Mediation

Mediation generally occurs in the context of an existing lawsuit, and can either be court ordered or voluntary.  Mediation can also occur pre-suit, and often family law orders require pre-suit mediation prior to the filing of any modification action.

Mediation is confidential.  At the close of the mediation, the mediator merely informs the court (if there is a pending case at the time of mediation) whether the parties settled and, if so, whether only some or all issues were resolved by mediation.

The mediator is not a decision maker.  The mediator represents no party.  The mediator can, therefore, not provide legal advice to any party.  Any resulting agreement is that of the parties.

In the family law context, there may be more than one mediation – one to resolve temporary orders issues an one to resolve final order issues.  In the commercial context, there is generally only one mediation, designed to resolve all issues.

The goal of any mediation is, of course, to resolve all issues or as many issues as is possible.    The end product of a successful mediation is a mediated settlement agreement.  In the family law context, a mediated settlement agreement is final, binding, and irrevocable once executed.  Any party is entitled to an order conforming to the mediated settlement agreement. The beauty of this is that parties can agree to terms that a court might not be willing to order, but the court is bound to approve the agreement of the parties.  This provides great flexibility to the parties in fashioning an agreement.  In the commercial context, a mediated settlement agreement is a contract, which can be sued on like any other contract.

Tom’s skills as a collaborative lawyer inform him as a mediator, and vice-versa.  Both contexts require active listening, moving from what appear to be issues to the underlying (and often undisclosed or even unknown) interests driving those issues, managing expectations, and obtaining “buy-in” from consituences that can be, if not properly managed, divergent and oppositional. Tom’s unique combination of skills and fresh approaches to mediation make him an effective mediator.   

Mediations are generally conducted at the firm’s offices located at Agarita Creek — A Hill Country Ranch Retreat.  The firm’s offices at the ranch can accommodate most mediations, but additional space is available for day use and/or overnight accommodations if needed or desired utilizing the two cabins and guest suite at Agarita Creek – A Hill Country Ranch Retreat.

Just a few years ago virtually all mediations involved represented parties.  Today, it remains true that  most mediations (particularly in the commercial context) involve parties represented by their own counsel, who provide them with legal advice and, generally, advocate for their party client while also promoting settlement.  If a party has an attorney, both the party and the attorney are generally required to participate in the mediation.

The mediator is a neutral third-party whose role is to facilitate settlement.  The mediator does not provide legal advice.  Likewise, all decisions are made by the parties – with the assistance of their respective counsel.

Mediation is confidential.  None of the information disclosed at mediation can be utilized for any other purpose, including, of course trial.  This does not mean that information learned at mediation cannot be verified by other means and later utilized.  As a result, parties are encouraged to consult with their respective attorneys privately during the mediation.  Tom is diligent in only communicating information that has been approved to be disclosed to the other side.  At the same time, due to the nature of mediation, candor is required and as much transparency as is possible is encouraged.

Tom conducts mediations involving represented parties in both the family and commercial context.  He is a firm believer that a key to successful mediation is pre-mediation preparation, and he seeks all counsel in all mediations to provide him with as much information as is possible prior to mediation – including a confidential memorandum, live pleadings, and relevant discovery.  He generally conducts a conference with all attorneys in the days preceding the mediation.

Tom is mindful that many mediations are court-ordered, and that one or more parties or attorneys may not approach the mediation in the spirit most conducive to mediation.  The work done prior to mediation is designed, in part, to create the necessary attitude of cautious optimism necessary for a successful mediation.  In addition, Tom, after consulting with the lawyers, will attempt creative strategies during the mediation designed to invigorate a stalled mediation and to promote settlement.  Mediation is designed to be a creative and flexible process, but it can be stale or lifeless if that creativity is stifled and the process becomes routine.   Tom’s approach is designed to ensure that the process remains fresh and that the potential for each mediation to be a successful mediation is maximized.

Recently, Texas courts have seen a proliferation of cases in which one or both parties is unrepresented by counsel.  In no arena is this phenomena more true than in the context of family law cases – particularly divorces.  The State Bar of Texas has promulgated forms for use by pro se parties in divorces.  This effort has led to difficulties for the parties and the courts due to the divergent level of ability among parties to accurately complete the forms, particularly the divorce decree itself.  This has led to frustration: frustration for the courts, the parties, and the lawyers who are asked to step in at the last minute to cure defects in forms necessary to get the parties divorced.

Due primarily to these issues, Tom set out several years ago to design a different kind of dispute resolution process for divorcing parties without attorney representation.  The process includes as its centerpiece mediation, but it neither begins or ends there.  It is a comprehensive process that takes unrepresented parties through the entire divorce case – from pleadings, through the gathering of essential discovery, through mediation, and ultimately to an agreed final decree of divorce that meets the requirements of Texas law and the courts.

This process is more expensive  than mediation alone, because it is much more comprehensive.  It is, however, generally less expensive than each party engaging their own counsel.  It provides a middle way in which unrepresented parties can approach their divorce in a way that avoids many of the potential pitfalls of pro se divorce.

This process has worked well enough in pro se divorces that it has been modified to apply in other contexts involving disputes between unrepresented parties – in the context of other family law disputes, divorce, consumer complaints, landlord-tenant, debtor-creditor, property and construction disputes, and other types of disputes that might not justify significant attorney’s fees.  Self-representation appears to be here to stay, and Tom Carnes is committed to continuing to design flexible dispute resolution mechanisms and processes designed to accommodate pro se parties.