in the Interest of E.R., a Child ( 2018 )

Order filed March 6, 2018
In The
Fourteenth Court of Appeals
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NO. 14-18-00154-CV
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In the Interest of E.R., a Child
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 87661-F
ORDER
We have determined that this case is appropriate for referral to mediation, an
alternative dispute resolution process. See Tex. Civ. Prac. & Rem. Code §§
154.021—.073. Mediation is a forum in which an impartial person, the mediator,
facilitates communication between parties to promote reconciliation or settlement.
Id.§ 154.023(a). Any communication relating to the subject matter of the appeal
made by a participant in the mediation proceeding is confidential. See Tex. Civ. Prac.
& Rem. Code § 154.053. After mediation, the parties shall advise the court whether
the case settled, or whether any further negotiation efforts are planned.
Therefore, the court ORDERS as follows:
1. The underlying dispute is referred to mediation.
2. Any party may file a written objection to this order with the clerk of this
court within 10 days of the date of this order. See Tex. Civ. Prac. & Rem.
Code § 154.022. If this court finds that there is a reasonable basis for the
objection, the objection shall be sustained. See id.
3. Mediation shall be held within 30 days of the date of this order. All parties
or their representatives with full settlement authority shall attend the
mediation process with their counsel of record. The parties shall advise the
court in writing within two days of conclusion of the mediation whether
the case settled.
4. If mediation fully resolves the issues in the case, the parties shall file a
motion to dismiss the appeal, other dispositive motion, within five days of
the conclusion of the mediation.
5. This case shall remain open and active. All deadlines remain in place.
PER CURIAM
2
RULES FOR MEDIATION
i. Definition of Mediation. Mediation is a process under which an impartial person, the
mediator, facilitates communication between the parties to promote reconciliation,
settlement or understanding among them. The mediator may suggest ways of resolving the
disputes, but may not impose his own judgment on the issues for that of the parties.
ii. Agreement of Parties. Whenever the parties have agreed to mediation they shall be
deemed to have made these rules, as amended and in effect as of the date of the submission
of the dispute, a part of their agreement to mediate.
iii. Consent to Mediator. The parties consent to the appointment of the individual named as
mediator in their case. The Mediator shall act as an advocate for resolution and shall use
his best efforts to assist the parties in reaching a mutually acceptable settlement.
iv. Conditions Precedent to Serving As Mediator. The mediator shall not serve as a
mediator in any dispute in which he has any financial or personal interest in the result of
the mediation. Prior to accepting an appointment, the Mediator shall disclose any
circumstances likely to create a presumption of bias or prevent a prompt meeting with the
parties. In the event that the parties disagree as to whether the Mediator shall serve, the
Mediator shall not serve.
v. Authority of the Mediator. The Mediator does not have the authority to decide any issue
for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the
parties. The Mediator is authorized to conduct joint and separate meetings with the parties
and to offer suggestions to assist the parties achieve settlement. If necessary, the Mediator
may also obtain expert advice concerning technical aspects of the dispute, provided that
the parties agree and assume the expenses of obtaining such advice. Arrangements for
obtaining such advice shall be made by the Mediator or the parties, as the Mediator shall
determine.
vi. Commitment to Participate in Good Faith. While no one is asked to commit to settle
their case in advance of mediation, all parties commit to participate in the proceedings in
good faith with the intention to settle, if at all possible.
vii. Parties Responsible for Negotiating Their Own Settlement. The parties understand that
the Mediator will not and cannot impose a settlement in their case and agree that they are
responsible for negotiating a settlement acceptable to them. The Mediator, as an advocate
for settlement, will use every effort to facilitate the negotiations of the parties. The
Mediator does not warrant or represent that settlement will result from the mediation
process.
viii. Authority of Representatives. PARTY REPRESENTATIVES MUST HAVE
AUTHORITY TO SETTLE AND ALL PERSONS NECESSARY TO THE
DECISION TO SETTLE SHALL BE PRESENT. The names and addresses of such
persons shall be communicated in writing to all parties and to the Mediator prior to the
mediation.
ix. Time and Place of Mediation. The Mediator shall fix the time of each mediation session.
