Alternatives to Public Trial

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Times are changing and the legal profession is adapting. Backlogs, delays, continuances, time limits, rising costs, and judicial turnover have made traditional court proceedings increasingly frustrating, expensive, and inefficient. In complex or high value estate cases and those involving bifurcated trials such as those including informal marriages, prenuptual and postnuptual agreements, declaratory judgments, marital torts, attorneys fees, and civil damages, the delays and inefficiencies are multiplied.

Disputes involving marriages, families, and children expose private and deeply personal grievances and confidential financial matters to public scrutiny, causing embarrassment or even humiliation for spouses and children. Many clients wish to avoid airing their “dirty laundry” in open court where the press or social media can turn it into a news sensation,  but are prohibited from doing so by constitutional transparency  and "open courts" requirements.

Fortunately, there are better alternatives.

The Texas Civil Practice and Remedies Code (CPRC) offers several “alternative methods of dispute resolution” designed to resolve disputes outside of the courtroom. These methods fall into two categories: trial equivalents (special judging and arbitration), and private settlement processes (mini-trial, and moderated settlement conferences, and mediation). 

The best and most effective means of avoiding the problems caused by public trials is referral to a “special judge,” which offers a streamlined and efficient alternative to the public courtroom. Referral to a special judge (common called a “private judge”) eliminates the drawbacks of traditional litigation while preserving its benefits and reducing costs. The process (laid out in Tex. Civ. Prac. & Rem. Code § 151) minimizes unnecessary preparatory hours, eliminates scheduling uncertainty, and leads to faster resolution with minimal disruption to clients’ lives and schedules. (A form motion and order is found [here].)

Trying your case to a private judge is the only way to:

· Hand-pick an experienced, trusted judge.

· Avoid courthouse waiting, delays, resets, and overcrowding, 

· Circumvent repetitive mediation mandates.

· Escape restrictive time limits.

· Schedule hearings at your convenience, not when a court can fit you in.

· Prepare the case only once, and never try the same hearing twice (first to an associate judge and then again de novo to the presiding judge)

· Complete trials efficiently and without interruption, where a day of trial means a full day.

· Be guaranteed by statute a written verdict within 60 days of trial.

· Retain full appellate rights (unlike arbitration).

And perhaps most importantly, private judging ensures unmatched privacy, shielding personal and closely-held financial matters from public scrutiny.  Private trials are closed and off limits to the public and press.

The process is simple. Using the forms provided below, parties submit an agreed request to the trial court to refer specific hearings, issues, final trial, post-trial motions, or the entire case to a private judge of their choice. The referral order can be crafted to meet the unique needs of each case:

· Temporary orders and injunctive issues decided quickly and without restrictive time limits.

· Prompt resolution of discovery disputes.

· Bifurcated trials decided without delay.

· Trials on your schedule, rather than subject to the trial court’s availability.

· Remote proceedings permitted by agreement or when appropriate.

Click HERE to download a template Motion and Order for Referral to a Private Judge.

Voluntary arbitration is another process that removes a dispute from the public courtroom to a private forum where a neutral third party resolves the case. By signing a written arbitration agreement, parties ensure their case is heard by a trusted arbitrator with expertise in family law. Voluntary arbitration allows parties to tailor the process to their needs, avoiding many of the traditional criticisms associated with arbitration. An agreement can call for binding or nonbinding arbitration. 

Similar to private judging, arbitration offers flexible scheduling, streamlined procedures, trial outside of the courthouse, and a binding resolution far sooner than traditional litigation. However, there are key distinctions between the two methods

•  A trial court may reject an agreement for private judging but is bound by and must enforce a written agreement for binding arbitration. 
• Trials to a private judge proceed under all traditional rules of court. Arbitrations do not, and are only subject to rules specifically identified in the arbitration order or agreement.
• While verdicts issued by a private judge are binding on the trial court, arbitration awards regarding children are not if the trial court finds that the award is not in the children's best interest, or violates the TAA or FAA.
• Private judge decisions are entitled to full appellate rights, while arbitration awards enjoy severely limited appellate challenges.

When private judging is not an option, arbitration is the next best alternative to avoid the costs, delays, and unpredictability of traditional litigation. Click HERE to download a template sample Arbitration Agreement.

A Practical, Cost-Effective Path to Agreed Resolution

Mediation gives clients control over the outcome of their case while avoiding the risks of trial. An experienced and insightful neutral professional works with the parties in a confidential setting, helping them cut through conflict and identify realistic, creative, and focused solutions that work in the real world—not just cookie-cutter outcomes constrained by the limits of judicial authority.

Benefits of mediation include:

• Keep sensitive, personal, and financial matters confidential. 
• It is often the parties' last chance to exert control over the outcome, rather than allowing yourself to be subject to the whims of a court. 
• Save time and money, and minimize emotional stress by avoiding extended litigation. 
• Explore creative solutions that courts cannot order. 
• Build agreements that preserve relationships rather than further damaging them. 
• Resolve disputes on your schedule, not the court’s.
• Avoid the risk and cost of trials, retrials, post judgment motions, and prolonged appeals
   

The mediator's role is to guide the conversation, defuse tension, and help both sides see a path forward. The mediator provides expert perspective, empowers parties to shape their own outcomes, and proposes practical solutions, without imposing a legal decision like in court. The process belongs to the parties—not the judge. Unlike the other options described herein, whether the case is over at the end of the day is up to the parties, not the court or mediator.

