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Paralegals as Mediators

21 April 2011

State Bar of Texas--Paralegal Division


Paralegals as Mediators
by Sami K. Hartsfield, ACP

***Republished with permission from the State Bar of Texas–Paralegal Division***

Mediation is defined as “a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution,” Black’s Law Dictionary 1003 (8th ed. 2004). As juxtaposed to an arbitrator, whose decision is usually binding on the parties, the mediator is “a neutral person who tries to help disputing parties reach an agreement,” Id. Because a mediator can be a non-attorney, 1 this is one area that paralegals may consider for further professional or pro bono vocation. A quick Google™ search turns up a plethora of informational resources; but sometimes the best way to get to the heart of the matter is to speak to someone who has already mastered the endeavor. For that, I turned to Mary Beth Jones, a volunteer paralegal mediator who has mediated cases through the Jefferson County Dispute Resolution Center (hereinafter “DRC”) since 1996, and asked her to share her experiences.

Mary Beth Jones has been a practicing paralegal since 1983, and is employed by the law firm of Jenkins & Martins, LLP. After completing the Paralegal Certificate Program at Lamar University in the spring of 1984, Mary Beth achieved the designation of CLA in January 1985. She received a Bachelor of applied Arts & Sciences in 2008 from Lamar University. In addition to mediating, she currently serves on the Ethics Review Committee, and is a member of the Speaker Bureau and Training Team of the Jefferson County DRC. Mary Beth is also an active member and volunteer of the Division.

Mary Beth explains that mediation is a process in which trained neutrals, such as herself in this case, work with parties involved in a dispute. Ideally, this is done to help them work through their issues and reach a mutually agreeable resolution. She believes the process is very satisfying to those who participate, even though they may not get everything they want, or even any of the things they actually want. What they do all receive, however, is an opportunity to sit down in a non-adversarial setting and, with the help of trained mediators, participate in a meaningful dialogue regarding the situation at hand.2  Says Mary Beth, “Because those at the table help to work out the solution, they feel a sense of ownership and satisfaction with the outcome.”

So how can we become involved with this process? Mary Beth explained that she’s been a paralegal for the same attorneys for 25 years, although the firm has undergone some changes over the years. Her work experience has been mostly in the area of various types of toxic tort cases, and she became familiar with the concept of mediation in that capacity. She appreciated the concept and saw it could work well. After her children left for college, she realized she had a little time available and, wanting to use it constructively, considered pro bono work. Perhaps serendipitously, she saw an interview with the Executive Director of the Jefferson County DRC, Cindy Bloodsworth, discussing an upcoming training session, as well as providing particulars about the application process. Mary Beth had received her sign. She applied to her local DRC, and was chosen for a 1996 training session.

How does one become involved with a local DRC? The first step is to find one’s local DRC. One can find a comprehensive list at the ADR Section of the State Bar of Texas web-site,3 located at http://www.texasadr.org/links.html. In addition to completing an initial application at the Jefferson County DRC, Mary Beth was required to write a short essay explaining why she wanted to become a mediator. While the requirements may differ for different DRCs and/or locales, typically at least two letters of reference are obligatory, as well as a personal interview. Upon completion of these steps, the selection is made from the applicants based on the Center’s needs at the time. Generally, Jefferson County has a training class consisting of approximately 25 mediators every two years for basic 40-hour training.

Mary Beth explains that mediators are statutorily required to have 40-hour basic training, and an additional 24 hours of family training for cases involving familial issues. The Jefferson County DRC requires a further five hours of training for victim offender cases, and another five hours of training for court-annexed cases. Finally, an annual continuing education requirement of 10 hours per year is assessed.4

The Jefferson County DRC also maintains an Ethics Review Committee and a Peer Review Committee. The members of each are elected by their mediator peers. This is yet another option for paralegal mediators, as Mary Beth has been honored to serve several terms on the Ethics Review Committee. She states it’s imperative to the Jefferson County DRC mediators that the high quality of their services remains faithful to its intended purpose.

So what does the paralegal mediator actually do?5  Mediators perform mediations, of course, but in addition to that, the Jefferson County DRC has an active Speakers Bureau, of which Mary Beth is also a member. When the need arises, members of the Speakers Bureau address various civic groups to provide information about mediation specifically, and about the DRC generally. One of the biggest challenges facing DRCs is getting the word out to residents that the DRCs are available to help. In that regard, members of the Speakers Bureau often man booths at various functions to distribute literature and speak to local residents, or at college classes, as well as many other functions. One of Jefferson County’s local television stations partners with the DRC once a year, allowing them to man a telephone bank at the station . This is a huge public service that is always well received by the community. Moreover, Mary Beth participates in the DRC training program as well by assisting in the training of new mediators.

The mediation process actually begins well before anyone gets to the table. Typically, interested parties initiate contact with a DRC and speak with a case manager, who subsequently notifies all parties involved of the time and place for a scheduled mediation. The mediators are provided with the paperwork requesting the mediation, along with a brief description of the type of case to be mediated. Once the parties arrive, they are shown to the area where the mediation will take place (in Jefferson County, it is often in one of the courtrooms), so the process can begin.

