In Chambers, Winter 2009

By Sherry Wetsch

In the Spring of 1998 edition of In Chambers, Judge Jerry Sandel published the results of the use of mediation of criminal disputes in the 278th Judicial District. At that time, the use of mediation for the felony docket was successful, but new. In the Spring of 2006 edition of In Chambers, Judge William McAdams wrote a follow up discussion to the Spring of 1998 article, as the use of mediation for felonies had expanded from the 278th Judicial District, to the 12th Judicial District.

Attorney Sherry Wetsch co-authored both publications, as she has served as the mediator or conference judge in both Judicial Districts. The gist of both pieces was that the use of settlement conferences for felonies has been effective. During that period of time, the cases assigned to mediation were currently on the courts dockets. This article is an update to the two prior pieces, and is written with the input of the Walker County District Attorneys Office, which has been instrumental in ensuring the success of the felony mediation program.

In the last two years, the files that have been sent to mediation were sometimes referred upon volition of the Court. However, some of the files that are sent to mediation are referred at the request of the District Attorneys Office, and/or the Defense Attorneys. Most of the files that are sent to mediation are currently on the Court’s docket. However, mediations have been conducted on pre-indictment matters. Post sentencing files have not yet been ordered to a settlement conference. That said, if a Defendant is on probation from another case, any related issues will be addressed during the settlement conference. The Court Coordinators serve as the mediation docket administrators. The costs of the mediation are paid by the Court.

The Court continues to refer cases to the Alternative Dispute Resolution process pursuant to Chapter 154, of the Texas Civil Practice and Remedies Code. The issue of confidentiality of the settlement conference is addressed in the Order of Referral. The Order expressly notifies the parties that unless they agree in writing to waive their right to confidentiality, all matters, including the conduct and the demeanor of the parties and their counsel during the settlement process, will remain confidential and will not be disclosed to anyone including the Court. The Order instructs the conference judge to advise the Court when the process was conducted, whether the parties and their counsel appeared as ordered, and whether a settlement was reached. Addressing the issue of confidentiality in the Order of Referral is critical to the success of the settlement conference.

The settlement conferences continue to be conducted in an available court room. The parties use the jury room for breakout sessions. The use of the court house as the location has proven to be the most convenient for the parties, attorneys, and witnesses. The use of the court room provides for a neutral location that lends authority to the proceeding. It also allows the mediator and the parties to have easier access to any related court files that may be needed. Additionally, sometimes the parties need to consult with the probation department, law enforcement officials, or need access to court personnel. On occasion, the Defendant is in custody. As a result, the court house has proven to be the most efficient location to conduct the settlement conference.

The types of cases that are being referred to mediation include but are not limited to the following: Injury to a Child, Aggravated Assault, Sexual Assault, Intoxicated Assault, Aggravated Sexual Assault of Child, and Theft.

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Defendants are always represented by counsel during the settlement conferences. If a defense attorney has not been retained, the defendants are provided with a court appointed attorney. Victims and their family members rarely appear with counsel of their own. There are occasions when a pending civil matter, such as a personal injury claim or divorce, is pending. Participants are always given opportunities to consult with their personal attorney during the settlement conference if they desire to do so. Occasionally a case needs more than one mediation session, as the parties sometimes need to conduct further investigation into issues, such as the amount of restitution.

It is not uncommon for the victim, and members of the victim’s immediate family, to attend the mediation. Members of the Defendant’s immediate family also periodically attend the mediation. Witnesses have also attended and participated in the settlement conferences. This community approach has been one of the benefits of conducting settlement conferences for criminal disputes. Allowing the victim and defendant to attend the conference and be heard, helps ensure a successful settlement of outstanding issues. It also helps both the defendant and victim to understand the reality of each situation and appropriate options. During each mediation, a reality check as well as risk analysis, is conducted with the parties. One of the advantages of mediating a criminal dispute is that the parties can be creative when generating options. This helps the victims feel more comfortable about the situation. It also allows the defendant to be more confident and successful with post mediation responsibilities that they incur. The parties and participants have an opportunity to take some sort of ownership of the outcome.

One of the reasons that these settlement conferences are successful is that the conferences provide all interested parties, with an opportunity to have a frank discussion. Given the nature of the circumstances, this discussion is essential to resolving conflict which won’t be resolved through a traditional plea bargain agreement. This communication allows the parties to clear up misunderstandings and allows the victims and defendants to move forward.

There have been no identifiable reasons not to consider the use of mediation for felonies. That said, not every file is appropriate for a settlement conference. If the victim is fearful of the Defendant, that file is not appropriate for a traditional settlement conference. Additionally, the attorneys and the conference judge need to use discretion as to who is to be allowed in the room at any given time during a settlement conference. Each case is different. Therefore, there are no hard rules as to what is the most workable.

Settlement agreements cover issues such as community service, counseling, employment, education, restitution, court costs, and restitution. Settlement agreements are signed by the Defendant, defense attorney, and Assistant District Attorney. With the consent of the parties, the original settlement agreement is usually filed with the court by the conference judge.

The use of settlement conferences for felonies continues to be a successful method of addressing criminal disputes in Walker County. The 258th Judicial District in San Jacinto County, as also successfully utilized the use of a settlement conference to address a criminal dispute. Ms. Wetsch has served as the ADR provider there. The logistics and style of the settlement conference were consistent in San Jacinto County with those utilized in Walker County.

Sherry R. Wetsch is licensed to practice law in Texas, North Dakota and Missouri. She started her legal career as an attorney for the United States Department of the Army and achieved the rank of Lieutenant Colonelin the United States Army Reserve. Ms. Wetsch also served as an Assistant Prosecuting Attorney (APA) in the State of Missouri. As an APA, her responsibilities included complex felony cases. Since moving to private practice she has served as a third party neutral on a wide variety of cases, including labor, employment, home remodeling, contract, consumer, personal injury, family, criminal, defamation, securities, lemon law, home warranty, special education, and debtor/creditor.

Ms. Wetsch has served as a mediator for the Texas Department of Transportation (TXDOT), the New York Stock Exchange (NYSE), Better Business Bureau (BBB), United State Department of the Army, United States Postal Service (REDRESS), Texas Education Agency (TEA), NASD, and the Fort Bend Dispute Resolution Center. She has served as both an arbitrator and as an Administrative Law Judge through the State Office of Administrative Hearings (SOAH).