the Best Deals for their Clients. He can be reached at: [emailprotected] and (802) 870 3450.

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THE LATEST ON ARBITRATION By Lionel M. Schooler* In this edition, we cover new arbitration issues recently decided by the United States Court of Appeals for the Fifth Circuit, the Texas Supreme Court, and the Texas Courts of Appeals, pertaining to the following issues: (a) Abstention versus right to compel arbitration; (b) Scope of arbitration clause to reach a dispute; (c) When is an arbitration agreement so one-sided as to be substantively unconscionable?; And (d) Primacy of the arbitrator, or the court, as gatekeeper of arbitrability and related issues? PRIMACY OF ARBITRATION OVER ABSTENTION In a factually convoluted case, Saucier v. Aviva Life and Annuity Co., 701 F.3d 458 (5th Cir. 2012), the Fifth Circuit considered in this reporting period the issue of primacy of an arbitration clause in the face of invocation of a request for abstention. Mr. Saucier suffered personal injuries and then settled the resulting lawsuit in 1990 by receiving an annuity, which called for payments every five years through 2015. As is increasingly common these days, Mr. Saucier entered into a transaction with a “structured settlement company” (RSL) whereby he sold his right to future payments for a lump sum from that company. The agreement underlying this transaction contained an arbitration clause. A dispute arose about the enforceability of this arrangement under Mississippi’s Structured Settlement Protection Act, with a Mississippi state court determining in 2009 that RSL had failed to comply with the MSSPA, voiding the transaction. RSL then initiated an arbitration proceeding in 2010, claiming breach of contract by Saucier. Saucier countered this 56

maneuver by seeking a restraining order prohibiting RSL from proceeding with the arbitration. Mr. Saucier then learned that the annuity company responsible for periodic payments (Aviva) intended to defer payment of the 2010 installment of $150,000 until the state court resolved the issue of damages owed by Saucier to RSL. This prompted Mr. Saucier to sue Aviva in Mississippi state court for a declaratory judgment that he was entitled to timely payment of the $150,000. Aviva removed this lawsuit to federal court and counterclaimed on the basis of interpleader, seeking the joinder of RSL as a potential stakeholder to the proceeds in question. Mr. Saucier challenged the removal and requested that the federal court abstain from the case and remand it to state court. The district court declined to do this, upholding the removal and staying the case pending resolution of the state court litigation. It also granted the request to add RSL as a party. Once sued in the federal court, RSL filed a motion to lift the stay to permit the filing of a motion to compel arbitration of its dispute with Mr. Saucier. The district court denied this request. Thereafter, RSL filed a motion to compel arbitration. The district court responded that Mr. Saucier did not need to respond to this motion until after the stay was lifted. RSL then filed a second motion requesting a formal ruling on the motion to compel. The district court then sua sponte reconsidered its prior rulings, and decided to abstain from hearing the case, remanding it to state court. Simultaneously, the district court granted Mr. Saucier a permanent injunction prohibiting RSL from arbitrating its dispute with him. On appeal, the Fifth Circuit rejected the district court’s concerns over “piecemeal litigation” as a sufficient justification for abstention. It noted that piecemeal litigation is inherent with arbitration agreements, and also that in this case enforceability

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of an arbitration agreement presented the most immediate question before the district court. It therefore reversed the district court’s abstention and remand and directed it to consider promptly RSL’s motion to compel arbitration. BREADTH AND SCOPE OF AN ARBITRATION AGREEMENT In this reporting period, the Texas Supreme Court issued one arbitration decision, Richmont Holdings, Inc. v. Superior Recharge Systems, L.L.C., 2013 WL 276063. The Richmont Holdings case involved the familiar scenario of a purchase and sale of a business, with a companion agreement by the purchaser to employ the principal of the seller for a specific period of time. In this case, therefore, there were two agreements, an asset purchase agreement (which contained an arbitration clause), and an employment agreement (which did not contain an arbitration clause).

ceded to the Court that the underlying dispute did implicate the asset purchase agreement as well as the employment agreement. It therefore reversed the ruling of the Court of Appeals on the issue of the existence of an enforceable agreement to arbitrate, and remanded the case for consideration of the waiver defense. SUBSTANTIVE UNCONSCIONABILITY OF AN ARBITRATION CLAUSE The Eastland Court of Appeals confronted the question of substantive unconscionability of an arbitration clause in its recent decision in Venture Cotton Cooperative v. Freeman, 2013 WL 163798. In Freeman, cotton farmers entered into an agreement with the Cooperative to sell cotton. The agreement called for binding arbitration pursuant to the rules of the American Cotton Shippers Association. The arbitration clause further recited as follows:

After Richmont Holdings purchased the assets of Superior Recharge Systems, it agreed to employ Mr. Blake, an owner and manager of Superior Recharge. The term of employment was two years, and the employment agreement contained a non-compete clause. As is typical in these transactions, both agreements were signed the same day. Mr. Blake’s employment was terminated six months later, and he sued for damages and for the cancellation of his covenant not to compete, claiming fraudulent inducement. Richmont Holdings responded to the lawsuit but waited more than 18 months after that before moving to compel arbitration. When it did seek arbitration, the trial court denied the motion on the basis of waiver. On appeal to the Court of Appeals, that Court held that Richmont Holdings had failed to demonstrate the existence of an applicable arbitration clause, because the dispute in question focused exclusively upon the employment agreement, which contained no arbitration clause. On review, the Texas Supreme Court found, first, that Richmont Holdings had submitted the asset purchase agreement with its motion to compel, an agreement that clearly contained an agreement to arbitrate. It noted, second, that Mr. Blake had conSpring 2013, Vol. 22, No. 3

