The one-size-fits-all nomenclature, “alternative dispute resolution” (“ADR”) lumps together two vastly different dispute resolution processes: “arbitration” and “mediation.” If arbitration means “you decide for us,” mediation means “we work it out together.” The term ADR serves as the lexical umbrella that combines these paired opposites. This coupling of “mediation” and “arbitration” as “ADR” may have made sense in juxtaposition to “litigation” back in the late 1980s when mediation was in its infancy and the Legislature codified the “CIVIL PRACTICE AND REMEDIES CODE, TITLE 7. ALTERNATE METHODS OF DISPUTE RESOLUTION, CHAPTER 154. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.”
But today, where court-ordered mediation is a norm– and where binding arbitration clauses are commonplace– the legal community and much of the public we serve have experienced or otherwise recognize the distinctions. The time has come for decoupling; mediation and arbitration merit individuation and emancipation from the ADR generalization.
This generalization of mediation and arbitration as ADR is found across the legal industry and not just in the code. Quite a few bar associations have an “ADR Section” or “Alternative Dispute Resolution Section,” instead of both an “Arbitration” Section and a “Mediation” Section. These include the ADR Section of the State Bar of Texas, the ADR Section of the Houston Bar Association, and the Section of Dispute Resolution of the American Bar Association.
Organizations like Super Lawyers, Houstonia Magazine, and H Texas Magazine also lump these together when issuing recognitions or awards, not for “Mediation” or for “Arbitration”, but rather for the umbrella “Alternative Dispute Resolution” or for “Mediation and Arbitration.” Individuation would make more sense, especially as some mediators have never arbitrated and some arbitrators have never mediated; many who are excellent arbitrators may not be skilled or proven as mediators, and vice versa.
Disputes may technically reach their final stage in a procedural dismissal in a court, but to the clients, the disputes are already ended at mediation with a signed mediated settlement agreement (“MSA”) or with an arbitration award. Other than settling without assistance, these are the principal ways disputes in excess of JP court maximums are resolved. Far fewer cases are instead tried in court.
In a decoupling milestone in 2018, the “Alternative Dispute Resolution” umbrella category is no longer the sole field of practice from which Texaqs attorneys who mediate and/or arbitrate may select in constructing a texasbar.com attorney profile. Instead, two fields of practice, “Mediation” and “Arbitration” were added and can individually be selected as well. This helps attorneys differentiate and the public find what they are seeking with greater particularity. The State Bar of Texas is leading the way and other industry organizations should follow suit.
The distinctions drawn in this discussion are consistent with the codified definitions of mediation and arbitration. The CPRC defines mediation as “a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them,” detailing also that “A mediator may not impose his own judgment on the issues for that of the parties.” (Sec. 154.001) Instead, the mediator “shall encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement.” (Sec. 154.053).
Conversely, arbitration awards (most notably the vast percentage that are binding) are decided by arbitrators, not the parties, and are enforceable in the same manner as any contract obligation. (Sec. 154.027). While parties to any dispute can agree to arbitrate, very often the binding arbitration is agreed to in advance of any conflict issue arising in the first place, i.e. the binding arbitration clause was included in a contract signed before the contract is later allegedly breached. In short, the parties have no say over the outcome.
Admittedly, the CPRC names other forms of alternative dispute resolution including mini-trial (Sec. 154.024); moderated settlement conference, (Sec. 154.025), and summary jury trial (Sec. 154.026). In the moderated settlement conference, “Each party and counsel for the party present the position of the party before a panel of impartial third parties,” and “the panel may issue an advisory opinion… [that is] not binding on the parties. Similarly, in the Summary Jury Trial, the positions are presented to a panel (typically) of six and the panel’s opinion is advisory. While these approaches to resolution have their place, these are rarely used in comparison to arbitration and mediation.
Yet mediation and arbitration are vastly different. The skill of bringing conflicting parties to reach their own joint mutual agreement and resolution is as far removed from the skill of hearing, reviewing, deciding, and imposing that decision, as any two opposites could be. Conversely, an arbitrator hears the dispute, reviews the proof presented, and then applies law to the facts to declare an outcome and award. In contrast, mediation emphasizes non-judgmental listening, interacting, exploring underlying emotional issues of parties, identifying interests and underlying motivations, reality testing, and bringing the parties to reach their own mutual understanding, reduced to a jointly signed contract. There is no imposition of an outcome or award at mediation.
We can help the one-day archaic term, ADR, along on its retirement journey by saying “mediation” when we mean “mediation”, and “arbitration” when we mean “arbitration.” “ADR” is an inevitable anachronism.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.