James Nichols, Melissa Nichols, Martha Moore, and Edward Nichols, Individually and as Heirs of the Estate of Melody Nichols v. Steve McKinney ( 2018 )

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.
PER CURIAM
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).
Nichols v. McKinney Page 4