Like any new service or product, people started to alter the process of mediation in the adversarial system to meet their objectives. Litigators needed to find out quickly if appropriate resources (money) were available for their case. In order to learn if the process of mediation would be fruitful, litigators encouraged the mediators to bypass the basic essence of what drew the idealists to the field in the first place, self-determination and empowerment through communication.

A major shift took place when lawyers grafted the mediation process onto adversarial litigation, where the focal point of the dispute was highly competitive zero sum games. Courts throughout the U.S., Canada and the U.K. encouraged and even mandated the use of mediation to help streamline caseloads. The process became wildly successful and has been utilized in the same fashion as other improvements to the civil justice system such as depositions, interrogatories and so on.

To appreciate any new movement it is helpful to understand the motivation of the early idealists who planted the first seeds. Many were disillusioned lawyers, often referring to themselves as “recovering attorneys.” Others were devout supporters of the civil justice system (judges, professors, trial lawyers) dedicated to its ongoing improvement.

In Granite Re Inc. v. Jay Mills Contracting Inc., No. 02-14-00357-CV (Tex. App. – Fort Worth, March 26, 2015), the City of Granbury, Texas hired a contractor, Jay Mills Contracting (“JMC”), to design and install a boardwalk and several docks. After that, JMC contracted with another company, North American Marine Industries (“NAMI”), to complete the project.