In Texas, a party has to object in writing to the mediation referral within ten days after receiving notice. The court, in its discretion, may or may not refer the dispute to mediation. Section 154.022 of the Texas ADR Act provides the basis for objection to referral pending litigation: (a) If a court determines that a pending dispute is appropriate for referral under Section 154.021, the court shall notify the parties of its determination. (b) Any party may, within 10 days after receiving the notice under Subsection (a), file a written objection to the referral. (c) If the court finds that there is a reasonable basis for an objection filed under Subsection (b), the court may not refer the dispute under Section 154.021. In Texas Dept. of Trans. v. Pirtle, the Fort Worth Court of Appeals addressed the consequences for not filing an objection under the Texas ADR Act. See Texas Dept. of Transp. v. Pirtle, 977 S.W.2d 657, 658 (Tex. App. — Fort Worth 1998, pet. denied). There, the defendant, the Texas Department of Transportation, failed to object to the mediation then, it refused to participate in the mediation. The trial court subsequently sanctioned the defendant. The defendant argued that the defendant never settles cases as a matter of policy. The court distinguished Pirtle from other cases where the duty to mediate in good faith did not apply. Gleason v. Lawson, 850 S.W.2d 714 (Tex. App. – Corpus Christi 1993, no writ) (Court did not order the mediation); Hansen v. Sullivan, 886 S.W.2d 467 (Tex. App. – Houston [1st Dist.] 1994, no writ) (The parties mediated in good faith but the matter could not be resolved); Decker v. Lindsay, 824 S.W.2d 247 (Tex. App.–Houston [1st Dist.] 1992, no writ) (Party objected to the mediation order but the court overruled the objection). Finally, the court of appeals, in upholding the sanctions award, found that the duty to mediate attaches when a party is served with a mediation order and fails to object. Technorati Tags: law, ADR, arbitration

The 82nd regular session of the Texas Legislature adjourned on May 30, 2011. More than 1,500 bills and resolutions have been sent to Governor Rick Perry. The Governor has until June 19th to sign, veto, or let the bills become law without a signature. Find the ADR bills filed during this session here. Governor Perry has already called for a special session starting on May 31st, the session is limited to: Legislation relating to fiscal matters necessary for the implementation of HB 1 as passed by the 82nd Legislature during the regular session, including measures that will allow school districts to operate more efficiently; Legislation relating to healthcare cost containment, access to services through managed care, and the creation of economic and structural incentives to improve the quality of Medicaid services; and Congressional redistricting. Stay tuned to Disputing for more legislative updates! Technorati Tags: arbitration, ADR, law

Our blog contributor Don Philbin has published his yearly survey of ADR case law in the Fifth Circuit. Here is part of the introduction: Alternative Dispute Resolution as a whole is thriving. Civil jury trials continued at multi-decade lows, both absolutely and as a percentage of dispositions.1 And alternatives to those trials have become mainstream. But not all Alternative Dispute Resolution (ADR) is equal. As ADR users have become more sophisticated buyers, they are thin-slicing their available processes. Mediation is growing in popularity and rarely results in a court challenge. It is popular because it is not rule-bound and stable because of clear law protecting the process. Arbitration, on the other hand, has drawn more criticism with increased use and dominates this year’s case review. Though nineteen arbitration cases were decided by the Fifth Circuit this term, that is less than half the number decided just two years ago. And most were quietly decided with unpublished and often per curiam opinions, which is consistent with broader circuit trends. While circuit activity in the area has calmed, the United States Supreme Court continues to accept and decide arbitration cases that have a pronounced impact on practice not only in the Fifth Circuit but in state-court cases governed by the Federal Arbitration Act (FAA). Three of seventy-three October 2009 Term Supreme Court opinions focused on arbitration, there is at least one more pending this October 2010 Term, and the Court has agreed to hear yet another during the October 2011 Term. Most of the Fifth Circuit cases involved pre-arbitration challenges to the arbitral process, and less than half of those were successful. Those are good odds compared to the post-arbitration challenges seeking to vacate an award: not a single arbitration award was vacated during the term. This is attributable in large part to two decades of U.S. Supreme Court rulings that have moved pre-dispute arbitration agreements “from disfavored status to judicially-denominated „super-clauses.?” As a result, arbitrators may the rate of disposition by jury trial 43.7%. In 2009, 0.6% of civil filings were disposed of by jury trial, up from 0.5% in both 2007 and 2008. You may download the article here. Technorati Tags: law, ADR, arbitration

Section 154.054 of the Texas ADR Act discusses compensation of impartial third parties-such as a mediator. The Act allows the court to set a reasonable fee for the services for a court-appointed mediator. (Read more about court-ordered mediation here.) Unless the parties agree to a method of payment, the court shall tax the fee for the services of an impartial third party as other costs of suit. The parties can also agree to split the mediation fees other than half and half. Furthermore, if a party is unable to pay for its part of the mediation fees, such party may file an objection. If the court denies the objection, then the party may initiate a mandamus proceeding on the grounds that the court abused its discretion. Technorati Tags: law, ADR, arbitration