“In the event of breach of this Agreement by Producer (the farmer), Producer agrees to pay all arbitration and court costs, if any, and the reasonable attorney’s fees and litigation and arbitration expenses of Venture.” The overall agreement also contained the following language: “The awards [in arbitration] shall be limited to the monetary damages arising out of the failure of either party to perform its obligations pursuant to the contract as determined by the Arbitration Committee and shall not include attorney’s fees unless provided for in the contract.” The trial court denied the motion to compel arbitration under the Federal Arbitration Act (“FAA”) on the basis that the arbitration clause was unconscionable and, therefore, unenforceable. The Cooperative appealed that decision to the Eastland Court of Appeals.

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The Court of Appeals agreed that the Agreement was substantively unconscionable, that is, “so onesided that it is unconscionable under the circ*mstances existing when the parties made the contract.” Freeman at 2, citing In Re First Merit Bank, 52 S.W.3d 749, 757 (Tex. 2001). It determined that the provision restricting recovery of attorney’s fees contravened TEX. CIV. PRAC. & REM. CODE §38.001, because it barred recovery by one party even if it prevailed; and that the contract as worded prohibited the farmers from recovering damages and attorney’s fees under the Texas Deceptive Trade Practices Act, and was thus unconscionable for that reason as well. PRIMACY OF THE ARBITRATOR OR THE COURT AS GATEKEEPER OF ISSUES RELATED TO ARBITRABILITY In Al Jones v. Mainwaring, 2012 WL 6643898, the Beaumont Court of Appeals recently addressed questions pertaining to the primacy of the court or the arbitrator as the arbiter, in the first instance, of certain gatekeeper issues. Mr. Jones was an architect hired (along with his company) by the Mainwarings to design and supervise the construction of their new home. The architectural agreement signed by the parties contained the following clause: “Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration.” The Agreement also contained a choice-of-law provision specifying that Louisiana law would govern.

The Beaumont Court first noted that the record indicated the existence of an agreement to arbitrate. It then turned to the contention concerning the unenforceability of the arbitration clause because of Mr. Jones’ alleged status as an unlicensed Texas architect. The architect argued, and the Court agreed, that the arbitration clause was severable from the remainder of the Agreement, citing the U.S. Supreme Court’s recent decision in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 449, 444-45 (2006). It was therefore separately enforceable, and supported the arbitrability of the existing disputes, because it would be for the arbitrator to determine in the first instance the impact, if any, of Mr. Jones’ license status upon the enforceability of the entire agreement. The Court finally turned its attention to the issue of the impact of the choice-of-law provision on enforceability of the arbitration clause. The Mainwarings contended that the Agreement undercut their substantive rights as homeowners under Texas law. The Court noted, however, that choice-of-law provisions are generally enforceable. It further noted that this provision related to the overall Agreement, and not specifically to the arbitration clause. It thus ruled that the issue of the unconscionability of this provision was arbitrable.

The Mainwarings became aware of various problems with their home during construction. Therefore, they sued the architect, his company, and several other defendants seeking damages, fees and costs. The architect and his company requested the court to enforce the arbitration clause in the Agreement. In response, the Mainwarings contended that the clause was not enforceable because when the parties had signed the Agreement, Mr. Jones was not licensed to practice architecture in Texas. Further, they contended that the Louisiana choice of law provision was unconscionable. The trial court denied the motion to compel arbitration, triggering an appeal by Mr. Jones.


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* Lionel M. Schooler is a Partner in the Houston office of Jackson Walker L.L.P. and the 2012 co-recipient of the Justice Frank Evans Award conferred by the Section. Mr. Schooler is a frequent writer and speaker on the topic of arbitration.

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ETHICAL PUZZLER By Suzanne M. Duvall* This column addresses hypothetical problems that mediators may face. If you would like to propose an ethical puzzler for future issues, please send it to Suzanne M. Duvall, 4080 Stanford Avenue, Dallas, Texas 75225, or fax it to214-368-7528. ***************************************** As a pre-eminent mediator, you have received a call from a family law attorney in your area seeking your advice as to remedies/ethical issues available to her and her client based on the following circ*mstances: Parties and their counsel decided to try and settle the disputes in their divorce through mediation and mutually agreed to use as their mediator a former Family Court judge in which they all had agreed had a great degree of confidence. The case, involving both custody issues and the division of the marital estate settled at mediation. Parties and their counsel signed a Mediated Settlement Agreement, prepared by the mediator incorporating the terms of the settlement, agreed to by the parties. In addition, the Mediated Settlement Agreement had some “boiler plate” language which stated in part; In the event that a dispute should arise as to either the form or the content of this agreement, the parties agree to return to the mediator for arbitration and further agree to be bound by the arbitrator’s decision.” Subsequent to the mediation a disagreement arose between counsel involving a few minor drafting issues. Pursuant to the terms of the Mediated Settlement Agreement, parties and counsel returned to the mediator to arbitrate these issues. After the arbitration the mediator/arbitrator issues an Award that encompassed changes not only on the drafting issues, but also, in both the property division and the childSpring 2013, Vol. 22, No. 3

