From the federal government to the smallest municipality, each bureaucracy is designed for a specific, unique function. In this labyrinth, each component can function independently; it is easy to lose sight that they best serve the public by becoming interdependent systems. The justice system in the United States is diverse and complex. One component that can enhance services provided by the courts is alternative dispute resolution (ADR). This can include various styles of mediation for enabling parties to make decisions about the outcome of their litigation, rather than courts. ADR can also include arbitration and panel evaluations. It can similarly be used to educate current and potential disputants about how the justice system works and what to expect. By providing ADR services, a court system can build a partnership to better serve its constituents in a variety of matters. In Texas, Lubbock County developed an innovative ADR system by establishing a cohesive process for the local justice systems.
Unlike many other states, Texas does not have a uniform, statewide ADR delivery system. Responsibility for providing ADR services rests with each individual county and their respective elected officials. Consequently, since the passage of the 1983 and 1987 ADR statutes,1 a very diverse delivery system has emerged in Texas.
History of Development in Lubbock County
Lubbock County’s public ADR system was created in 1985 when the county commissioners contracted with the South Plains Association of Governments (SPAG) to develop services for Lubbock County citizens.2 Most of the early referrals for mediation services in Lubbock County came from individuals and the criminal district attorney (CDA). In Harris County (Houston), volunteer mediators began mediating cases from the county attorney in 1980. Other counties—Dallas, Tarrant (Fort Worth), Travis (Austin), Nueces (Corpus Christi), Jefferson (Beaumont), and Bexar (San Antonio)—followed Harris County’s model with variations in their respective organizational structures and services. None of these counties had a consistent process for receiving referrals from the courts.
Lubbock County decided a system should comprise various entities, which could engage and serve persons with disputes. Thus, SPAG created an advisory body to provide guidance and policy recommendations for the system. The group comprised individuals from law enforcement, prosecutors’ offices, courts, the local bar, the Better Business Bureau, school districts, city and county offices, and various consumer/focus groups. Numerous issues were discussed, including types of disputes, the referral process, and ADR options as allowed by statute. This collaboration helped create an environment that used mediation and evaluation panels as a viable alternative for resolving disputes in Lubbock County.
In 1989 the Lubbock County Board of Judges took control of the delivery of mediation services by sanctioning mandatory family mediation, becoming the first court system in Texas to require all aspects of a family case be mediated.3 This was a conscious decision, as the judges believed family litigation issues could not normally be bifurcated. Dallas County had implemented a custody mediation service but would not allow for mediation of non-custody issues. The Board of Judges also required litigants to attend an orientation session before mediating. These weekly, one-hour orientation sessions explained what mediation was, how to prepare for mediation sessions, what is negotiable, and other pertinent information. After an individual attended orientation, the mediation session was scheduled. By rule, attorneys were not allowed to attend mediation sessions with clients. This process for family cases was maintained for nearly a decade, until orientation sessions were curtailed and attorneys began attending mediations with their clients.
Two years later, Lubbock’s Board of Judges implemented mandatory mediation or panel evaluations for all non-family litigation. With the success of family and civil mediations, the judges eventually adopted a standard scheduling order incorporating mandatory mediation procedures, which is still used today. Settlement weeks were also begun to promote the use of mediation to resolve cases.4 Using the scheduling-order (SO) process, created in 2001 with the assistance of the Texas Office of Court Administration (OCA), every litigant must fulfill the mediation requirement unless exempted by the court. The SO allows litigants an option to mediate with a qualified private mediator by a certain date or appear at the Office of Dispute Resolution on a specific date for mediation. Litigants are given the opportunity to select from the department’s rotation of qualified mediators.
The new century also began with significant organizational changes. Lubbock County terminated the contract with SPAG and created a dispute resolution department. Thus, the Office of Dispute Resolution became directly accountable to the courts with an at-will director appointed by the Board of Judges. The advisory body created by SPAG was retained to counsel the director and the Board of Judges on matters directly related to the department.5
Considering all the success and progress made in over three decades, some may question how an ADR system has benefited the courts in Lubbock County. One example is that while the county’s population has grown by 25 percent (to over 300,000) since the inception of the county’s uniform ADR delivery system, no new district courts or county courts-at-law have been added since 1991, leading to a significant cost savings for taxpayers. Several other Texas counties with comparable populations have more district courts and county courts-at-law than Lubbock. State data also indicate Lubbock County has fewer post-litigation filings for custody and enforcement matters than other jurisdictions. No other Texas county/public agency proportionally schedules more mediations than Lubbock. Numerically, the department currently ranges between 2,400 and 3,000 inquiries and referrals annually.
