Walk out on mediator at your peril: Appeal dismissed for failure to complete mediation session

Waco Court of Appeals dismisses appeal because Appellant terminated the mediation early by walking out. Preference for having the court decide the issues in dispute did not pass muster as a valid excuse.  

In the Estate of James H. Rice,
No. 10-10-00021-CV (Tex.App.- Waco, Aug. 10, 2011)


MEMORANDUM OPINION


In an order dated April 20, 2011, the Court found that this appeal was appropriate for mediation and ordered the parties to mediate this case. The Court’s Order provided in part:

Named parties must be present during the entire mediation process, … .

Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. If Appellant James Rice, Jr. fails to attend the mediation, this appeal will be dismissed. See Tex. R. App. P. 42.3(b), (c). [Emphasis in original.]

The mediation was held at the McLennan County Dispute Resolution Center on June 15, 2011. The Court received a June 22, 2011 letter from the Executive Director of the McLennan County Dispute Resolution Center. That letter states that

the mediation session ended abruptly when Appellant, James H. Rice, Jr. unexpectedly left the premises and did not return, prior to the mediation being terminated, adjourned, or recessed by the DRC’s volunteer mediator. As a result, the parties were unable to reach any agreement and the mediator, in the absence of the Appellant, pronounced the mediation terminated with the parties at impasse.

The Court requested, and has received, statements from the parties’ counsel about “the circumstances of Appellant’s departure from the mediation and why this appeal should not be dismissed for failure to comply with the Court’s April 20 Order.” James has not justified his departure from the mediation. The only explanation, which the Court finds insufficient, for James’s departure is that he “felt it best to put this matter in the hands of the Court.” Noah’s counsel’s statement verifies the Executive Director’s description of the events. James’s departure violated both the letter and spirit of the Court’s order, which explicitly required him “to attend the mediation” and to “be present during the entire mediation process.” Accordingly, this appeal is dismissed. Tex. R. App. P. 42.3(c).

REX D. DAVIS

Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

Appeal dismissed

Opinion delivered and filed August 10, 2011


TAGS: dismissal for failure to comply with appellate mediation order, failure or refusal to mediate

Mediation Ordered on Appeal -- But not quite consummated

Houston appellate panel disses appeal for failure to comply with mediation order. Jones v. Union Pacific RR Co. (Tex.App. - Houston [14th Dist.] Feb. 11, 2010)(per curiam dismissal) (appeal dismissed for noncompliance with terms of mediation order) MEMORANDUM OPINION This is an appeal from a judgment signed March 27, 2009. On July 9, 2009, this court ordered the parties to mediation. The order states, in pertinent part, “If mediation fully resolves the issues in the case, the court ORDERS the parties to file a joint dispositive motion within 10 days of the conclusion of the mediation. If the parties need more time to effectuate the terms of the settlement agreement, they shall, within 10 days of the conclusion of the mediation, file a joint or agreed motion for an extension of time to file their dispositive motion.” On September 29, 2009, the court was advised the parties did not settle at mediation, but that a tentative agreement was reached and the parties hoped to complete the settlement within thirty days. More than thirty days passed, and no notice that the settlement had been completed was filed. On December 3, 2009, the court ordered the parties to file a response within fifteen days informing the court of the status of the settlement of this case. No response was filed. On January 6, 2010, notification was transmitted to all parties of the court’s intention to dismiss the appeal for failing to comply with this court’s December 3, 2009, order, unless a response was filed within fifteen days demonstrating good cause to continue the appeal. See Tex. R. App. P. 42.3(c). No response was filed. Accordingly, the appeal is ordered dismissed. PER CURIAM DISMISSED: Per Curiam Panel members: Chief Justice Hedges, Justice Anderson and Justice Christopher 14-09-00541-CV Donald R. Jones, Sr. v. Union Pacific Railroad Company [pdf version] Appeal from 164th District Court of Harris County Trial Court Judge: Alexandra Smoots-Hogan