Opportunities for Paralegals as Mediators
Taking the Initial Steps

Walter A. Wright

I.            Paralegals can Step into Mediation—as Mediators.

            Paralegals function well in their traditional roles as assistants to attorneys and their clients during mediations,i but paralegals can also function as mediators.  Paralegals may not envision themselves as mediators because most of their contacts with mediation are through court-annexed cases, and attorneys and judges usually select attorney-mediators to mediate those cases.ii  Paralegals may even assume that a license to practice law is a prerequisite to becoming a mediator.  But mediation is used in many contexts other than litigation,iii and attorney-mediators are not necessarily preferred in those contexts.iv  Although Texas does have a statute that sets out training requirements for mediators who mediate court-annexed cases,v the statute does not require that mediators be licensed to practice law before they mediate court-annexed or any other cases.  In short, the mediation profession is open to paralegals.  

            Whether paralegals wish to become full-time, part-time, or volunteer mediators, they all should take certain initial steps on the path toward their new profession.  This article will describe four of those initial steps—training, experience, credentialing, and networking—and it will suggest ways to take those steps on solid ground.

II.         First Step:  Training.

            The Texas Alternative Dispute Resolution Procedures Act (hereinafter “ADR Act”)vi requires that court-appointed mediators complete at least forty hours of mediation training prior to receiving an appointment.vii  If a case involves a dispute affecting the parent-child relationship, the mediator must complete another twenty-four hours of training in the fields of family dynamics, child development, and family law before receiving an appointment.viii  In some instances, a court can waive these training requirements.ix  Although the ADR Act establishes minimum hours of mediation training for court-appointed mediators, it provides no details regarding the content of the training.  Moreover, no Texas statute governs training requirements for mediators who are not court-appointed.  

            The Texas Mediation Trainers Roundtable (hereinafter “TMTR”), an organization comprised of some of Texas’s most prominent mediation trainers, has attempted to fill the ADR Act’s training-content gap by establishing standards for mediation courses.  TMTR has adopted the ADR Act’s forty-hour requirement for basic mediation courses, and its standards govern training content, methodology, and administration.x  For courses in family mediation, TMTR has adopted a thirty-hour standard—six hours more than required by the ADR Act—to allow for training on domestic violence and provide students with more time for role plays.xi  In addition, TMTR has established standards for ethics training for mediators.xii  Because TMTR’s standards are recognized throughout Texas, paralegals should assure themselves, prior to enrolling in any type of mediation course for which TMTR has established standards, that the course meets those standards.xiii

            In addition to determining that a basic mediation course meets TMTR’s minimum standards, paralegals should inquire about the mediation model they will learn during the course.  When attorneys learn to be mediators, they often take courses that instruct them in the “caucus” or “shuttle diplomat” mediation model, which includes the caucusxiv as an integral part of the model.  Because many attorneys prefer to use this model when resolving cases pending in court, paralegals often are very familiar with it.  But paralegals who become mediators are more likely to intervene in cases not yet pending in court, where the preservation of ongoing relationships may be a fundamental goal.  The “conference” model, which stresses direct communication between parties and relies on caucus only when direct communication is not productive or appropriate, is often preferred as a model for preserving relationships.  Therefore, paralegals should consider making their first basic mediation course one that teaches the conference model.

            Mediation training courses are offered throughout Texas, and at least one course is designed specifically for paralegals.  The Legal Studies Program at Texas State University offers a basic mediation course that trains paralegal students in the conference mediation model.xv  Other universitiesxvi and private organizationsxvii offer excellent mediation courses, and the seventeen Dispute Resolution Centers (hereinafter “DRCs”) located throughout Texasxviii often offer basic mediation training at very reasonable prices.  Many mediation training courses are listed on the online training calendar that the Texas Association of Mediators maintains.xix

III. Second Step:  Experience.

            While abundant sources of excellent mediation training exist throughout Texas, sources of initial mediation experience are not so plentiful.  One of the challenges new mediators often face is finding their first cases to mediate.  Paralegals who are considering becoming mediators should investigate whether they will be able to acquire mediation experience once they complete their mediation training. 

