The purpose of mediation is to bring parties closer together and ideally to reach an amicable solution and settlement. To achieve this result, the mediation is a facilitated conversation. Like any conversation, it takes both parties to engage each other. For there to be a successful conversation, both parties need to speak as well as listen. When parties arrive without the ability to participate or with the conscious plan to not engage at all, and when they follow through on such a plan, that could be said to be mediation in bad faith— or no mediation at all.
Once the parties are at court-ordered mediation, the extent of willful non-participation in the process can have serious ramifications. In short, as a party, you leave a mediation midway or before commencing at your own risk. If court ordered, a party violates the intent of that order at his or her own peril by leaving or not participating. A party on appeal who abandons the mediation may risk dismissal. See, for example, In the Estate of James H. Rice No 10-10-00021-CV (Tex. App. – Waco, Aug 10, 2011. The Rice case is exemplary of the dangers of non-participation.
In Rice, there was a case on appeal that was referred to appellate mediation in which an order provided in part that certain named parties must be present during the entire mediation process. The order also stated that “failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. If Appellant James Rice Jr. fails to attend the mediation, this appeal will be dismissed. See Tex. R. App. P. 42.3(b), (c).”
The Rice mediation date was noticed and the parties and their counsel were notified. They showed up. However, what happened next is an impasse due to a party leaving. One may gently call what transpired the spontaneous non-presence of a party. The “…mediation session ended abruptly when Appellant, James H. Rice, Jr. unexpectedly left the premises and did not return, prior to the mediation being terminated, adjourned, or recessed by the DRC’s volunteer mediator.” Id.
The only explanation provided for why Rice left is that he “felt it best to put this matter in the hands of the Court.” Id. The Court found that “James’s departure violated both the letter and spirit of the Court’s order, which explicitly required him ‘to attend the mediation’ and to ‘be present during the entire mediation process.’ Accordingly, this appeal is dismissed.” Id. TEX. R. APP. P. 42.3(c).
The takeaway from the Rice case is that failure to comply with an appellate Court order– including an order to attend mediation– can be grounds for dismissal. A basis is also found for involuntary dismissal under Tex R. App. P. 42.3 (c). Involuntary Dismissal in Civil Cases: “Under the following circumstances, on any party’s motion — or on its own initiative after giving ten days’ notice to all parties — the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal: (a) for want of jurisdiction; (b) for want of prosecution; or (c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.”
While Rice is a fact-intensive case on appeal, it exemplifies the conditions that demonstrate lack of respect for the process and the consequences that could result. When a court orders mediation, best practice is for the parties to go and attend in good faith, to engage, and not to leave.
Many times a mediation that begins with unwilling parties ends with a mediated settlement agreement, resolution, and the whole ordeal behind them. The path to resolution is often a court-ordered mediation attended in good faith.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.