related issues previously agreed to between the parties in the mediation. What advice do you give counsel as to (1) her remedies and those of her clients and (2) what ethical breaches, if any are involved? Brian Shannon, (Lubbock): Advice re remedies. A challenge based on the ground that the same person served as arbitrator who first served as the mediator may have little likelihood of success given several Texas courts of appeals decisions. This type of challenge was overruled in Provine v. Provine. 312 S.W.3d 824, 830 (Tex. App-Houston [1st. Dist.], no. pet. 2009) (holding that mediator may later serve as arbitrator if parties consent; divorcing couple expressly consented to selecting the same person a mediator and arbitrator in agreement). Accord In re Cartwright, 104 S.W.3d 706, 714 (Tex. App.Houston [1st Dist.], no. pet., 2003) Mann v. Mann, No. 04-07-00154-CV, 2008 Tex. App. LEXIT 1570, a *2 (Tex. App.—San Antonio Mar. 5, 2008 pet. Denied) (parties consented by executing the Mediated Settlement Agreement ). Alternatively, counsel might consider trying to vacate the arbitration award under Section 171.088(a) (3)(A), Texas Civil Practice & Remedies Code. That subsection provides a basis for seeking to have an arbitration award vacated if the arbitrator exceeded his or her powers. Although the disputes clause in the agreement is broad and purports to allow the arbitrator to make determinations relating to disputes

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about “either the form or the content” of the Mediated Settlement Agreement, counsel should contend that the only dispute about the Mediated Settlement Agreement related to form and minor drafting issues — not substantive decisions regarding the property division and the children. Just because there was some level of disagreement and dispute, the disputes clause did not grant the arbitrator carte blanche to rewrite the agreement’s terms in which there was no previous disputes. If successful, the award would be vacated, and the court would then order a rehearing, Id. §171.089. The court has discretion to remand the matter to the same arbitrator or may appoint a successor arbitrator. Id. §171.089(b). Ethical Concerns. I do not like the approach taken in various courts of appeals decisions cited above. When a mediator inserts a provision requiring that he ot she serve as arbitrator in the event of later disputes as part of the boilerplate in a Mediated Settlement Agreement, I find the practice to be ethically dubious. The Mediated Settlement Agreement is developed at the close of mediation. Was there full disclosure by the mediator that confidential information shared during the mediation — and particularly during caucus sessions — might be considered by the mediator if he or she later changes hats and becomes an arbitrator? At the time the Mediated Settlement Agreement was executed, did the mediator provide information about that possibility and explain the importance of the boilerplate provision? Did the mediator discuss the possibility that another person might be more objective to serve as the arbitrator if subsequent issues arose? If the answer to these questions is negative, did the parties truly consent to authorizing the mediator to later be an arbitrator regarding the same case? I find the practice to be troubling. Indeed, so has the ADR Section and Texas Supreme Court. Paragraph 12 of the Ethical Guidelines for Mediators provided that 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.” See http:// www.supreme.courts.state.tx.us/MiscDocket/05/05910700.pdf (emphasis added). Although arbitration is not specifically mentioned, the official comment further elaborates that a attorney-mediator should not later serve in “any other 60

judicial or quasi-judicial capacity with binding authority.” Id. The comment authorizes a narrow exception, however, “where an impasse has been declared at the 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.” Id. The situation described in quoted exception strikes me as being vastly different from the scenario depicted in the puzzler in which the “mediator turns arbitrator” language is buried in the boilerplate of a form Mediated Settlement Agreement document, and there is not any indication of any disclosure or actual consent by the parties. Charles H. Clark, (Tyler): I am glad to weigh in on the “Ethical Puzzler.” With respect to the first question that is the family-law attorney’s remedies and those of our clients, I would advice her to take the appropriate legal action to vacate the arbitration award. Vacation of the judgment is appropriate given what I see as an ethical breach by the Family Court judge who acted as both the mediator and arbitrator. The parties did not agree to have the Family Court judge act as the mediator and arbitrator before the mediation began. Rather, the mediation/arbitration agreement was included as the “boilerplate” language at the conclusion of the mediation. This is problematic because the parties were not informed that the Family court judge might later serve as their arbitrator in the event of a dispute. The parties may not have revealed confidential information to the mediator if they had been informed beforehand that he would serve as as arbitrator. In addition, mediation communications are strictly confidential under Texas law. See Tex. Civ. Prac. And Rem. Code Annotated Sec. 154.073. It is therefore, improper for

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the arbitrator to base an award on confidential information obtained during a mediation. Before a mediator can arbitrate a dispute, the mediator/arbitrator should obtain a waiver from the parties addressing confidential communications.

The point is this — until the litigant can reach a fundamental level of peace with his or her opponent, the legal conflict scene will replay itself repeatedly, especially where children are involved in the family dynamic.

The “boilerplate” language in the Mediated Settlement Agreement does not address or inform the parties how confidential information will be used in the arbitration process. A properly crafted agreement should, at a minimum, inform the parties what mediation communications, if any, can be considered for the purpose of an arbitration award.