Furthermore, the Office of Dispute Resolution receives no general revenue from the county or state. The department is self-supporting, with funding derived from filing fees, participant fees, contracts, and grant revenue. These funds currently provide for five full-time employees and several part-time student employees, whose tasks are divided between the various dispute resolution and domestic relations services.
More Services for Families
With encouragement from the Board of Judges, the county commissioners created a Domestic Relations Office (DRO) in 2006, within the Office of Dispute Resolution. The DRO, authorized by the Family Code,6 allows for more support services to litigating families. Of the allowed services, Lubbock County provides adoption evaluations, parent coordinator/facilitator services, supervised visitation, community supervision of noncustodial parents, and friend-of-the-court services. These options complement mediation as tools for parents to use in their resolution agreements.
Mediation services are provided to individuals involved with access and visitation matters concerning their children. The IV-D (child support) court can refer a case, or one or both parents may request a mediation to address matters to facilitate more interaction between them. Statistically, over 50 percent of Lubbock County’s family litigation are IV-D cases. To assist with access and visitation services, a collaboration with the Texas Tech University School of Law allows law students in the family clinic be assigned to cases if unrepresented parties meet eligible income requirements.
Various aspects of criminal referrals and mediation policies established in 1986 are still operational today. The elected CDA in 1985 stated that assistant district attorneys (ADAs) would not attend mediation with victims and offenders.7 Defense attorneys are made aware that information discussed in mediation will not be used by the CDA, and any mediation agreement must make the victim whole. The CDA can still file after mediation, but the author is unaware of any criminal filing after a case was successfully resolved. Law-enforcement officers are also encouraged to make recommendations in their reports regarding whether a case should be referred to mediation. Officers are provided business cards for distribution to citizens if they deem it appropriate. Attorneys and judges can suggest that a criminal case be referred to mediation; however, under Texas law, the prosecutor, victim, and offender must agree to the referral.8 Thus, judges cannot make referrals independently of a prosecutor. All the diversion mediation services provided by the department were implemented with permission of the CDA or city prosecutor.
Prosecutors use the ADR system for various types of criminal cases for juveniles, minors (ages 17-21), and adults. The focus of mediation for minors is on those who have a first-time alcohol- or drug-related offense. Most of this population are university students still dependent on their parents. Rather than treat the offense as a victimless crime, parents participate as the victim. If a parent or guardian cannot attend a mediation in person, various audio or video connections are used to ensure participation. Attorneys generally do not attend these sessions. These mediations have a 90 percent compliance rate.
Mediation services are available for various types of juvenile cases. Referrals come from the justice and municipal courts, law enforcement, and schools. Juveniles participate in mediation with their parents, victims, or both. According to local data, of the 200 cases received between September 2017 and August 2018, 37 were noncompliant with the agreement they created.
Furthermore, special efforts have been made on behalf of veterans involved with a criminal charge. The local mental health authority is actively involved in assisting veterans with a variety of charges, and mediation is a tool to help veterans get help with counseling, substance abuse treatment, etc. Similarly, these cases are not victimless. Family members or a victim are asked to participate. There is no fee charged for most criminal mediation matters; however, reduced fees are assessed to veterans for civil or family matters.
For a short time, the department successfully mediated bail-bond forfeitures, until the practice was discontinued.
Forty-one states have entities designated by their governors to provide services for United States Department of Agriculture (USDA) consumers involved with a dispute about an aspect of USDA policy or procedures. Lubbock County is the state’s provider for USDA mediation services. Most of the Texas USDA disputants reside in West Texas, allowing Lubbock County to maintain a core of qualified mediators for these cases. Most mediators have agricultural backgrounds and are knowledgeable about various USDA provisions. Additionally, federal regulations for these mediators require certain biannual continuing education.9 USDA mediators receive an hourly mediation fee of $75.00 plus expenses. To facilitate the use of mediation for USDA matters, Lubbock County is the primary sponsor for the state bar’s annual agricultural law seminar held in Lubbock. The venue provides an opportunity to educate attorneys who specialize in agriculture matters.
Periodically, the department is asked to mediate other matters involving civil-rights issues; the most common are ADA (Americans with Disabilities Act) referrals. These cases are mediated in the same manner as other mediation cases, and mediators who facilitate these sessions have received the appropriate training to do so. Fees for this service are paid by the requesting agency.
