Court-Ordered Mediation on Appeal

Newsom, Terry & Newsom, LLP v. Henry S. Miller Commercial Co.

Dallas Court of Appeals, No. 05-20-00379-CV (February 22, 2022)

Justice Carlyle (Order, linked here)

In the U.S. Court of Appeals for the Fifth Circuit, it’s not unusual to get a notice that a case has been referred to the Circuit Mediation Program. When the circuit mediator has selected a case for the program, any party may opt out, which concludes mediation proceedings (at least as to that party). When the Court has referred a case to the program, the Court has discretion to grant or deny an opt-out request. Similarly, some Texas courts of appeals, like the First Court in Houston, have appellate mediation programs under which the court can order the parties to mediation.

The resources on the Fifth Court of Appeals website do not mention a formal mediation program. (One appears to have existed under a prior version of the Court’s local rules.) The Court’s current Internal Operating Procedures state that if “both parties notify the Court that they have agreed to a mediator, the Court will refer the case to mediation,” but do not speak to the Court’s ordering mediation without a request from the parties. Nonetheless, the Fifth Court has the power to order the parties to mediate under Chapter 154 of the Civil Practice and Remedies Code. The Court doesn’t frequently order parties to mediate without a request. But it just did so in Newsom, a legal malpractice case argued in November 2021.