One natural byproduct of failure to fully resolve the underlying conflict is that the dissatisfied litigant will attempt to find some reason—any reasob—to se aside what, at the tie, seemed like a good idea to get the case settled. For that reason, I have incorporated the following language into my boilerplate Mediated Settlement Agreement to avoid that argument: “Transcription of the parties’ agreement is provided by the Mediator as a courtesy and convenience to the parties, at their request and direction. The parties and counsel understood that they are solely responsible for the content of this Mediated Settlement Agreement,”

Linda M. McCain, (Navasota): “...Parties and their counsel signed a [family law] Mediated Settlement Agreement, prepared by the mediator, Incorporating the terms of the settlement…” When the mediator drafts the Mediated Settlement Agreement, there is at least an ethical argument to be made that the mediator failed to include all terms which were agreed upon by the parties or perhaps that the mediator substituted his or her own judgment about how something should be worded, and, as a result, the Mediated Settlement Agreement does not accurately reflect the parties’ agreement. Thankfully, I do not see this type of argument being successfully put forth with any frequency. Ethically, the parties and their attorneys are responsible for ensuring that the Mediated Settlement Agreement contains what was agreed upon. Settling parties in family law cases are notorious for having “buyer’s remorse.” This is typically because of the high level of emotional investment the parties have in the disputed issues. If the mediator is not able to get to and expose the underlying emotional root of the dispute, settlement terms will not likely resolve the underlying conflict. Those underlying issues are what keeps the conflict “alive” and can include things such as perceived imbalance of power, feelings of rejection and loneliness, jealously, desire for ultimate control, insecurity, insistence on an apology, regrets over failed relationships, desire or retribution, assessment of blame and the like. I frequently tell family law litigants that conflicts which do not end peacefully, never truly end at all. Spring 2013, Vol. 22, No. 3

“the Mediated Settlement Agreement had some ‘boiler plate’ language which stated in part…[ ] the parties agree to return the mediator for arbitration and further agree to be bound by the arbitrator’s decision…” I se this done quite a bit, and, in fact, my original set of standard Mediated Settlement Agreement boilerplate forms included similar language. By trial and error, I prefer, however, to use a boilerplate provision where, if disagreements over form and content of the resulting final order occur, then the parties make an election at the time of executing the Mediated Settlement Agreement, about how that future drafting disagreement will be resolved—whether by return to mediation or, instead, by binding arbitration. Inclusion of the language tying the conflict resolution options to disagreements over the form and content of the final order clarifies that the ongoing duty of mediator input/interface arises out of the need to clarify for purposes of drafting that final order, versus renegotiation of the agreed terms or some effort to bootstrap issues that were not addressed or resolved at the time of mediation. [As an aside—This interpretation is also consistent with the language many of us use that drafting conflicts shall be resolved by reference to the Texas Family Practice Manual, Edition 3.]

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And, as an added bonus, the clients are given an option; if arbitration is elected, the fact that the client chose arbitration over the option to return to mediation strengthens the notion that it was an informed material negotiated term of the Mediated Settlement Agreement, and cannot be collaterally attacked. Where counsel and the parties are most specifically contemplating the need to have some issues arbitrated, there are a couple of suggestions to prevent future ethical dilemmas for the mediator: If the possibility of arbitration is already being contemplated at the mediation, take the time to negotiate and include in the Mediated Settlement Agreement specific language which details the exact procedures to be implemented for the arbitration. For example, consider this hypothetical — Parties A and B are still occupying the marital residence at the time of the mediation, pending closing of sale of that residence at a future uncertain date. The parties do not know where each will be residing following the sale, and anticipate they will have difficulty agreeing on an acceptable mid-point between their respective new homes to use as a neutral location for exchanges ancillary to possession and access of the parties’ children. The parties agree that the mediator should arbitrate that future decision by simply designating the neutral location for the parties. In this event, I would encourage the parties to incorporate provisions which specify—(1) who gets to notify the mediator that the arbitration clause is being invoked, with copies of that notice to all other parties (setting the tone for no ex parte contact); (2) what information can be included in that notice (new addresses and nothing else); (3) what the associated costs, if any, will be; (4) any time limitations placed on the right to invoke the arbitration clause; (5) notice that the agreed requirement of arbitration can be set aside in writing, signed by both parties, in favor of return to mediation and (6) in all caps, all bold, a statement that only the issue(s) designated in the Mediated Settlement Agreement for future arbitration will be considered, and that no other issues will be authorized for consideration at the arbitration. One additional observation — if the parties are not willing to specify the procedures for a future arbitra62

tion for which they are asking you, as the mediator to commit your time and professional reputation/ standing, the safest way to incur any ethical hotwater is to decline to make arbitration available to them. “...issued an Award that encompassed changes… [ ] in both the property division and the childrelated previously agreed to between the parties in the mediation.” As commented above, I think any automatice triggered arbitration clause needs to be limited to either minor drafting issues, or, if it contemplates something more than that, the Mediated Settlement Agreement needs to contain a detailed listing of the issues to be addressed. The Puzzler does not specify, but I am assuming that the premise of the Puzzler is that the mediator-turned-arbitrator has clearly exceeded his or her grant of arbitration authority by acting as the trier of fact on new issues or ones already determined by the parties at mediation. This would be an ethical breach, at least in my opinion, unless entered a new written arbitration agreement which specified an expansion of the issues to be addressed by the arbitrator. Thomas C. Railsback, (Dallas): Generally, the Texas Ethical Guidelines for Mediators prohibit a mediator from arbitrating a dispute where the mediaor had private caucuses with the parties. There is an exception that exists where (1) an impasse has been declared at the conclusion f the mediation; (2) the parties request that the mediator arbitrate; (3) the mediator believes that nothing learned in the caucuses will bias the mediator or unfairly influence the mediator’s arbitration decision. The “boilerplate” in the Mediated Settlement Agreement contractually obligates the parties to arbitrate, but fails to define what is to be arbitrated, thus leaving the door open to EVERYTHING, though I doubt that is what was intended. I would recommend that “Family Law Attorney” give notice that the Mediated Settlement Agreement is being repudiated based on a violation of the Texas Ethical Guidelines for Mediations, and thus is in violation of public policy. In the event a request is

