San Marcos Mercury | Local News from San Marcos and Hays County, Texas

September 8th, 2009
County aims for dispute resolution system

Central Texas Alternative Dispute Resolution, Inc. President Walt L. Krudop, center, speaks with Hays County Judge Liz Sumter, left, at the Sept. 1 commissioners court meeting. Hays County Precinct 3 Commissioner Will Conley is in the background. Photo by Sean Batura.

By SEAN BATURA
News Reporter

Hays County residents may soon have quicker, less expensive and more flexible means of resolving family and civil disputes, even if the change isn’t universally embraced in the local legal profession.

Hays County Commissioners voted 4-1 last week to create an alternative dispute resolution (ADR) system, whereby interested parties would be provided with trained mediators to facilitate mutually agreed upon settlements out of court. The ADR system will be funded with fees collected from everyone who files a case in district, county or justice of the peace (JP) courts, whether or not they use the mediation service.

The involuntary funding mechanism was one reason Hays County Precinct 3 Commissioner Will Conley (R-San Marcos) said he voted against establishing the ADR system.

“It’s not something that we legislatively have to do,” Conley said in commissioners court on Aug. 11. “I think it’s a tough time to be raising fees that aren’t directly coming into the county coffers, and (to be) creating new government departments … (considering) the lack of support from the district (judges) in our county, who I hold in high regard … That’s their field of expertise. I’m taking their opinion strongly. I’m also uncomfortable with the exemption of the bidding process.”

The vote allows Hays County Judge Liz Sumter (D-Wimberley) to utilize a statutory competitive bidding exemption to negotiate a contract with Central Texas Alternative Dispute Resolution, Inc. (CTADR). CTADR is a 501(c)3 organization created after a steering committee appointed about a year ago by Sumter decided an ADR system would be a good idea for the county. Once the commissioners court approves the contract — which would come up for renewal annually — CTADR would provide mediation services free of charge or at below market rates.

“The point of (mediation), is people are in control of their own destiny,” said CTADR Secretary and Executive Director Anna Bartkowski. “When they go before a judge, it’s a third party who is deciding how best they should resolve their dispute. The idea is to put the control back into the hands of the people who are having the problem.”

The ADR system would allow interested parties to use mediation services before or after they file cases. Judges would have the discretion to order cases to mediation.

Anna Martinez Boling, recently appointed Judge in Hays County Court at Law No. 1, was on the dispute resolution center steering committee. Boling, former chair of the Hays County Democratic Party, said family and civil mediation on the open market usually costs $150-$200 per hour at a four-hour minimum. Bartkowski, a professional mediator, said non-subsidized mediation can cost from $200-$250 an hour, or $400 for half a day and $900 for a full day.

CTADR officers say the organization will charge no more than $50 for a three-hour mediation, and will use a sliding scale or offer free services depending upon a party’s financial situation. CTADR officers say they will not take cases in which the disputed amount exceeds $50,000, and will not offer family mediation services, such as divorce cases, involving couples with a combined income of more than $60,000.

“We don’t want to feel like our business is being taken from us,” said Boling, an attorney and professional mediator. “So (mediator-attorneys) support the caps.”

Hays County Precinct 2 Justice of the Peace Beth Smith said she has no plans to utilize the new ADR system. Smith said she has only referred one case to mediation in the last eight years.

“I was elected to hear these cases, and I will hear them,” Smith said.

Smith said half of her cases are resolved by the disputants themselves after she gets them to talk to one another out of her presence, though she said this does not work in eviction cases. Smith said she does not like the $5 mandatory fee imposed by the new ADR system on people who file civil cases in JP courts. The ADR system is also funded by $15 per civil case filing fees in district and county courts.

Sumter has already allocated $20,000 for CTADR in the proposed Fiscal Year 2010 budget. Bartkowski said CTADR can subsist solely on filing fees and grants in its fourth year of operation.

“My court has been described as being the guinea pig for this thing, but it’s really not,” said Hays County Precinct 4 Justice of the Peace Terry Kyle, who serves the Dripping Springs area. “It’s really not a new concept. It’s been successful in other places.”

Kyle’s court has hosted about five successful CTADR mediations in the last three months. CTADR conducted the mediations free of charge.

Hays County is now the 40th Texas county to institute an ADR system. An act of the Texas Legislature in 1987 amended Texas Code to advocate “alternative methods of dispute resolution.”