            Because mediation is a competitive field, many mediators conduct their first mediations as volunteers.  Texas’s DRCs,xx which rely on volunteers to mediate the cases they receive, often welcome new mediators and provide them with excellent mediation experiences.xxi  Some Texas Better Business Bureaus, especially the one in Houston,xxii have active mediation programs that offer volunteer mediators valuable experience mediating complaints filed against businesses.xxiii  Other volunteer opportunities sometimes can be found in government agencies, schools, churches, and community associations.

            Online-dispute-resolution (hereinafter “ODR”) companies can be additional sources of early mediation experiences.  For example, SquareTrade, which has a contract to mediate eBay disputes, accepts applications from mediators who are interested in ODR.xxiv  When SquareTrade accepts a mediator’s application, it provides the mediator with free ODR training and immediate ODR experience.  SquareTrade compensates its mediators based upon the dispute arena.xxv  Compensation for mediating eBay disputes is relatively low, but a mediator who wants to acquire experience can generate a docket of dozens of cases within a relatively short time.

            Full-time employment as mediators or mediation administrators is sometimes possible for new mediators who vigilantly search for opportunities as they arise.  The National Association for Community Mediation’s Web page lists community-mediation job opportunities as they open throughout the country.xxvi   Fresno Pacific University’s Center for Peacemaking and Conflict Studies lists mediation, peacebuilding, and restorative-justice jobs on its Web page.xxvii  Mediate.com, an excellent online source of information about mediation, posts employment opportunities at its Meeting Hall,xxviii and the Straus Institute for Dispute Resolution at Pepperdine University posts new jobs on its Web page.xxix

IV.       Third Step:  Credentialing.

            Because the mediation profession is largely unregulated in Texas, mediators—especially new ones—may find it difficult to demonstrate to potential clients that they are qualified to mediate cases and that they will perform ethically.  To address this concern, the Texas Mediator Credentialing Association (hereinafter “TMCA”), comprised of representatives from every major mediation constituency in the state, developed a set of voluntary standards through which Texas mediators can demonstrate their mediation qualifications and their commitment to ethical mediation practice.xxx  In addition to creating three categories of credentialed mediators—credentialed, credentialed advanced, and credentialed distinguishedxxxi—TMCA created a special category for trained mediators who have little or no mediation experience; the category is called candidate for credentialed mediator.xxxii  Moreover, TMCA established Standards of Practice and a Code of Ethics to which all members of the organization must agree to adhere and which is backed by a grievance process through which members can be disciplined.xxxiii  Paralegals who decide to become Texas mediators should consider joining TMCA, as candidates for credentialed mediators, as soon as they complete their initial mediation training, and they should become credentialed mediators as soon as they meet the initial training and experience requirements of one of the credentialed-mediator categories. 

V.            Fourth Step:  Networking.

            Every new mediator needs a network of colleagues who can act as mentors, sources of business, and connections to innovations in mediation.  Without such a network, mediation practice can be lonely and unprofitable.  While networking may not be a favorite activity of many new mediators, it is one of the essential first steps of building a successful mediation practice.

In Texas, two organizations can assist a new mediator in establishing a network of colleagues.  The Texas Association of Mediators (hereinafter “TAM”), an inclusive organization that represents mediators from all professional backgrounds and practice areas, is known for its first-rate quarterly newsletter and its outstanding conferences that feature mediation professionals of national and international renown.  TAM members also have access to reasonably priced malpractice insurance.xxxiv  The Alternative Dispute Resolution Section of the State Bar of Texas (hereinafter “ADR Section”) is perhaps the most inclusive section of the bar, and it also welcomes mediators from all professional backgrounds and practice areas.xxxv  The ADR Section issues an excellent quarterly newsletter and provides multiple continuing-education opportunities to its members.  At $25.00/year, the ADR Section’s membership dues are a bargain.

