Are Parties Required to Mediate in Good Faith?

By Brett Goodman

Unlike many other jurisdictions, the Texas statutes are silent on the issue of good faith mediation. Perhaps the most pertinent provision within chapter 154 of the Texas Civil Practices and Remedies Code is found at §154.002, stating, “It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures” Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (emphasis added).

This “voluntary” requirement implies no good faith requirement, as mandating good faith places a pressure on those involved in the mediation that could surpass a truly voluntary process. Although a good faith requirement would add to the perceived legitimacy of the mediation process and act as a deterrent to unwanted conduct, several other concerns would arise and provide insight why the idea has not been adopted in Texas. Placing the focus on the conduct of parties in mediation acts as a distraction to the main goal underlying the process, encourages frivolous claims over the good faith or lack thereof, and overall could discourage participation in mediation altogether.

The case history in Texas shows a firm rejection of a good faith requirement. Shortly after the passage of the Texas ADR Act, the Texas Court of Appeals in Houston ruled void a mediation referral requiring parties to negotiate in good faith because “[a] court cannot force the disputants to peaceably resolve their differences, but it can compel them to sit down with each other.”Decker v. Lindsay, 824 S.W.2d 247, 250 (Tex. App. — Hous. [1st Dist.] 1992, no writ).

This has been the norm within the Texas courts, as a Fort Worth court described, “An order requiring ‘good faith’ negotiation does not comport with the voluntary nature of the mediation process and [is] void.” In re Acceptance Ins. Co., 33 S.W.3d 443, 452 (Tex. App. — Fort Worth 2000, no pet.). Because the trial court in that Fort Worth case made an order that was void because of its good faith requirement, the court could not make further inquiry as to whether that court order was adhered to.

One exception that could arise concerning good faith deals with filing an objection to mediation, which must be done within ten days of the court ordering a mediation in order to have effect. A Texas court has approved a sanction for a failure to mediate in good faith where the Texas Department of Transportation did not expressly object. See Texas Dept. of Transp. v. Pirtle, 977 S.W.2d 657, 658 (Tex. App.–Fort Worth 1998, pet. denied). In closing, this court declared, “We find that it is not an abuse of discretion for a trial court to assess costs when a party does not file a written objection to a court’s order to mediate, but nevertheless refuses to mediate in good faith.”

Given the chance to continue down this path, however, the court of appeals in Austin rejected this mode of thought and declined to follow Pirtle. See Texas Parks & Wildlife Dept. v. Davis, 988 S.W.2d 370, 375 (Tex. App. — Austin 1999, no pet.). In this case, the Texas Parks and Wildlife Department did object to mediation according to proper procedure in a suit where park guest Davis was harmed as the result of a bench collapsing underneath him, but the court overruled the objection. Unlike Pirtle, though, the Department did attend mediation and made an offer, so the Department’s complaint was sustained “as to the trial court’s award of attorney’s fees as a sanction for the Department’s alleged failure to negotiate in good faith.” Given the chance to make exceptions to the lack of a good faith requirement commonplace, Texas courts have not followed that path.

The Texas tendency to not require good faith is backed by several sound policy justifications. Requiring good faith would necessitate more judicial intrusion into the mediation process than is currently taking place, thus threatening the fundamental rights of the parties within mediation. In cases when the good faith requirement would come into collision with the confidentiality guarantees so that confidentiality would have to be breached in order to analyze what happened during mediation for good faith or lack thereof, the parties would be greatly hindered. This would almost certainly degrade confidence in mediation and discourage mediation altogether. Because the main goal of mediation should be to resolve the parties’ dispute, a good faith requirement may act as a distraction to the main goal and sidetrack what is really supposed to be achieved. Finally, a good faith requirement may open up the floodgates to frivolous claims of a lack of good faith, further straining the purposes of mediation and hindering the process. See Samara Zimmerman, Judges Gone Wild: Why Breaking the Mediation Confidentiality Privilege for Acting in “Bad Faith” Should be Reevaluated in Court-Ordered Mandatory Mediation, available here.

Technorati Tags: law, ADR, arbitration

Brett Goodman is a summer intern at Karl Bayer, Dispute Resolution Expert. Brett is a J.D. candidate at The University of Texas School of Law. He holds degrees in Finance, Mathematics, and Spanish from Southern Methodist University.