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Spring 2013, Vol. 22, No. 3

made that judgment be granted on the Mediated Settlement Agreement by the other side, I would file a written objection to entry of judgment on the Mediated Settlement Agreement, and file an additional motion asking that the Mediated Settlement Agreement be set aside and held for naught. As a basis for each I would re-urge the ethical and public policy grounds noted above, and specifically point out any failure of the opposing counsel or the mediator to establish an exception to the ethical rules is warranted; e.g., argue that there was no impasse declared, there was no request that the mediator arbitrate “property” or “child-related” issues, and/or, there was no affirmative finding that the mediator learned nothing in the caucuses would unfairly influence him. Advice: Don’t use this mediator again. Better Advice: Read the MSA with brain engaged. *************************************** Comment: This, like all the ethical puzzlers in this column is based on an actual case. It should scream “WARNING! WARNING! WARNING!” to lawyers, clients and mediators alike. In the first place, lawyers need to seriously consider preparing their own Mediated Settlement Agreements making sure that such agreements contain exactly what the parties and their counsel intended to convey — nothing more and nothing less. To allow the mediator to prepare the agreement, risks, at worst, the (hopefully) unintended consequences as illustrated in this case and at best allows the mediator to filter the terms of the agreement through his eyes instead of through the eyes of the parties and their counsel.

Spring 2013, Vol. 22, No. 3

Secondly, when mediators become adjudicators they almost always violate one or more ethical rules. Arbitration is a creature of contract. If there is an arbitration clause in a Mediated Settlement Agreement, especially is such clause is hidden in the “boilerplate” of the mediator’s—prepared agreement, parties and their counsel need be explicit as to the terms, conditions and limitations of such arbitration clause. Thirdly, Tom Railsback said it best by way of his advice: “(1) don’t use the mediator again” and (2) Better advice: Read the Mediated Settlement Agreement with brain engaged.” Suzanne M. Duvall is an attorneymediator in Dallas. With over 800 hours of basic and advanced training in mediation, arbitration, and negotiation, she has mediated over 1,500 cases to resolution. She is a faculty member, lecturer, and trainer for numerous dispute resolution and educational organizations. She has received an Association of Attorney-Mediators Pro Bono Service Award, Louis Weber Outstanding Mediator of the Year Award, and the Susanne C. Adams and Frank G. Evans Awards for outstanding leadership in the field of ADR. Currently, she is President and a Credentialed Distinguished Mediator of the Texas Mediator Credentialing Association. She is a former Chair of the ADR Section of the State Bar of Texas.

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ADR ON THE WEB Business Conflict Blog http://businessconflictmanagement.com/blog/ By Mary Thompson* Commercial arbitrator and mediator F. Peter Phillips is based in New Jersey and began his blog in 2009. As the former Senior VP of the International Institute for Conflict Prevention and Resolution, Phillips has a broad range of interests, including posts on international and European ADR.

a summary of Boston mediator Dwight Golann’s article on how to turn “insulting” offers in to opportunities, and  a link to the Cardozo Journal of Conflict Resolution volume that explores alternatives to interest-based bargaining. website link

A sampling of the posts from the International category include

The Mediation section provides

a commentary on the resistance to hybrid forms of ADR in the U.S. and the U.K., and a summary of the more accepting views of several international practitioners from the 2012 World Mediation Forum,  An overview of the use of ADR in Africa, and  A link to an article exploring the interests in multiparty negotiation in Somali pirate hostage disputes. website link

The Arbitration category includes 

updates on court cases involving the scope of an international tribunal’s authority,  judicial determination of arbitrability, and  a ruling on sanctions for a baseless motion to vacate and arbitration award. website link

a link to Harvard-Kennedy films on community/corporate dialogue,  a recent California ruling on confidentiality in mediation, and  a review of Laura Kaster’s essay, Addressing Impasse by Helping the Parties Value the Case. website link

Phillips is a good writer. The content here is consistently substantive and free of much of the lighter posts, cartoons, or funny videos found in many ADR blogs. Business Conflict Blog is definitely one to bookmark, especially for those practitioners with an interest in the broader, international aspects of the ADR field. Mary Thompson, Corder/ Thompson & Associates, is a mediator, facilitator and trainer in Austin.

Under Conflict Resolution one can find  a link to ClauseBuilder.org, the American Arbitration Association’s online mediation and arbitration clause-drafting tool, 64

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Spring 2013, Vol. 22, No. 3

CALENDAR OF EVENTS 2013 40-Hour Basic Mediation Training * Houston * April 25-28, 2013 * Manousso Mediation & Alternative Dispute Resolution—Conflict Resolution Services and Training * Phone 713.840.0828 * http:// www.manousso.us

Basic Mediation Training * Austin * May 15, 16, 17, 21, 22, 2013 * Austin Dispute Resolution Center * (512) 471-0033 * www.austindrc.org 40-Hour Basic Mediation Training * Houston * June 7-9 continuing June 14-16, 2013 * University of Houston Law Center—A.A. White Dispute Resolution Center * Contact Judy Clark at 713.743.2066 * www.law.uh.edu/ blakely/aawhite