To enhance the training and mediation services offered by the department throughout the state, marketing names were trademarked: “Texas Dispute Resolution System” and “Texas Rural Mediation Services.” The mediator training available in Lubbock County is part of the department’s statewide Texas Dispute Resolution System™. Individualized workshops are also provided as requested or needed. Over the years, various themed conferences, such as health care, guardianship, juvenile, and access to justice, have been held. This sharing of information and expertise is essential to the continued growth and function of public ADR systems at the state and national level.
Access of Lubbock County Services to Others
The Office of Dispute Resolution currently provides services for the county’s district courts, county courts-at-law, associate judges, and probate court; the four county justice courts and the City of Lubbock’s municipal courts also use these services. The Lubbock County Board of Judges has also allowed rural courts and prosecutors access to the system. Rural courts and prosecutors can refer cases to Lubbock County, and, depending on the circumstances, mediations are held in the requesting county. In accordance with court policy, all mediations must be in an ADA-accessible facility, including sign language and language translation services provided by the referring county at no cost to the litigants.
To assist rural counties in providing dispute resolution services, the department had started a statewide VISTA project. This indirectly created numerous organizational issues, and the project was terminated. As mentioned above, the office still provides services to surrounding counties; however, there is still a need for services statewide.
Judicial commitment facilitated the above achievements. The Board of Judges developed local rules outlining their expectations for dispute resolution, and the justice courts (JPs) adopted similar rules. Court coordinators make sure the Office of Dispute Resolution has the necessary documents and orders in coordination with the respective clerk through the e-file system. Having access to court documents addresses numerous questions that can arise during a court-ordered mediation. Court administration provides information and suggestions as needed in dispute resolution matters. Currently, the Texas Office of Court Administration has selected Lubbock County as one of two county court systems to participate in OCA’s online dispute resolution project with the National Center for State Courts and the Pew and Meadows foundations.
As a county department accountable to the courts, security services are part of the culture. The Office of Dispute Resolution’s floor is a safe zone. Signs are posted indicating that weapons are not allowed. By rule, law-enforcement uniforms cannot be worn during a mediation by a named party. Arrests and service are not allowed during a mediation, unless the appropriate judge has authorized the variance. Mediation files and other documents in the department’s possession are not records and are not retained and, thus, not accessible to the court or public.10 Family agreements are e-filed, but other mediation agreements are not. The department’s staff has a responsibility to monitor content and quality to minimize unnecessary future judicial activity. Additionally, no one is denied services because of an inability to pay for Lubbock County cases. Self-declarations are accepted in accordance with the Supreme Court of Texas Rule 145. The Lubbock County Board of Judges meets monthly, and the department director provides information regarding topics that may be of concern or interest to the judges.
Challenges for the Future
While Lubbock’s system has functioned for over three decades, there are areas needing improvement to benefit Lubbock County. Foremost has been the inability to sustain mediation services for juveniles. Peer mediation in the schools began in the early nineties. Unfortunately, the school district felt they could deliver the service more effectively; consequently, the partnership terminated. The department has recently been invited back to develop and implement a program for a local high school. Similarly, juvenile victim/offender mediation services have been intermittent for the past 25 years. While mediation is successful with juveniles involved with various criminal venues, there is resistance for using mediation in a comprehensive manner. Mediation services for university students, another project assumed by another entity, is now dormant. After nearly 20 years of providing mediation services for child-protection court cases, different negotiation venues are now used by the courts, unless an attorney requests mediation. Elder disputes and guardianship cases also need cultural paradigm shifts to achieve a level of tangible mediation activity.
While the department is actively involved with criminal cases and unrepresented parties, improvements are needed. The increasing numbers of unrepresented parties negatively affects mediation activities because of litigants’ lack of knowledge. As for criminal matters, while Lubbock is mediating more criminal disputes than any other county in Texas, the bar can be higher to better serve the victims and offenders of Lubbock County.11
Approximately 50 individuals are on the department’s three mediator rotations. These mediators are paid by litigants or receive a stipend. Participants from non-Lubbock courts are also required to pay the appropriate mediation fee, unless their county agrees to cover the expense. Mediators are paid for family cases at $100.00 per hour for attorneys, or $50.00 per hour for non-attorneys. Non-family litigation matters are mediated by attorneys and are paid at a rate of $100.00 per hour, per party. Non-district and county court-at-law cases are not assessed a mediation fee; mediators are provided a stipend of $40.00 or $50.00 per case. Some criminal cases are assessed a flat fee of $150.00 to cover the mediator stipend and monitoring expenses of the accused. Similar fees are assessed for other dispute resolution services, such as arbitrations and settlement panels. Professionals providing domestic relations services for select family cases are also compensated by the participating parties.
