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Can Mediation be Ordered During an Appeal?

Posted by John Millard | May 24, 2023 | 0 Comments

Can parties be ordered to mediate during an appeal? Absolutely!

In Texas, appellate courts have broad authority to order parties to engage in mediation even during an ongoing appeal. In this blog post, we'll explore the authority granted to Texas appellate courts to order mediation during an appeal, the procedures and rules involved, and the potential benefits to the parties and the Court.

Mediation During a Texas Appeal: Overview of Applicable Statutes

In Texas family law cases, the Texas Family Code governs mediation at the trial court level (§6.602 and §153.0071). At the appellate court level, Texas Civil Practice & Remedies Code sections 154.021, 154.022(a), and 154.023 outline the authority of Appellate Courts to refer cases to mediation. These provisions highlight the legislature's continued recognition of the value of mediation as a means of alternative dispute resolution, including during the appellate stage.

Case Summary: Garza v. Mathena

The Garza v. Mathena case from the 257th District Court of Harris County and the First Court of Appeals is a pertinent example of the appellate Court's authority to refer appeals to mediation. In this case, the Court recognized the potential for resolution through mediation and issued an order referring the appeal for mediation. The case highlights the Court's commitment to exploring alternative avenues for resolving disputes and promoting efficient and effective appellate proceedings. Importantly, this case is a good summary of the procedures and deadlines applicable to an order for mediation during an appeal.

Objecting to Mediation: Timeline and Procedures

While mediation is typically encouraged, parties can object to the court-ordered mediation within ten (10) days of receiving an order requiring it. The objection must be filed with the Clerk of the Appellate Court. By providing this opportunity to object, the Court ensures that parties retain some control over the dispute resolution process while still promoting mediation as a valuable tool for resolving appellate cases.

Selecting a Qualified Mediator: Parties' Responsibilities

Once mediation is ordered, the parties are responsible for selecting a qualified mediator. In their procedures, the Courts of Appeals note that “The Court does not recommend mediators.” It is therefore crucial that the parties choose a mediator with significant expertise in the specific area of law involved in the case, particularly when that area is family law. Mediators must have completed at least forty ADR training hours. For family law cases, mediators must have an additional twenty-four hours in childhood development, family law, and family dynamics. Collaborating with an experienced mediator who understands the nuances of family appellate cases and has a track record of successful resolutions can significantly enhance the mediation process's effectiveness.

Key Deadlines and Procedures

A. Filing “Parties Notification to Court of Mediator”

Within fifteen (15) days of receiving the appellate Court's mediation order, the parties are required to file a completed “Parties' Notification to Court of Mediator” form with the Clerk of the Appellate Court. This document ensures the Court is kept informed about the progress and status of the mediation process and provides the necessary information for the Court to send a Notification to Mediator form. This form ensures the mediator is aware of the responsibility to complete and file a Mediator's Report no later than two (2) days from the conclusion of the mediation.

B. Conducting the Mediation: Timeframe and Expectations

The parties have between 45 days (1st Court) and 60 days (14th Court) from the date of the order of referral to conduct the mediation. This timeframe emphasizes the Court's commitment to expeditious dispute resolution. However, the Court may extend or change this period at the request of a party, so long as the change does not delay administration by the Court. The appellate timetable may be suspended for sixty (60) days from the date the order of referral is entered, depending on the Court.

C. Reporting the Outcome: Settlement or Non-Settlement

Within two (2) days of the mediation's conclusion, the parties and the mediator must advise the Clerk of the Appellate Court in writing whether they were able to settle the underlying dispute. As part of our services, after each session, we send the required Mediator's Report to the Court to advise whether the case resolved. And, if the session results in a Mediated Settlement Agreement, we e-file the MSA with the Clerk (usually the same day) and provide all counsel with a file-stamped copy of the filing. This saves you time and ensures that the obligation to apprise the Court of the result of mediation is fulfilled. Lastly, upon settlement, the parties must file a dispositive motion within ten (10) days of the mediation's successful completion.

D. Reasonable Mediation Fee: Taxing as a Cost of the Appeal

In Texas, an agreed fee for the mediator's services is considered reasonable and is taxed as a cost of the appeal unless the parties agree to an alternative payment method. Of course, the parties have the flexibility to agree on alternative payment methods for mediation services. This may include splitting the cost equally, allocating it based on the parties' financial circumstances, or adopting any other mutually acceptable arrangement.

E. Refer to the Local Rules for More Information

To access comprehensive information regarding the Alternative Dispute Resolution (ADR) procedures in our local Appellate Courts, you should refer to the specific practice rules of the respective courts. The First Court of Appeal's practice rules concerning mediation during an appeal can be accessed HERE, while the Fourteenth Court of Appeal's practice rules can be found HERE. These resources provide valuable insights into the guidelines and specific processes for ADR within each Court. These procedures are mandatory reading if your family law case goes up on appeal!

The Benefits of Mediation in Appellate Cases

Mediation empowers parties to participate in the resolution of their disputes actively. By engaging in open dialogue and exploring various options, parties can often uncover creative solutions that meet their unique needs and interests. This collaborative approach promotes a sense of ownership over the outcome, increasing the likelihood of a settlement that both parties find satisfactory. In addition, traditional litigation in appellate cases can be very time-consuming and costly. Mediation offers a streamlined, efficient, cost-effective alternative, allowing parties to reach a resolution more swiftly.

As former family court judges, Armatys Millard bring extensive knowledge and experience to the mediation table. With a deep understanding of Texas family law and appellate procedures, we are well-equipped to guide parties through mediation. This unique insight allows us to facilitate productive discussions, identify common ground, and help parties reach mutually beneficial resolutions, ultimately saving time, money, and emotional energy.

Contact us to schedule your mediation and discover how we can assist with your appellate case.

About the Author

John Millard

John Millard recently served as Associate Judge of the 328th District Family Court, Fort Bend County. This experience gave John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. John provides mediation and arbitration services for family law cases pending in Fort Bend, Harris, and surrounding counties. You can count on John's extensive family law experience and judicial wisdom to help successfully resolve your case.


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