§ 154.053.Standards and Duties of Impartial Third Parties

The duties section, and it is where the confidentiality that makes mediation work begins.

The neutral must encourage and assist the parties in reaching a settlement — but may not compel or coerce them into one.

That pairing defines the job. A mediator can press, test and question, and cannot make anyone sign.

Confidences between the parties are protected. Unless the disclosing party expressly authorizes it, the neutral may not tell one party what the other said in confidence.

That rule is what allows caucusing. A party can tell a mediator its true bottom line knowing it will not cross the hall.

The neutral must maintain confidentiality at all times with respect to communications relating to the subject matter of the dispute.

Even the appointing court is shut out. Unless the parties agree otherwise, all matters — including the conduct and demeanor of the parties and their counsel — are confidential and may never be disclosed to anyone, the court included.

A judge therefore learns whether the case settled, and nothing else. No report on who was reasonable, which is what keeps a party from performing for the court instead of negotiating.

Abuse reporting duties survive. Every participant, the neutral included, remains subject to the child abuse reporting requirements of the Family Code and the elder and disabled adult provisions of the Human Resources Code.