The mediation shall be held at the office of the Mediator, or at any other convenient
location agreeable to the Mediator and the parties, as the Mediator shall determine.
x. Identification of Matters in Dispute. Prior to the first scheduled mediation session, each
party shall provide the Mediator with confidential information in the form requested by the
Mediator setting forth its position with regard to the issues that need to be resolved.
At or before the first session, the parties will be expected to produce all information
reasonably required for the Mediator to understand the issues presented. The Mediator may
require any party to supplement such information.
xi. Privacy. Mediation sessions are private. The parties and their representatives may attend
mediation sessions. Other persons may attend only with the permission of the parties and
with the consent of the Mediator.
xii. Confidentiality. Confidential information disclosed to a Mediator by the parties or by
witnesses in the course of the mediation shall not be divulged by the Mediator. All records,
reports or other documents received by a mediator while serving in that capacity shall be
confidential. The Mediator shall not be compelled to divulge such records or to testify in
regard to the mediation in any adversary proceeding or judicial forum. Any party that
violates this agreement shall pay all fees and expenses of the Mediator and other parties,
including reasonable attorney’s fees incurred in opposing the efforts to compel testimony
or records from the Mediator.
The parties shall maintain the confidentiality of the mediation and shall not relay on, or
introduce as evidence in any arbitral, judicial, or other proceeding: a) views expressed or
suggestions made by another party with respect to a possible settlement of the dispute; b)
admissions made by another party in the course of the mediation proceedings; c) proposals
made or views expressed by the Mediator; or d) the fact that another party had or had not
indicated willingness to accept a proposal for settlement made by the Mediator.
xiii. No Stenographic Record. There shall be no stenographic record made of the mediation
process.
xiv. No Service of Process at or near the Site of the Mediation Session. No subpoenas,
summons, complaints, citations, writs or other process may be served upon any person at
or near the site of any mediation session upon any person entering, attending or leaving the
session.
xv. Termination of Mediation. The mediation shall be terminated: a) by the execution of a
settlement agreement by the parties; b) by declaration of the Mediator to the effect that
further efforts at mediation are no longer worthwhile; or c) after the completion of one full
mediation session, by a written declaration of a party or parties to the effect that the
mediation proceedings are terminated.
xvi. Exclusion of Liability. The Mediator is not a necessary or proper party in judicial
proceedings relating to the mediation. Neither Mediator nor any law firm employing
Mediator shall be liable to any party for any act or omission in connection with any
mediation conducted under these rules.
xvii. Interpretation and Application of Rules. The Mediator shall interpret and apply these
rules.
xviii. Fees and Expenses. The Mediator’s daily fee shall be agreed upon prior to mediation and
shall be paid in advance of each mediation day. The expenses of witnesses for either side
shall be paid by the party producing such witnesses. All other expenses of the mediation,
including fees and expenses of the Mediator, and the expenses of any witness and the cost
of any proofs or expert advice produced at the direct request of the Mediator, shall be borne
equally by the parties unless they agree otherwise.
Fourteenth Court of Appeals
MEDIATOR’S REPORT
Date: ____________________________
Christopher A. Prine, Clerk
301 Fannin, Room 245
Houston, TX 77002
Re: Appellate number:
Case style:
In compliance with this court’s order dated ________________________________, I
conducted a mediation proceeding in this case on _____________________________.
The mediation [ did / did not ] result in a [ full / partial ] resolution of the matters in dispute.
To my knowledge, further negotiation efforts [ are / are not ] planned.
The parties and mediator have agreed that the mediator shall be paid as follows:
$_______________________ paid by ______________________
$_______________________ paid by ______________________
$_______________________ paid by ______________________
$_______________________ paid by ______________________
Mediator:
Address:
Telephone
E-Mail Address
Return immediately after mediation to:
14th Court of Appeals; 301 Fannin, Room 245, Houston, Texas 77002
(713) 274-2800