40-Hour Basic Mediation Training * Dallas * June 10-13, 2013 * Professional Services & Education * E-Mail: [emailprotected] * Phone: 214-526-4525 * www.conflicthappens.com 40-Hour Basic Mediation Training * San Marcos * June 19-29, 2013 * Hays County DRC * E-Mail: [emailprotected] * Phone: 512-878-0382 * Elder Mediation Training * Houston * July 1-2, 2013 * Manousso Mediation & Alternative Dispute Resolution—Conflict Resolution Services and Training * Phone 713.840.0828 * http://www.manousso.us

Advanced Family and Divorce Mediation Training * Houston * July 12-14, 2013 * Manousso Mediation & Alternative Dispute Resolution—Conflict Resolution Services and Training * Phone 713.840.0828 * http:// www.manousso.us Family Mediation * Dallas * July 16-18, 2013 * Professional Services & Education *

E-Mail: [emailprotected] * Phone: 214-526-4525 * www.conflicthappens.com Advanced Family Mediation Training * Austin * July 23-26, 2013 * Austin DRC * (512) 371-0033 * www.austindrc.org 40-Hour Basic Mediation Training * Houston * September 13-15 continuing September 20-22, 2013 * University of Houston Law Center—A.A. White Dispute Resolution Center * Contact Judy Clark at 713.743.2066 * www.law.uh.edu/blakely/aawhite


Submission Date

Publication Date

Summer Fall Winter Spring

June 15, 2013 September 15, 2013 December 15, 2013 March 15, 2014

July 15, 2013 October 15, 2013 January 15, 2014 April 15, 2014

SEND ARTICLES TO: Prof. Stephen K. Huber University of Houston Law Center Houston, Texas 77204-6060


Spring 2013, Vol. 22, No. 3

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2012-2013 OFFICERS AND COUNCIL MEMBERS Officers Hon. Alvin Zimmerman, Chair Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. 3040 Post Oak Blvd., Suite 1300 Houston, Texas 77056-6560 Office: 713-552-1234 Fax: 713-963-0859 Email: [emailprotected] Ronald L. Hornberger, Chair-Elect Plunkett & Gibson, Inc. 70 NE Loop 410, Suite 1100 San Antonio, Texas 78216 Office: 210-734-7092 Fax: 210-734-0379 Email: [emailprotected] Donald R. Philbin, Jr., Treasurer P.O. Box 12286 San Antonio, Texas 78212 Office: 210-212-7100 Fax: 210-212-7118 Email: [emailprotected] Robert C. Prather, Sr., Secretary Snell Wylie & Tibbals 8150 N. Central Expressway, Suite 1800 Dallas, Texas 75206 Office: 214-691-2500 Fax: 214-691-2501 Email: [emailprotected] Joe L. “Joey” Cope, Past Chair Duncum Center for Conflict Resolution 1541 N. Judge Ely Blvd. ACU Box 27770 Abilene, Texas 79699-7770 Office: 325-674-2015 Fax: 325-674-2427 Email: [emailprotected] Consultants Stephen K. Huber, Co-Chair Newsletter Editorial Board Post Office Box 867 Bellville, Texas 77418 979-865-0020 [emailprotected] E. Wendy Trachte-Huber, Co-Chair Newsletter Editorial Board Post Office Box 867 Bellville, Texas 77418 979-865-0020 [emailprotected]


Robyn G. Pietsch, Newsletter Editor 30699 Iron Branch Road Dagsboro, Delaware 19939 302-841-7219 [emailprotected] Special Representatives Cecilia Morgan TMCA Liaison JAMS 8401 N. Central Expressway Suite 610 Dallas, Texas 75225 Office 214-744-5267 FAX 214-720-6010 Email: [emailprotected] Donna Phillips, DRCs McLennan County DRC 900 Austin Ave., Ste. 502 P.O. Box 1488 Waco, TX 76703 Office: 254-752-0955 Email: [emailprotected] Council Members Terms Expire June 2013 Hon. Caroline E. Baker 295th State District Court 201 Caroline Street, 14th Floor Houston, Texas 77002 Office: 713-368-6467 Email: [emailprotected] Hon. Robert A. “Bob” Gammage P.O. Box 400 Llano, Texas 78643 Office: 512-657-3575 Email: [emailprotected] Term Expires 2014 Hon. Susan S. Soussan 1330 Post Oak Blvd., Suite 2880 Houston, Texas 77056 Office: 713-961-2880 Fax: 713-961-2886 Email: [emailprotected] Hon. John J. Specia, Jr. Plunkett & Gibson, Inc. 70 NE Loop 410, Suite 1100 San Antonio, Texas 78216 Office: 210-734-7092 Fax: 210-734-0379 Email: [emailprotected] Alternative Resolutions Return to Table of Contents