At a national level, two organizations can be of use to networking mediators.  The Association for Conflict Resolution (hereinafter “ACR”), which has chapters in Houston and Dallas/Ft. Worth, serves more than 6,000 mediators and other dispute-resolution professionals.xxxvi  ACR is known for its excellent national and section conferencesxxxvii and its academic and professional publications.xxxviii  The Section of Dispute Resolution of the American Bar Association (hereinafter “DR Section”), like the ADR Section in Texas, is open to dispute-resolution professionals from all professional backgrounds and practice areas.  The DR Section sponsors an outstanding continuing-education program each year in a major U. S. city, and it publishes important books, an excellent magazine, and a newsletter.xxxix  Unlike the ADR Section in Texas, the DR Section requires dispute-resolution professionals to join the ABA before they can join the DR Section, which makes membership in the DR Section somewhat expensive.

Two online listservs can be important sources of information about job openings and recent developments in mediation.  Cornell University’s Center for Information Technology and Dispute Resolution sponsors the first listserv,xl and the DR Section sponsors the second.  Mediators can subscribe to both listservs at no cost.xli

Finally, paralegals should not forget to network with attorneys, especially the attorneys who already know and respect them.  Attorneys do not always refer mediations to other attorneys, particularly when the conference model may be appropriate for their cases.  If attorneys know of paralegals who are looking for mediation work and whose professionalism they respect, the attorneys may become regular sources of business for the paralegals.

VI. Taking the Initial Steps.

            The path to becoming a successful mediator can be an uncertain one, but paralegals who secure appropriate mediation training, acquire solid mediation experience, become credentialed, and establish networks of helpful colleagues are taking the appropriate initial steps on the path to their new profession.  With determination, perseverance, and some luck, professional success is a logical destination. 

Walter A. Wright is an associate professor in the Legal Studies Program of the Department of Political Science at Texas State University in San Marcos, Texas.  He teaches courses in law and alternative dispute resolution, and his primary research interest is mediation.  He is a published author in the United States, several Latin American countries, and China.  An attorney, mediator, and arbitrator, he received B.A. and J.D. degrees from the University of Houston and an LL.M. in International Legal Studies from New York University.

ENDNOTES

i   Paralegals’ traditional roles include locating and interviewing mediators for cases pending in court, preparing notebooks for attorneys to use during mediations, and explaining mediation logistics to clients.  Susan Patterson & Grant Seabolt, Essentials of Alternative Dispute Resolution 70-73, 198-200, 214 (2001) [hereinafter Patterson & Seabolt].

ii   See, e.g., Cris M. Currie, Should a Mediator also be an Attorney?, at http://www.mediate.com/articles/currie.cfm (August 2000); Alternative Dispute Resolution (ADR), at http://www.rnoon.com/lawlaymen/adminlaw/anatomy/lawsuit5.html (last visited Jan. 7, 2005).

iii   The contexts include large corporations, government agencies, schools, hospitals, and community-based organizations.  Patterson & Seabolt, supra note 1, at 201-02.

iv   See, e.g., Rachel Campbell et al., Collaborative Law:  How paralegals help put the pieces together in a new family law model, Legal Assistant Today, Nov./Dec. 2004, at 72-75, available at http://www.legalassistanttoday.com/issue_archive/feature2_nd04.htm. 

v   Tex. Civ. Prac. & Rem. Code Ann. § 154.052 (Vernon 1997).  See the discussion of training in Section II of this article, infra. 

vi   Id. §§ 154.001-154.073 (Vernon 1997 & Supp. 2004-05).

vii   Id. § 154.052(a) (Vernon 1997).

viii   Id. § 154.052(b).

ix   In “appropriate circumstances,” a court may waive the forty-hour and twenty-four-hour training requirements if the court “bases its appointment on legal or other professional training or experience

in particular dispute resolution processes.”  Id. § 154.052(c).

