Impartial Third Party Facilitating Alternative Dispute Resolution

alternative dispute resolutionIf you read our recent blog post entitled, “Seven Ways to Resolve Your Personal Injury Case,” you may have noticed a number of references to “an impartial third party” when discussing various forms of alternative dispute resolution.  An impartial third party is a person with no personal, financial or official interest in the disputed matter he or she has agreed to facilitate.  Types of alternative dispute resolution that rely on impartial third parties include the following:

  • Mini-trials
  • Moderated settlement conferences
  • Arbitration

Qualifications of Impartial Third Parties

In order to be considered an impartial third party under the laws of Texas, there are a number of qualifications that must be met.  It is not sufficient for a person to simply declare him or herself to be impartial.  As a general rule, in order to qualify as someone who the court may appoint to sit as an impartial third party, the person must have completed 40 hours of training in the area of dispute resolution.

In cases where the impartial third party wishes to participate in disputes relating to the parent-child relationships, the person must complete an additional 24 hours of training.  This training must be in the fields of child development, family law, and family dynamics.

There is an exception to these requirements.  Whether someone qualifies for such an exception is up to the court’s discretion.  Texas law allows the appointment of someone who has not met the minimum training requirements to be appointed as an impartial third party where they have professional training or legal training or expertise in the particular area of the law where an impartial third party is needed.

Standards and Duties of Impartial Third Parties

There are several standards and duties imposed upon impartial third parties who are appointed to facilitate one of the above referenced alternative dispute resolution procedures.  First, an impartial third party is duty bound to encourage the parties to reach a settlement.  This can be done by encouraging the parties to consider the evidence, position of the other side, risks of trial, and finality of settlement.  However, impartial third parties are specifically cautioned under Texas law that they may not compel a settlement agreement, or coerce the parties to settle.

There are times when one party will provide the impartial third party information that he or she does not want to be disclosed to the other party.  Attorneys who participate in alternative dispute resolution know that some information can be classified as confidential.  In a situation where a party discloses to the impartial third party information that is confidential, the impartial third party is prohibited from disclosing that information to the other side, unless such disclosure is expressly authorized by the person who disclosed the confidential information.

Additionally, the proceedings themselves are classified as confidential.  This means even things such as the conduct of the parties during the alternative dispute resolution procedure is confidential.  Similarly, the demeanor of the parties, including the demeanor of counsel, is confidential.  The impartial third party is not allowed to disclose these things to anyone – not even a court that appointed the impartial third party in the first place.  There is an exception to this confidentiality rule if the parties agree to the impartial third party disclosing the information.

Sometimes, alternative dispute resolution proceedings are recorded by a court reporter, who takes down all the words spoken at the hearing.  This transcript can then be made available for review to the parties and the impartial third party.  The purpose of this is to allow the impartial third party to rely on the written record, not his or her memories and notes, when making recommendations about who he or she considers liable, to what extent, and the amount of appropriate damages.  Even then, however, the record is confidential under the laws of the state of Texas.  Not even the appointing court can compel the transcript or ask the impartial third party to testify as to the contents of the transcript.

Exceptions to Confidentiality

There are, however, some exceptions to the rules of confidentiality.  If a statement is made, or a written document is used in an alternative dispute resolution procedure would be considered admissible or discoverable independent of the alternative dispute resolution procedure, then it is considered admissible and discoverable in any subsequent hearing or case proceeding, if the case is not resolved by the alternative dispute resolution procedure.

If a governmental body is one of the parties, there are additional rules about the disclosure of any final written agreements the parties may enter into.

Sometimes, even when there are lawyers representing both sides, there is a dispute as to whether or not something is confidential.  When this happens, a court can do an “in camera review” of the information to decide whether the information is protected by the confidentiality rules.  This means the impartial third party, or the lawyers, will present the information to the court, off the record, for the court to review.  The court can then make a determination of whether or not the facts and circumstances warrant the label of confidential or whether the information falls under the category of discoverable and admissible.

The final exception to the rules of confidentiality that the impartial third party is bound by is under duties to report certain conduct.  Parties have a duty to report abuse or neglect as defined by the Family Law Code, if they learn of it during alternative dispute resolution proceedings.  Further, parties, including the impartial third party, are duty bound to disclose information about abuse, neglect, or exploitation if it violates the terms and conditions of the Human Resources Code of the state of Texas.

How Are Impartial Third Parties Paid?

The appointing court is allowed to set a “reasonable fee” for the impartial third party’s services.  When the parties are working to settle their cases, the responsibility for the fees of the impartial third party’s services may be part of the negotiations.  Frequently, the parties split the fee for the impartial third party.

When Is Alternative Dispute Resolution a Good Idea?

Every case is fact specific.  Careful consideration should be given to alternative dispute resolution in every case.  Factors to consider include the wants and needs of the client, the wants and needs of the other party, the court’s opinion on the matter, whether the parties can come to an agreement without the assistance of formal proceedings and many other factors.

To Learn More, Contact a Personal Injury Attorney Today

An experienced personal injury lawyer can help you decide whether alternative dispute resolution is a good idea in your case. Contact Brylak Law today for an initial consultation.

2017-05-11T18:52:46+00:00