Don Prochaska v. Matthew Barnes, Montcalm Co., LLC, and Schain Leifer Guralnick ( 2015 )

Order issued December 18, 2015
In The
Court of Appeals
For The
First District of Texas
NO. 01-15-01044-CV
DON PROCHASKA, Appellant
V.
JOHNATHAN FELDMAN, Appellee
On Appeal from 334th District Court
Harris County, Texas
Trial Court Cause No. 2013-35800
MEMORANDUM ORDER
OF REFERRAL TO MEDIATION
The Court determines that it is appropriate to refer this appeal for resolution
by mediation. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.021, 154.022(a),
154.023 (Vernon 2005). Accordingly, the Court orders that this appeal be referred
to mediation unless any party to the appeal files an objection with the Clerk of this
Court within ten days after receiving this order. See id. § 154.022(b).
The parties shall choose a qualified mediator and agree on a reasonable fee
for the mediator’s services. 1 See id. §§ 154.052, 154.054(a) (Vernon 2005). When
the parties notify the Clerk of this Court of the name of the mediator, that person
shall be deemed appointed by the Court. See id. § 154.051 (Vernon 2005). The
parties should provide the mediator with a completed “Notification to Mediator”
and the “Appointment and Fee Report—Mediation” form. These documents can
be downloaded from the forms page of the Court’s website at
http://www.1stcoa.courts.state.tx.us.
The Court sets the following deadlines:
• No later than 15 days from the date that this order is issued, the
parties shall file with the Clerk of this Court a completed “Parties’
Notification to Court of Mediator.” This document can be
downloaded from the forms page of the Court’s website at
http://www.1stcoa.courts.state.tx.us.
• No later than 45 days from the date that this order is issued, the
parties shall conduct the mediation.
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The Court does not recommend mediators. Mediation information is
available from the Dispute Resolution Center of Harris County ((713) 755-
8274 and http://www.co.harris.tx.us/DRC), the Fort Bend Dispute
Resolution Center ((281) 342-5000), the Alternate Dispute Resolution
Section of the State Bar of Texas (http://www.texasadr.org/), and other
groups. The parties are not required to use a mediator recommended or
listed by these groups.
• No later than two days from the conclusion of the mediation,
the parties and the mediator shall advise the Clerk of this Court in
writing whether the parties did or did not settle the underlying dispute,
and the mediator shall file with the Clerk of this Court a completed
“Appointment and Fee Report—Mediation” form. This document can
be downloaded from the forms page of the Court’s website at
http://www.1stcoa.courts.state.tx.us.
All parties, or their representative with full settlement authority, shall attend
the mediation with their counsel. The mediator shall encourage and assist the
parties in reaching a settlement of their dispute, but may not compel or coerce the
parties to enter into a settlement agreement. See id. § 154.053(a) (Vernon 2005).
All communications relating to the mediation are confidential and not subject to
disclosure, except as set forth by law. See id. § 154.073 (Vernon 2005). The Clerk
of this Court, however, will file this order, any objection to this order, and the
completed “Parties’ Notification to Court of Mediator” and “Appointment and Fee
Report—Mediation” forms with the other documents filed in this appeal that are
available for public inspection.
Unless expressly authorized by the disclosing party, the mediator may not
disclose to either party information given in confidence by the other and shall at all
times maintain confidentiality with respect to communications relating to the
subject matter of the dispute. See id. § 154.053(b). Unless the parties agree
otherwise, all matters, including the conduct and demeanor of the parties and their
counsel during the settlement process, are confidential and may never be disclosed
to anyone, including this Court. See id. § 154.053(c).
The Court will consider the agreed fee for the mediator’s services to be
reasonable and tax that fee as a cost of the appeal unless the parties agree to
another method of payment. See id. § 154.054.
Nothing in this order modifies the timetables in the Texas Rules of Appellate
Procedure regarding the appellate record and briefs.
/s/ Russell Lloyd
Justice Russell Lloyd
Acting Individually