x   Texas Mediation Trainers Roundtable, Standards for 40 Hour Basic Mediation Training, at http://www.tmtr.org/StandardsFolder/40hr-training-outline.htm (November 3, 2003).

xi   Texas Mediation Trainers Roundtable, Standards for 30 Hour Family Mediation Training, at http://www.tmtr.org/StandardsFolder/30hrDivorceTrng-NEW.htm (September 11, 2000).

xii   Texas Mediation Trainers Roundtable, Standards for Continuing Education Ethics Training for Mediators, at  http://www.tmtr.org/StandardsFolder/EthicsStandards-1.htm (August 25, 2003).

xiii   The standards for basic mediation courses provide that “[t]rainers will indicate in training materials and certificate of completion that their program satisfies the Texas Mediation Trainers Roundtable’s standards for the 40-hour Basic Mediation course.”  Texas Mediation Trainers Roundtable, Standards for 40 Hour Basic Mediation Training, at http://www.tmtr.org/StandardsFolder/40hr-training-outline.htm (November 3, 2003).

xiv   A caucus is a private meeting between the mediator and one party and/or the party’s representatives.

xv   Texas State University-San Marcos, Legal Studies Program, at http://www.polisci.txstate.edu/legal_studies/legal_studies.html (last visited Jan. 7, 2005).  The author of this article is an Associate Professor in the Legal Studies Program at Texas State University.

xvi   E.g., St. Edward’s University, Conflict Resolution Concentration, at http://www.stedwards.edu/gsm/mahs/conflictresolution.htm (last visited Jan. 7, 2005); Texas Woman’s University, Mediation Training:  Certificate in Conflict Resolution, at http://www.twu.edu/o-ll/mediation.htm (last visited Jan. 7, 2005); University of Houston Law Center, A. A. White Dispute Resolution Center:  Fostering Public Awareness & Understanding of Conflict Resolution, at http://www.law.uh.edu/blakely/aawhite (last visited Jan. 7, 2005); University of Texas, Center for Public Policy Dispute Resolution, Training, at http://www.utexas.edu/law/academics/centers/cppdr/training (last visited Jan. 7, 2005).

xvii   E.g., Corder/Thompson & Associates, Training, at http://www.corderthompson.com/index_files/Page735.htm (last visited Jan. 7, 2005); Worklife Institute, Continuing Education Seminars, at http://www.worklifeinstitute.com/seminar.html (last visited Jan. 7, 2005).

xviii   Center for Public Policy Dispute Resolution, Texas Dispute Resolution Centers, at http://www.utexas.edu/law/academics/centers/cppdr/resources/adr_drcs.php (last visited Jan. 7, 2005).

xix   Texas Association of Mediators, The Complete ADR Calendar, at http://www.txmediator.org/calendar/calendar.htm (last visited Jan. 7, 2005).  For further discussion of the Texas Association of Mediators, see Section V of this article. 

xx   See Center for Public Policy Dispute Resolution, supra note 18.

xxi   For a listing of Texas DRCs, see Center for Public Policy Dispute Resolution, supra note 18.  Some DRCs, before accepting new volunteers, require or strongly recommend that volunteers take the training offered or sponsored by those DRCs; other DRCs accept any mediation training that meets TMTR’s minimum requirements.  Mediators who volunteer their time at Texas DRCs are entitled to qualified immunity under the ADR Act.  Tex. Civ. Prac. & Rem. Code Ann. § 154.055 (Vernon 1997).

xxii   The Houston Better Business Bureau administers approximately 500 mediations each year, all mediated by volunteers.  Telephone interview with Kim Lawrence, Alternative Dispute Resolution Coordinator, The Better Business Bureau of Metropolitan Houston, Inc. (Jan. 6, 2005) [hereinafter “Lawrence Interview”].  For further information about the Houston mediation program, visit http://www.bbbhou.org and click on the “Mediation and Arbitration” link. 

