I have to admit that when there’s a new statutory mandate for courts to adopt a procedure that expedites resolution at low cost, I immediately think of it as a call for new ADR programs. I’m of course a bit biased, but I see ADR as a great way for courts to move cases more quickly and inexpensively through the judicial system. The Texas Supreme Court, though, saw it very differently and limited, rather than expanded, the use of ADR.
Texas HB 274, which enacts tort reform, calls for “rules to promote the prompt, efficient, and cost-effective resolution of civil actions” valued below $100,000. To fulfill this mandate, the Supreme Court designed a modified trial process with a 90-day maximum from discovery period to trial date, as well as limitations on discovery and the amount of time each side has to present its case. Interestingly, the rule also prohibits judges from referring cases to ADR without the consent of both parties.
So what does this mean for the future of ADR in Texas? This would seem to be turning the Texas courts away from ADR. In some ways, I think this might be true. It sends a message to lawyers and litigants that the courts aren’t supportive of ADR processes, which could lead to the decline in their use. However, for parties who do want to participate in ADR, that option is still available – so long as both parties agree or there’s an existing contract between them that calls for an ADR process. It will be interesting to see what impact the new rules have on the use of mediation in the state – and whether other states follow the Texas example.
For more information about the adoption of these rules, see a status report by Mike Schless.