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Family Law
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Alternate Dispute Resolution
(Mediation)
Five different alternative dispute resolution (ADR) methods are described in subchapter B of chapter 154 of the
Texas Civil Practice and Remedies
Code:
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Mediation:
Mediation is a process in which a neutral third party acts as a facilitator to assist in resolving a dispute between two or more parties. It is an approach to conflict resolution in which the parties generally communicate directly. The role of the mediator is to facilitate communication between the parties, help them focus on the real issues of the dispute, and generate options for settlement. A mediator may not impose the mediator’s judgment on the issues for that of the parties. The goal of mediation is for the parties themselves to arrive at a mutually acceptable resolution of the dispute.
As with all alternative dispute resolution procedures, mediation process is flexible; variables affecting the process include the style of the mediator and the communication mode of the parties. Mediation is described in Civil Practice and Remedies Code
Ann. § 154.023 (Vernon 1997).
Confidentiality of Communications in ADR Proceedings:
In general, any communication relating to the subject matter of the referred dispute made by a participant in the alternative dispute resolution procedure, whether before of or after formal judicial proceedings are instituted, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding.
Texas Civil Practice and Remedies Code
Ann. § 154.073(a) (Vernon Supp. 2001)
Any record made at the alternative dispute resolution procedure is confidential; neither the participants nor the third party facilitator may be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.
Texas Civil Practice and Remedies Code
§ 154.073(b).
Unless expressly authorized by the disclosing party, the third party facilitator may not disclose to either party information given in confidence by the other and must at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute.
Texas Civil Practice and Remedies Code
§ 154.053(b). All matter, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the court, unless the parties agree otherwise.
Texas Civil Practice and Remedies Code
§ 154.053(c).
An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure
Texas Civil Practice and Remedies Code
§ 154.073(c).
Exceptions to Confidentiality:
Despite the requirements for confidentiality discussed above, in certain instances applicable law may require disclosure of information revealed in the mediation process. For example, section
261.101 of the Family Code may require a mediator to disclose child abuse or neglect to the proper authorities. A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by subchapter B, chapter 261, of the Code.
Texas Family Code ann. § 261.101(a) (Vernon Supp. 2001). Professionals are subject to more specific requirements for reporting, which are contained in Code section
261.101(b). The requirement to report under Code section
261.101 applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney.
Texas Family Code § 261.101(c). Consequently, a mediator, including an attorney mediator, has a duty to report as set forth in Code section
261.101. If confidential information is disclosed during a mediation that is required to be reported, the mediator should advise the parties that disclosure is required and will be made.
The provisions of section 154.073 of the Civil Practice and Remedies Code do not affect the duty to report abuse or neglect under subchapter B or Family Code chapter 261 or abuse, exploitation, or neglect under subchapter C of
Human Resources chapter
48. Texas Civil Practice and Remedies Code
§ 154.073(e). Each participant, including the impartial third party, to an alternative dispute resolution procedure is subject to the requirements of subchapter B of Family Code chapter 261 and to subchapter C of Human Resources Code chapter 48.
Texas Civil Practice and Remedies Code
§ 154.053
(d).
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