Options for Resolving Cases with Private Judging and Mediation

March 18, 2020

Dear Client:

            As you all know by now, by order of the Texas Supreme Court, all hearing or trials that are of a non-emergency nature have been by order of the Court postponed until at least April 13th, 2010.

            Of course, no one knows the course of this virus and how it will impact everything truly, but there are current rumors that the courthouse shutdown may extend beyond the current projection of April 13th.

            For those impacted by this emergency Order and have hearings and/or trials that you would like to be or that for their own reasons need to be heard sooner than later, there are some other options:

            (1)        The matter, hearing, or trial can be referred to mediation;

            (2)        The matter, hearing or trial can be referred to arbitration; and/or

            (3)        Chapter 151 of the Texas Civil Practice & Remedies Code authorizes parties to agree to have the matter be heard by “Special Judge Trial” where the parties agree to an order referring their case or matter to be heard by a private judge.

            All three of these options requires the parties to be in agreement, but do offer an opportunity to expedite your matter, hearing or trial and be heard or resolved faster than the process is allowing right now giving the corona virus concerns.

            Mediation

            Mediation is a voluntary process where the parties submit their issues with a family law professional that is a neutral professional with experience in family law.  The mediator will go back and forth between the parties (or given the circumstances mediations are being conducted by video conferencing) and seek to come to and negotiate and agreement. 

            The mediator is not a judge and can only make recommendations and not bind the parties to a decision.  Only the parties to agree to and mutually come to agreement in mediation for an agreement to be binding.  A mediation agreement, once set forth in writing and signed by the parties, becomes a binding agreement on the parties and can address interim or temporary issues as well as final issues.

I am a mediator and find that mediation is often very successful.  And, with the corona virus concerns, mediators are offering video conferencing and reduced rates as little as $100 per side which is normally closer to $150 or $200 per side.  Thus, quite frankly, now may be an excellent opportunity cost wise to try mediation.

            Arbitration

            While somewhat similar in how it effectively works, the primary difference with arbitration is that the process often has formal rules in the manner and means of presenting information and in the form of evidence.  Depending on how complex the issues are, witnesses or the parties may be called to testify and be cross examined.

            Arbitration requires the parties to obtain an Order of the Court referring the matter to arbitration.  In arbitration, the Arbitrator acts in a similar capacity as that of a Judge and the decisions of the Arbitrator are binding – subject to the approval of the Courts.

            Like mediation, arbitration can resolve issues that are interim or temporary or final issues and, after hearing the evidence and testimony of the parties and/or witnesses, once an arbitrator make his or her recommendation, that recommendation is then submitted to the Court for final approval.

            Special Judge Trials

            As stated above, Special Judge Trials are authorized by the Texas Civil Practices and remedies code.  Provided the parties are in agreement and the court approves, the Court can enter an order to refer any matter or case can be referred to be heard by a private judge.  A private judge is typically a retired judge with significant family law experience who charges a reasonable hourly rate to preside over the hearing, matter, or trial referred to the Judge.

            To submit a case for a Special Judge Trial requires a pleading to be filed with and an order to be signed by the court for it to be a valid proceedings. 

            Special Judge Trials are held in conference rooms or mock courtrooms that are available for this specific purpose.  Practically speaking, a Special Judge Trial is then no different than a trial at the courthouse other than the parties pay the cost of the private judge for his or her time as well as the court reporter for the establishment and making of an official record of the proceedings.  Just like a “normal trial”, the matter is tried as usual with an option for appeal, if any, directly to the 3rd Court of Appeals.

            The primary advantages of the private judge concept are the flexibility in scheduling, which can be scheduled around everyone’s availability rather than trying to manage the docket which is full of hundreds if not thousands of other cases trying to be heard as well.

            It is exceedingly rare for family law matters to be referred to arbitration and/or a Special Judge Trial – but under the circumstances with the concerns related to the Corona Virus these options should definitely be considered as the costs could far less than the costs of the potential considerable delay in resolving your matter timely.

            There are many professionals to choose from to meet the needs of your particular matter and should be decided on a case by case basis.  If you would like to take advantage of this opportunity of move your client’s case during this period, please contact me for more information. 

            If you believe one of these options are something you would like to consider, I will offer a $500 credit to any client whose case is submitted to mediation, arbitration or a Special Judge Trial to help offset the cost.  This offer applies to any and all cases currently pending but not yet set for mediation, arbitration or a special judge trial and is valid through April 30th, 2020 and we will offer a reduced rate for attorney fees at the mediation, arbitration, or special judge trial which can be discussed.

                                                                        Sincerely,

                                                                        James W. Evans