According to Section 154.002-3 of Title 7 in the code, “It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures … It is the responsibility of all trial and appellate courts and their court administrators to carry out the policy under Section 154.002.”

Boling, who has offered to temporarily donate office space to CTADR, joined Hays County Assistant Criminal District Attorney Mark Zuniga at the commissioners court meeting on Aug. 11 to describe how Child Protective Services (CPS) cases may lend themselves well to ADR. Zuniga described a CPS case he mediated for 12 hours with Boling that resulted in a complex, 50-page visitation schedule for the parents and two sets of grandparents. Zuniga said that, by his calculation, a 12-hour mediation saved the county $18,390 in costs that would have been incurred had the case proceeded to a jury trial.

“We could not have gotten that in trial,” Zuniga said.

Zuniga said he was involved in a four-day trial in December that cost the county $13,221, an amount he said could have been saved had the case been mediated. Zuniga said 40 such cases since January 2008 could have been mediated.

“We would have saved the county money … and would have given families the opportunity to come up with unique solutions,” Zuniga said.

Bartkowski said that if CTADR is to do many CPS mediations, it will need more funding than is currently available. Bartkowski said CTADR has a CPS mediation scheduled next week and a second the following week. Because the organization does not yet have a contract with the county, Bartkowski and CTADR President Walter L. Krudop will do the mediations free of charge. CTADR has a family case scheduled that will be mediated in Spanish.

The commissioners court is likely to approve a contract with CTADR in two weeks.

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5 thoughts on “County aims for dispute resolution system

  1. I really must be getting old. I need someone to explain this mediation thing to me because I thought that was what attorneys were for in the first place. Now, in addition to an attorney, I need a professional mediator?

    It does sound like it can save the county money. But then, there are lots of hints in this story that this new process will need more money – office space, cannot exist solely on fees and grants, etc. I think the county needs a very good accounting of this process during the first year.

  2. So it’s like family court without the court. Sic the lawyers on each other without a judge or jury? That can’t go well.

  3. Most family law cases right now are settled through mediation. It is only when mediation fails that you have a contested hearing in a divorce.

    Two things the article left out, or did not make clear. State law mandates that once a county reaches a population of 150,000, it has to have a dispute resolution center. Hays has reached that threshold. Many of the cases that go to these centers in other counties are the type cases that got to Justice of the Peace Courts, such as small claims, disputes between neighbors, landlord-tenant, that type thing.

  4. Just to clarify, state law does not currently require counties to create DRCs. However, Chapter 155 under Title 7 of the Civil Practice and Remedies Code requires judges of each judicial district in counties with populations of over 150,000 to “facilitate the voluntary settlement of civil and family law cases” filed in district courts, constitutional and statutory county courts, and family law courts for a period of two weeks. Any lawyer approved by a judge could participate in a settlement week. The law allows the judges to expend public funds to “to carry out the purpose and intent of this chapter,” but some CTADR folks told me the mediators do pro bono work in connection with a settlement week. Commissioner Barton said it would be a couple years before the county is required to have settlement weeks. Bartkowski did tell commissioners court members that an ADR would help prepare the county for settlement weeks. Also, Chapter 155 does require judges during settlement week to “cooperate” with the director of an established DRC “to encourage participation and to develop public awareness of settlement weeks,” and allows judges to include DRC directors in committees created “to effectuate each settlement week.” The Chapter requires the administrative judge of each judicial district to create such a committee.

  5. Lila, mediation is (typically) a one-day meeting between the parties and third party mediator. The mediator talks to all sides and tries to get them to reach a settlement. Some mediators are very nice; others twist arms. It depends on the mediator and the needs of the parties.

    Mediation usually happens when most, if not all, of the discovery in the case has been completed. It is substantially cheaper, quicker and less emotionally devastating than trial. In family law cases, it allows the family to construct unique solutions to problems, like visitation with a parent who works on the weekends.

    Mediation itself is widely accepted and uncontroversial. In this case, the opponents disliked using increased filing fees to pay for a nonprofit system for mediating low-fee cases.

    To correct my friend Larry Rasco, state law will not require a dispute resolution center per se, but will require “settlement week,” where the courts will be have to facilitate mediation. The dispute resolution center would be the county’s tool for addressing settlement week.

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