William B. “Bill” Short Coats Rose, P.C. 5420 LBJ Freeway, Suite 1300 Dallas, Texas 75240 Office: 972-982-8458 Email: [emailprotected] Brewer Jackson, P.C. 5201 N. O'Connor Blvd., Fifth Floor Irving, Texas 75039 Office: 972-870-9898 Email: [emailprotected] Brian White Deputy Public Counsel/Chief of Staff Office of Injured Employee Counsel 7551 Metro Boulevard Austin, Texas 78744 Office: 512-804-4186 Email: [emailprotected] Term Expires 2015 Erich Birch Birch, Becker & Moorman, LLP 4601 Spicewood Springs Road Building 4, Suite 101 Austin, Texas 78759-7814 Email: [emailprotected] David N. Calvillo Calvillo Law Firm, PLLC Las Arboledas Office Park 6316 N. 10th St., Bldg. B, Suite 200 McAllen, Texas 78504 Office: 956-664-1000 Email: [emailprotected] Melinda Jayson Melinda G. Jayson, P.C. 5445 Caruth Haven Lane, Suite 2015 Dallas, Texas 75225 Email: [emailprotected] Linda Meekins McLain, P.C. McLain Mediation Services 1903 Dove Crossing Lane, Suite C Navasota, Texas 77868 Office: 936-825-6533 Fax: 936-825-8599 Email: [emailprotected]

Spring 2013, Vol. 22, No. 3

ENCOURAGE COLLEAGUES TO JOIN ADR SECTION This is a personal challenge to all members of the ADR Section. Think of a colleague or associate who has shown interest in mediation or ADR and invite him or her to join the ADR Section of the State Bar of Texas. Photocopy the membership application below and mail or fax it to someone you believe will benefit from involvement in the ADR Section. He or she will appreciate your personal note and thoughtfulness.


calendar of upcoming ADR events and trainings around the State.

Valuable information on the latest developments in ADR is provided to both ADR practitioners and those who represent clients in mediation and arbitration processes.

Continuing Legal Education is provided at affordable basic, intermediate, and advanced levels through announced conferences, interactive seminars.

Section Newsletter, Alternative Resolutions

is published several times each year. Regular features include discussions of ethical dilemmas in ADR, mediation and arbitration law updates, ADR book reviews, and a

Truly interdisciplinary in nature, the ADR Section is the only Section of the State Bar of Texas with non-attorney members.

Many benefits are provided for the low cost of

only $25.00 per year!


MEMBERSHIP APPLICATION MAIL APPLICATION TO: State Bar of Texas ADR Section P.O. Box 12487 Capitol Station Austin, Texas 78711 I am enclosing $25.00 for membership in the Alternative Dispute Resolution Section of the State Bar of Texas from June 2012 to June 2013. The membership includes subscription to Alternative Resolutions, the Section’s Newsletter. (If you are paying your section dues at the same time you pay your other fees as a member of the State Bar of Texas, you need not return this form.) Please make check payable to: ADR Section, State Bar of Texas.

Name Public Member


Bar Card Number Address City Business Telephone

State Fax

Zip Cell

E-Mail Address: 2012-2013 Section Committee Choice

Spring 2013, Vol. 22, No. 3

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A LT E R N AT I VE R E S O L U T I ON S P U B LI C AT I ON P O L I C I E S Requirements for Articles 1.

Alternative Resolutions is published quarterly. The deadlines for the submission of articles are March 15, June 15, September 15 , and December 15. Publication is one month later.



The author should provide a brief professional biography and a photo (in jpeg format).


The article may have been published previously, provided that the author has the right to submit the article to Alternative Resolutions for publication.

The article should address some aspect of negotiation, mediation, arbitration, another alternative dispute resolution procedure, conflict transformation, or conflict management. Promotional pieces are not appropriate for the newsletter.

Selection of Article


The length of the article is flexible. Articles of 1,500-3,500 words are recommended, but shorter and longer articles are acceptable. Lengthy articles may be serialized upon an author's approval.

2. If the editor decides not to publish an article, materials received will not be returned.


Names, dates, quotations, and citations should be double-checked for accuracy.

Preparation for Publishing


Citations may appear in the text of an article, as footnotes, or as end notes. Present editorial policy is to limit citations, and to place them in the text of articles. "Bluebook" form for citations is appropriate, but not essential. A short bibliography of leading sources may be appended to an article.


The preferred software format for articles is Microsoft Word, but WordPerfect is also acceptable.


Check your mailing information, and change as appropriate.

1. The editor reserves the right to accept or reject articles for publication.

1. The editor reserves the right, without consulting the author, to edit articles for spelling, grammar, punctuation, proper citation, and format. 2 Any changes that affect the content, intent, or point of view of an article will be made only with the author’s approval. Future Publishing Right Authors reserve all their rights with respect to their articles in the newsletter, except that the Alternative Dispute Resolution Section (“ADR Section”) of the State Bar of Texas (“SBOT”) reserves the right to publish the articles in the newsletter, on the ADR Section’s website, and in any SBOT publication.

A LT E R N AT I VE R E S O L U T I ON S P OLICY FOR L ISTING OF T RAINING P ROGRAMS It is the policy of the ADR Section to post on its website and in its Alternative Resolution Newsletter, website, e-mail or other addresses or links to any ADR training that meets the following criteria: 1. That any training provider for which a website address or link is provided, display a statement on its website in the place where the training is described, and which the training provider must keep updated and current, that includes the following: a. That the provider of the training has or has not applied to the State Bar of Texas for MCLE credit approval for ____hours of training, and that the application, if made, has been granted for ____hours or denied by the State Bar, or is pending approval by the State Bar. The State Bar of Texas website address is www.texasbar.com, and the Texas Bar may be contacted at (800)204-2222. b. That the training does or does not meet The Texas Mediation Trainers Roundtable training standards that are applicable to the training. The Texas Mediation Trainers Roundtable website is www.TMTR.ORG. The Roundtable may be contacted by contacting Cindy Bloodsworth at [emailprotected] and Laura Otey at [emailprotected]. c. That the training does or does not meet the Texas Mediator Credentialing Association training requirements that are applicable to the training. The Texas Mediator Credentialing Association website is www.TXMCA.org. The Association may be contacted by contacting any one of the TXMCA Roster of Representatives listed under the “Contact Us” link on the TXMCA website.


