James Nichols, Melissa Nichols, Martha Moore, and Edward Nichols, Individually and as Heirs of the Estate of Melody Nichols v. Steve McKinney

• Court: Court of Appeals of Texas
• Decided: May 31, 2017
• Docket: 10-16-00037-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-16-00037-CV

JAMES NICHOLS, MELISSA NICHOLS, MARTHA MOORE, AND EDWARD NICHOLS, INDIVIDUALLY AND AS HEIRS OF THE ESTATE OF MELODY NICHOLS, Appellants v.

STEVE MCKINNEY, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 89372

ORDER OF REFERRAL TO MEDIATION

The Legislature has provided for the resolution of disputes through alternative

dispute resolution (ADR) procedures. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.001-

154.073 (West 2011). The policy behind ADR is stated in the statute: “It is the policy of

this state to encourage the peaceable resolution of disputes . . . and the early settlement

of pending litigation through voluntary settlement procedures.” Id. § 154.002 (West 2011). Mediation is a form of ADR. Mediation is a mandatory but non-binding settlement

conference, conducted with the assistance of a mediator. Mediation is private,

confidential, and privileged.

We find that this appeal is appropriate for mediation. See id. § 154.021(a) (West

2011); 10TH TEX. APP. (WACO) LOC. R. 9.

The parties are ordered to confer and attempt to agree upon a mediator. Within

fourteen days after the date of this Order, Appellants are ordered to file a notice with the

Clerk of this Court which either identifies the agreed-upon mediator or states that the

parties are unable to agree upon a mediator. If the notice states that the parties are unable

to agree upon a mediator, this Court will assign a mediator.

Mediation must occur within thirty days after the date the above-referenced notice

agreeing to a mediator is filed or, if no mediator is agreed upon, within thirty days after

the date of the order assigning a mediator.

No less than seven calendar days before the first scheduled mediation session,

each party must provide the mediator and all other parties with an information sheet

setting forth the party’s positions about the issues that need to be resolved. At or before

the first session, all parties must produce all information necessary for the mediator to

understand the issues presented. The mediator may require any party to supplement the

information required by this Order.

Named parties must be present during the entire mediation process, and each

party that is not a natural person must be represented by an employee, officer, agent, or

Nichols v. McKinney Page 2 representative with authority to bind the party to settlement.

Immediately after mediation, the mediator must advise this Court, in writing, only

that the case did or did not settle and the amount of the mediator’s fee paid by each party.

The mediator’s fees will be taxed as costs. Unless the mediator agrees to mediate without

fee, the mediator must negotiate a reasonable fee with the parties, and the parties must

each pay one-half of the agreed-upon fee directly to the mediator.

Failure or refusal to attend the entire mediation as scheduled may result in the

imposition of sanctions, as permitted by law.

Any objection to this Order must be filed with this Court and served upon all

parties within ten days after the date of this Order, or it is waived.

We refer this appeal to mediation.

The appeal and all appellate deadlines are suspended as of the date of this Order.

The suspension of the appeal is automatically lifted when the mediator’s report to the

Court is received. If the matter is not resolved at mediation, any deadline that began to

run and had not expired by the date of this Order will begin anew as of the date the

mediator’s report to the Court is received. Any document filed by a party after the date

of this Order and prior to the filing of the mediator’s report will be deemed filed on the

same day, but after, the mediator’s report is received.

PER CURIAM

Nichols v. McKinney Page 3 Before Chief Justice Gray, And Justice Davis, (Justice Scoggins did not participate in deciding this order) Order issued and filed May 31, 2017

Nichols v. McKinney Page 4