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

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

We ordered the parties to mediation on May 23, 2018. Mediation was to take place

within 30 days from the date of the order. This was the second time the parties were

ordered to mediation by this Court. The second referral to mediation occurred after the

Court issued an opinion. The Court had affirmed in part and reversed in part the trial

court’s judgment. One party has already filed a petition for review, and the other party

has filed a motion for rehearing. In response to this second referral to mediation, the parties filed a timely joint

objection to mediation contending (a) the parties did not believe a second mediation

would be fruitful; (b) the parties would incur substantial cost because the appointed

mediator is in Houston while the parties and their attorneys are in the Dallas area; and

(c) a second mediation would result in unnecessary delay. We stayed the mediation order

pending further order of the Court.

We now lift the stay, sustain the parties’ objection in part as to (b) only, overrule

the objection as to (a) and (c), withdraw the order of referral to mediation issued on May

23, 2018, and substitute the following order in its place.

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 Court assigns Linda B. Thomas as the mediator. She can be contacted at the

Nichols v. McKinney Page 2 following address, telephone phone number, or email:

Linda B. Thomas c/o JAMS 8401 N. Central Expressway, Suite 610 Dallas, TX 75225 (214) 891-4520 or (214) 744-5267 blangs@jamsadr.com (case manager)

Mediation must occur within thirty days after the date of this Order.

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

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.

Nichols v. McKinney Page 3 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.

Before Chief Justice Gray, Justice Davis, and Judge Towslee Corbett1 Objection sustained in part and overruled in in part Appeal referred to mediation Order issued and filed July 18, 2018

1 The Honorable Reva Towslee Corbett, Judge of the 335th District Court of Bastrop, Burleson, Lee, and Washington Counties, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (West 2013).

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