Mediators are required to comply with the Texas Supreme Court “Ethical Guidelines for Mediators.12 The guidelines address costs, necessary disclosures, qualifications, and conduct during sessions. All mediators in Lubbock County are knowledgeable of these guidelines and sign an appointment letter confirming this requirement.
Individuals on the mediation rotation are required to complete the statutorily mandated 40 hours of basic mediation training and 24 hours of family mediation training.13 The department also provides supplementary continuing education throughout each year. Some mediators have also completed guardianship mediation and arbitration training. In addition, the Texas Tech Law School’s Advanced ADR Clinic requires enrolled students to complete 15 clinical hours in mediating actual cases. These students have an opportunity to serve as the solo mediator or co-mediator for select cases.
Through various efforts, the Lubbock County ADR System has continued to advocate for various aspects of the mediation process. This advocacy has included filing amicus briefs with state and federal courts.14 Needed legislation has also been a priority.15 To date, more than ten amendments for various statutes have become law. The legislature also recognized ODR in 2010 for its service.
The department is preparing for new legal issues involving mediation. Statewide concerns are surfacing regarding the qualifications of mediators and compliance with the Texas Supreme Court’s guidelines. An aspect of this involves who has the duty to disclose to the client/participant that a private mediator has neither completed the training nor received an exemption from the court. Legislation is also consistently being introduced to create cumbersome mediator requirements that do not enhance the mediator’s skills or the process for users. Additionally, numerous mediation-training providers are conducting training, but are not compliant with state law. However, enforcement of this breach is weak, with some providers having operated for years without concern.
Another need is to educate the mediation community and users about the variations of the types of agreements. Texas law makes a distinction between a mediation agreement and a mediated settlement agreement. The court or parties, except in very narrow situations, cannot change a family agreement (mediated settlement agreement) that complies with provisions of the Family Code. Other types of agreements are not as definitive, and all agreements have different consequences if breached. As such, Texas continues to see an expanding array of appeals involving mediation agreements and mediated settlement agreements.
Lubbock County’s focus on developing and maintaining a cohesive judicial system will continue to benefit the users of Lubbock County’s court system. While this organizational system is unique to Texas, it can be duplicated in other Texas counties. Dallas County has begun, and several others are exploring judicial management of their respective public dispute resolution activities.
The author appreciates the comments, reviews, and assistance from the Lubbock County Board of Judges, Dispute Resolution Advisory Board, Tory Schuetz, Crystal Collins, Kristi Thompson, Kiara Bess, and Alayna Wright in the creation of this article.
ABOUT THE AUTHOR
D. Gene Valentini is the director of the Office of Dispute Resolution Department of Lubbock County, an administrative entity that manages an innovative ADR system, which began in 1985. A mediator since 1981 and an active trainer for many years, Gene is the master of dispute resolution for the courts of Lubbock County and an adjunct professor for the Texas Tech University School of Law.
- Texas Civil Practice and Remedies Code, Chapters 152 (1983) and 154 (1987).
- SPAG was the initiator for providing services.
- Judge Blair Cherry’s proposal was approved and implemented by Judge William Shaver, Judge John McFall, Judge Thomas Clinton, Judge Cecil Puryear, Judge Mackey Hancock, Judge Brad Underwood, and Associate Judge Paula Lanehart.
- Texas Civil Practice and Remedies Code, Chapter 155.
- Robert Wilson, standing Chapter 13 trustee for the Northern District of Texas, has served on the advisory board from the beginning. Other current members include the president-elect for the local area bar; family and criminal defense attorneys; law professors; and school district, prosecutor, law enforcement, and court personnel.
- Texas Family Code, Chapter 203.
- Judge Jim Bob Darnell of the 140th District Court was the first CDA to incorporate mediation as an option to resolve criminal complaints. Travis Ware, 99th District Court Judge William Sowder, Matt Powell, and Sunshine Stanek continued.
- Texas Civil Practice and Remedies Code 152.006.
- Code of Federal Regulations (CFR) 785.2.
- Texas Government Code, Chapter 441.091.
- Because of the number of victim/offender criminal mediations, a television production company wanted to develop a reality TV series.
- Texas Supreme Court Misc. Docket No. 05-9107, 2005.
- Texas Civil Practice and Remedies Code, Chapter 154.052.
- Probably the most significant filing was “In re Grand Jury Subpoena Dated December 17, 1996.” 148 F.3d 487 C.A.5 (Tex.), 1998.
- Senators John Montford, Robert Duncan, and now Charles Perry have introduced legislation that helps advance ADR in Texas. This legislation has been supported by Representatives Delwin Jones, John Frullo, and Dustin Burrows.