 Click HERE to download the Texas Credentialed Mediator's Standards of Practice and Code of Ethics.

Resolution with Certainty

Mediation provides litigants the opportunity to tailor a unique resolution to their dispute while avoiding the risks of trial. But even a good-faith mediation can end in a near-miss—where tentative agreements on most issues are lost due to a few remaining unresolved matters. This prolongs the case, and when the matter eventually reaches trial, those partial agreements are not binding on the court. After months of litigation and preparation, and a full day of mediation, most litigants simply want the matter fairly and  finally resolved.

Blended Mediation/Arbitration (Med-Arb) is the only process that guarantees a definitive outcome. If during mediation the parties reach agreement on some, but not all, issues, the agreed terms are reduced to writing and executed as a binding Mediated Settlement Agreement. The mediator then transitions into the role of arbitrator and issues a binding arbitration award on the remaining issues—assuring complete and final resolution at the end of the process.

Benefits of Med-Arb include:

• Guarantees a final resolution at the end of the day.
• Outcomes are not limited by technicalities that constrain judicial discretion at trial.
• Preserves the parties' agreements, making them binding and enforceable.
• Eliminates wasted time and expense from “near-miss” mediations, extended delays, or unnecessary trials.
• Avoids re-litigation of uncontested issues and the uncertainty of a judge or jury if the case goes to trial.
• Streamlines the process and eliminates cost by combining the two phases into one consolidated process.
• Protects clients with the certainty of closure, without forfeiting the chance to resolve some issues on their own terms with creative solutions.
   

This unique process is only possible with a mediator/arbitrator who knows and follows the law, can calmly and expertly guide productive settlement discussions, and, when necessary, is trusted by the parties to render a fair and just decision.

Mediation works well in many cases but is less effective in complex or high-conflict disputes where costly and time-consuming judicial involvement is often required. In these situations, a little-known and even less-utilized alternative—the mini-trial—is particularly effective in encouraging settlement and saving money. Tex. Civ. Prac. & Rem. Code § 154.024.

Despite its name, a “mini-trial” is not a trial in a traditional sense. There is no record. There are no live witnesses (other than the parties), cross-examination, or evidentiary rulings. Instead, a mini-trial is a trial by proffer, where parties submit exhibits and then present evidence in a manner more akin to a detailed opening statement. At the conclusion of the presentation, a trusted neutral third party selected by agreement issues a confidential and nonbinding advisory opinion on the merits of the case, which serves as the foundation for realistic settlement negotiations.

Mini-trials are particularly valuable when entrenched positions or disputed legal issues hinder settlement discussions or stall mediation progress. Instead of declaring an impasse, parties simple suspend mediation, engage in a mini-trial, and return to mediation with the benefit of the advisory opinion. And because court approval is not required, there is no need for seek a court order.

For cases where traditional settlement methods have failed, or where protracted litigation looms, mini-trials provide a streamlined, cost-effective alternative. 

A moderated settlement conference is similar to a mini-trial (discussed above), with a few key differences. (Tex. Civ. Prac. & Rem. Code § 154.024.) 

• Unlike a mini-trial, participation in a moderated settlement conference does not requires agreement of the parties. Instead, courts can compel parties to participate in a moderated settlement conference over objection, as they can with mediation. 

• The court, not the parties, designates an impartial third party or panel to hear the presentations and issue a nonbinding advisory opinion on contested issues. (This is a key difference, as the litigants lose the power to select their own judge.)

• Either party may file an opposed Motion for Referral to a Moderated Settlement Conference, asking the court to compel the parties’ participation. 

This option is particularly useful when one party is entrenched in an unreasonable or unjustified position or fails to appreciate their potential exposure. The nonbinding opinion helps ground the discussion, facilitating more productive negotiations.

Judge Ferguson brings thirty years of trial experience from both sides of the bench to your trial preparation process!

He can help you prepare your case, through theme building, issue spotting, and witness preparation. In hundreds of trials over twelve years on the general jurisdiction district bench, Judge Ferguson has learned what motivates fact finders and tips the scales in tough cases. Judge Ferguson is particularly adept at identifying and constructive effective trial themes and spotting potential appellate risks. In addition, Judge Ferguson can assist by evaluating witnesses on mock-direct or cross-examination, exposing weaknesses and credibility challenges, to assist in preparing clients to take the stand.

Judge Ferguson will also preside over a mock bench trial, mock mini-trial, or summary jury trial, to provide a realistic and reasoned advisory ruling on complex contested issues.  These advisory decisions, while not dispositive or binding, are instructive on how a reasonable finder of fact may rule, and could alleviate unreasonable client expectations or break through settlement impediments. In twelve years, he never had a judgment or verdict reversed by the Court of Appeals.