Mary Beth’s usual procedure is to begin the session with a brief opening statement explaining the process and outlining how the negotiations will work. Mediators typically introduce themselves, welcome the parties, and let them know that their attendance is appreciated. Mediators characteristically assure the parties that they look forward to working with the parties in order to resolve the dispute that exists between them.

It is further stressed that mediation is an informal meeting, and everyone is encouraged to speak openly and freely. The proceeding is private and absolutely confidential, thus the mediators can confidently assure the parties that what happens in mediation will not be disclosed, nor can it be used against the parties in court 6 by the mediators (other than to report whether an agreement was reached, or to report that, when ordered by the Court, the parties reported as scheduled).

Says Mary Beth:

Since many who come to mediation are not familiar with the process, we explain our role as trained neutrals, advising them that we are not attorneys (or for those who are – that we are not functioning as an attorney for this process), nor judges, and we will not make decisions for them. Our role is to help them clarify the issues that exist between or amongst them, and to explore options that might settle the matter for them.

Their role in the process is to tell their side of the story, and to state how they would like to see the matter resolved. The mediators tell the parties that while we must know some of the past history, the reason we are at the mediation is to focus on the future – what can be done from this point forward to resolve the matter for them.

Once the parties reach an agreement (hopefully), the mediators will put it in writing, which all parties can then read and sign.

For Mary Beth, the amount of hours she has worked in mediation varies. She states she has been recognized for volunteering for 100+ hours per year in the past. In recent years, with her school commitments, she had to limit her mediations to about once a month, for a two- to three hour period. Now that she has finished school, however, she may increase the number of times she mediates per month. One consideration for other paralegals interested in this area is the versatility, not to mention the utility.

Mary Beth swears by the mediation process. She feels gratified knowing people have come to a resolution of their own problems, and she can literally see the peace that it provides to them. What is the future for mediations? As far as trends go, Mary Beth is seeing an increase in family cases, as well as court annexed and victim-offender cases. As stated earlier, one of the biggest challenges is making citizens aware of the services that DRCs provide. Regardless, she believes there are many opportunities for paralegals in the mediation field. It is different from what many of us are used to seeing in litigation in that it’s not an adversarial practice. It is believed that we will continue to see the use of mediation as a method of alternative dispute resolution rise in the future, particularly in family matters, which often can be further aggrieved by the adversarial nature encountered in courts.

For Mary Beth, she believes that paralegal training will help in a mediation practice by giving a mediator a well-rounded view of many different types of situations and, she avers, by helping the paralegal to relate to the parties that come to the mediation table.

If you think you might be interested in becoming a mediator, or feel that you might be temperamentally suited for it, Mary Beth enthusiastically suggests investigating that feeling. Many counties in Texas now have DRCs. Go online, check out your local bar association, or call your local DRC about the opportunities that may exist for you.

Says Mary Beth: “For me, it was one of the best decisions I have ever made.”

NOTES
1
Chapter 154 of the Texas Civil Practice and Remedies Code deals with “Alternative Dispute Resolution Procedures,” and mediator qualifications are listed in §154.052: QUALIFICATIONS OF IMPARTIAL THIRD PARTY (located on the web at http://tlo2.tlc.state.tx.us/statutes/cp.toc.htm).

2
In 1987, the Texas Legislature enacted the Texas Alternative Dispute Resolution Procedures Act, T EX . C IV . P RAC . & R EM . C ODE A NN . 154.001.073. One of the major accomplishments of this legislation was the assurance of confidentiality, coupled with the non-adversarial nature of the negotiations, so as to facilitate a constructive agreement between parties.

3
Paralegals are welcome to join the ADR Section of the State Bar of Texas. For on online application, see http://www.texasadr.org/join_us.html.

4
For paralegals interested in mediation training, one option is taking the course at Texas Women’s University, with campuses located in Denton, Dallas, and Houston, though classes are typically held at the Denton location. Information can be found on the Web at http://www.twu.edu/ce/Mediation-Courses.asp. Another option, as illustrated by Mary Beth Jones, is to apply for a training class at a local DRC. For a list of ADR centers currently operating in Texas, and for other ADR resources, please see the Alternative Dispute Resolution Section of the State Bar of Texas at http://www.texasadr.org/links.html. Interested candidates can also check with their local bar associations for other course options.

5
There is a plethora of web-sites with respect to mediation available, chief among them are the Texas Association of Mediators at http://www.tcmediator.org and the Alternative Dispute Resolution Section of the State Bar of Texas at http://www.texasadr.org/index.html.

6
See The 1987 Texas ADR Act listed in Note 2.

Texas Paralegal Journal © Copyright 2009 by the Paralegal Division, State Bar of Texas.

Sami Hartsfield
 

   

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 Copyright 2011 Sami K. Hartsfield – All Rights Reserved

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