2. That any training provider for which an e-mail or other link or address is provided at the ADR Section website, include in any response by the training provider to any inquiry to the provider's link or address concerning its ADR training a statement containing the information provided in paragraphs 1a, 1b, and 1c above. The foregoing statement does not apply to any ADR training that has been approved by the State Bar of Texas for MCLE credit and listed at the State Bar's Website. All e-mail or other addresses or links to ADR trainings are provided by the ADR training provider. The ADR Section has not reviewed and does not recommend or approve any of the linked trainings. The ADR Section does not certify or in any way represent that an ADR training for which a link is provided meets the standards or criteria represented by the ADR training provider. Those persons who use or rely of the standards, criteria, quality and qualifications represented by a training provider should confirm and verfy what is being represented. The ADR Section is only providing the links to ADR training in an effort to provide information to ADR Section members and the public." SAMPLE TRAINING LISTING: 40-Hour Mediation Training, Austin, Texas, July 17-21, 2012, Mediate With Us, Inc., SBOT MCLE Approved—40 Hours, 4 Ethics. Meets the Texas Mediation Trainers Roundtable and Texas Mediator Credentialing Association training requirements. Contact Information: 555-555-5555, [emailprotected], www.mediationintx.com

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Spring 2013, Vol. 22, No. 3

Alternative Dispute Resolution Section Officers

Immediate Past Chair:


Hon. Alvin Zimmerman, Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. 3040 Post Oak Blvd., Suite 1300 Houston, Texas 77056-6560 Office: (713) 552-1234 Fax: (713) 963-0859 Email: [emailprotected]

Joe L. “Joey” Cope Duncum Center for Conflict Resolution 1541 N. Judge Ely Blvd. ACU Box 27770 Abilene, Texas 79699-7770 Office: 325-674-2015 Fax: 325-674-2427 Email: [emailprotected]

Stephen K. Huber E. Wendy Trachte-Huber Robyn G. Pietsch

Ronald L. Hornberger, Chair-Elect Plunkett & Gibson, Inc. 70 NE Loop 410, Suite 1100 San Antonio, Texas 78216 Office: 210-734-7092 Fax: 210-734-0379 Email: [emailprotected] Donald R. Philbin, Jr., Treasurer P.O. Box 12367 San Antonio, Texas 78212 Office: 210-212-7100 Fax: 210-212-7118 Email: [emailprotected] Robert C. Prather, Sr., Secretary Snell Wylie & Tibbals 8150 N. Central Expressway, Suite 1800 Dallas, Texas 75206 Office: 214-691-2500 Fax: 214-691-2501 Email: [emailprotected]

Past Chairs: John K. Boyce, III Cecilia H. Morgan John Charles Fleming Michael Wilk William H. Lemons III Michael J. Schless Deborah H. McElvaney Wayne fa*gan Caliph Johnson Gary D. Condra John A. Coselli, Jr., John P. Palmer Suzanne Mann Duvall David Cohen E. Wendy Trachte-Huber C. Bruce Stratton Charles Guittard Lanelle Montgomery Kimberlee K. Kovach

(San Antonio) (Dallas) [Austin] (Houston) (San Antonio) (Austin) (Houston) (San Antonio) (Houston) (Lubbock) (Houston) (Waco) (Dallas) (Austin) (Bellville) (Liberty) (Dallas) (Austin) (Austin)

(Houston) (Houston) (Houston)

Special Representatives: Cecilia Morgan TMCA Liaison Donna Phillips DRC’s

(Dallas) (Waco)

Council 2013: Hon. Caroline E. Baker (Houston) Robert R. “Bob” Gammage (Llano and Austin)

Council 2014 William B. “Bill” Short Patty Wenetschlaeger Brian White Guy L. Hawkins Robert C. Prather, Sr. Hon. Susan S. Soussan Hon. John J. Specia, Jr.

(Dallas) (Irving) (Austin) (Lubbock) (Dallas) (Houston) (San Antonio)

Council 2015 Erich Birch David N. Calvillo Melinda Jayson Linda Meekins McClain

(Austin) (McAllen) (Dallas) (Navasota)

NEWSLETTER EDITORIAL BOARD Stephen K. Huber and E. Wendy Trachte-Huber, Co-Chairs COMMITTEE MEMBERS Lue Dillard: Labor/Employment Law Section, Houston Suzanne M. Duvall: Ethical Puzzler, Dallas Sherrie Abney: Collaborative Law, Carrollton Mary Thompson: ADR on the Web, Austin Kay E. Elliott: Reflections From the Edge, Denton Jeff Abrams: Consumer/Commercial, Houston John Fleming: Caselaw Legislation Update, Austin Debbie McElvaney: Appellate Law Section, Houston


Views expressed in Alternative Resolutions are those of the authors and do not necessarily reflect the views of the editors, the State Bar of Texas or the ADR Section. © State Bar of Texas Alternative Dispute Resolution Section, 2012. The individual authors reserve the rights with respect to their works included in this Newsletter. The State Bar of Texas ADR Section reserves all rights to this Newsletter.

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