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Current Issues in Court Annexed Mediation

Table of Contents

  1. What is Court Annexed Mediation?
  2. Who is Qualified to Mediate in Such Matters?
  3. How can ethics/rules be applied/enforced?
  4. Potential Models
  5. Conclusion

What is Court Annexed Mediation?

There are three different definitions of Court Annexed Mediation.

The narrowest definition is mediation that has been specifically ordered by a Court.

The middle ground is mediation that occurs per general court orders (e.g. standing orders that all family law cases will be mediated before a trial date is set).

The most expansive definition is the mediation of any and all matters that will of necessity be litigated (e.g. damage awards to minors, divorce actions).

Note that even the most expansive definition requires that the matter be one that will result in a Judge entering an order.

Who is Qualified to Mediate in Such Matters?

This issue of who is qualified to act as a mediator in a Court Annexed Mediation has several splits of authority and practice.


Each split excludes some group and the rationale behind each exclusion depends, in some extent, on what a mediator is supposed to be and what role a mediator fills.

How can ethics/rules be applied/enforced?

This issue has several splits as to how to apply ethical rules and enforce them in regards to mediators.

The most stringent groups want mandatory membership in an sub-set of the State Bar Association, with full disciplinary powers.  The least stringent group wants no standards at all (other than the market place).

Potential Models

Several states and other groups are muddling their way towards solutions.  The leading trends are:

Conclusion

The Texas Bar Association ADR Section panel is still wrestling with the issues of what, who, how and if mediators should be certified or their ethics supervised in regards to Court Annexed Mediation.  If you have any input, they would be pleased to hear your opinions and rationale.

Stephen R. Marsh

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Copyright 2000 Stephen R. Marsh

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