xxiii   All Better Business Bureaus in Texas have Alternative Dispute Resolution programs.  Some programs offer arbitration and mediation; others offer arbitration exclusively.  Lawrence Interview, supra note 22.  For assistance in locating the Alternative Dispute Resolution coordinators of their local Better Business Bureaus, readers may contact Kim Lawrence at klawrence@bbbhou.org.

xxiv   Square Trade, Becoming a Square Trade Mediator or Arbitrator, at http://www.squaretrade.com/cnt/jsp/med/more.jsp#Contracting (last visited Jan. 7, 2005).  

xxv   Id.

xxvi   National Association for Community Mediation, Jobs in Community Mediation, at http://www.nafcm.org/pg29.cfm (last visited Jan. 7, 2005).  

xxvii   Fresno Pacific University Center for Peacemaking and Conflict Studies, Mediation, Peacebuilding, Restorative Justice, Related Job Openings, at http://www.fresno.edu/pacs/rjjobs.php (last visited Jan. 7, 2005). 

xxviii   Mediate.com, Meeting Hall:  Employment Opportunities, at http://www.mediate.com/meetinghall/pg5.cfm (last visited Jan. 7, 2005).

xxix   Straus Institute for Dispute Resolution, Dispute Resolution Jobs, at https://lawmail.pepperdine.edu/asp/adrjobs/disputejoblist.asp (last visited Jan. 7, 2005).

xxx   Texas Mediator Credentialing Association, Brief History of the TMCA, at http://www.txmca.org/history.htm (last visited Jan. 7, 2005).

xxxi   Mediators in each credentialed-mediator category must meet initial training and experience requirements, which vary by category, pay initial application fees, which also vary by category, and agree to adhere to TMCA’s Standards of Practice and Code of Ethics.  After meeting the initial requirements, mediators in each credentialed-mediator category must comply with annual experience and continuing-education requirements, which vary by category, and pay annual application fees, which also vary by category.    Texas Mediator Credentialing Association, Criteria for Credentials, at http://www.txmca.org/criteria.htm (last visited Jan. 7, 2005).

xxxii   Candidates for credentialed mediator must complete a forty-hour basic mediation course, pay an initial application fee of $50.00, and agree to adhere to TMCA’s Standards of Practice and Code of Ethics.  After meeting the initial requirements, candidates must take ten hours of continuing education in mediation each year and pay an annual application fee of $50.00, but they are not required to meet an annual experience requirement.  Id.

xxxiii   Texas Mediator Credentialing Association, Standards of Practice and Code of Ethics, at http://www.txmca.org/ethics.htm (last visited Jan. 7, 2005).

xxxiv   Texas Association of Mediators, Texas Association of Mediators Informational Brochure (2005).  TAM’s web page is located at http://www.txmediator.org.  

xxxv   The ADR Section’s membership includes other types of ADR professionals, such as arbitrators.  Its Web page is located at http://www.texasadr.org/index.cfm. 

xxxvi   Association for Conflict Resolution, Frequently Asked Questions About ACR, at http://www.acrnet.org/about/ACR-FAQ.htm (last visited Jan. 7, 2005).

xxxvii   Association for Conflict Resolution, ACR Conference Center, at http://www.acrnet.org/conferences/index.htm (last visited Jan. 7, 2005).

xxxviii   Association for Conflict Resolution, ACR Publications, at http://www.acrnet.org/publications/index.htm (last visited Jan. 7, 2005).

xxxix   American Bar Association Dispute Resolution Section, Resources, at http://www.abanet.org/dispute/home.html (last visited Jan. 7, 2005).

xl   To subscribe to this listserv, send a message to listserv@listserv.law.cornell.edu.

xli   To subscribe to this listserv, visit http://www.abanet.org/dispute/discuss.html.  

Texas Paralegal Journal © Copyright 2005 by the Paralegal Division, State Bar of Texas.

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