The answer is yes, according to the Dean of the South Texas College of Law. In an article printed in the Southeast Texas Record, Dean James Alfini suggested that the high number of lawyers acting as mediators is eroding the "core spirit" of the Texas Alternative Dispute Resolution Act.
The Texas ADR Act, according to Dean Alfini, was designed so that parties can talk face to face before a neutral third party to resolve a dispute. With so many lawyers acting as mediators, the parties aren't getting an opportunity to tell their side of the story directly to the other side, according to Dean Alfini. Instead, the attorneys representing the parties are the ones doing the talking and the deal making with the mediator.
It goes without saying that a mediator should not act as a decision-maker. But I've found in a number of circumstances the parties have been so hurt by the other that they don't want to speak to the other side, so the mediation process of using separate caucuses does meet the need of the hurt party--they get to tell their story to a neutral. It's like having their day in court, and that ability to express what happened to a neutral (instead of the other side or their own attorney) can have a tremendously meaningful effect.
We should listen to Dean Alfini, and make sure that the mediation process is focused on the parties, and that the parties are the ones who make the solutions, not the attorneys (or the mediator).
The Texas ADR Act, according to Dean Alfini, was designed so that parties can talk face to face before a neutral third party to resolve a dispute. With so many lawyers acting as mediators, the parties aren't getting an opportunity to tell their side of the story directly to the other side, according to Dean Alfini. Instead, the attorneys representing the parties are the ones doing the talking and the deal making with the mediator.
It goes without saying that a mediator should not act as a decision-maker. But I've found in a number of circumstances the parties have been so hurt by the other that they don't want to speak to the other side, so the mediation process of using separate caucuses does meet the need of the hurt party--they get to tell their story to a neutral. It's like having their day in court, and that ability to express what happened to a neutral (instead of the other side or their own attorney) can have a tremendously meaningful effect.
We should listen to Dean Alfini, and make sure that the mediation process is focused on the parties, and that the parties are the ones who make the solutions, not the attorneys (or the mediator).
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