AGL Constructors, a Joint Venture Arche Western Contractors, LLC, Granite Construction Company and the Lane Construction Corp. v. PTG-HDR JV, Parsons Transportation Group, Inc. and HDR Engineering, Inc. ( 2021 )


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  • Order entered October 22, 2021
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-20-00053-CV
    AGL CONSTRUCTORS, A JOINT VENTURE, ARCHER WESTERN
    CONTRACTORS, LLC, GRANITE CONSTRUCTION COMPANY, AND
    THE LANE CONSTRUCTION CORP., Appellants/Cross-Appellees
    V.
    PTG-HDR JV, PARSONS TRANSPORTATION GROUP, INC., AND HDR
    ENGINEERING, INC., Appellees/Cross-Appellants
    On Appeal from the 192nd Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DC-17-05165
    ORDER
    This case is appropriate for mediation pursuant to Chapter 154 of the Texas
    Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.
    §§ 154.001-.073. Accordingly, we ORDER this case referred to mediation. Any
    objection to this Order must be filed and served upon all parties within 10 days
    from the date of this Order; an objection that is neither timely filed nor ruled upon
    before the scheduled mediation may be waived.
    Mediation is a mandatory but nonbinding settlement conference, conducted
    with the assistance of the mediator.       Mediation is private, confidential and
    privileged. After mediation, the mediator will advise the Court only that the case
    did or did not settle.
    Within 14 days of the date of this order, the parties must agree upon the
    person who will act as mediator and notify this Court of the mediator’s name and
    contact information.     Unless the mediator agrees to mediate without fee, the
    mediator will negotiate a reasonable fee with the parties, which shall be divided
    and borne equally by the parties unless agreed otherwise, paid by parties directly to
    the mediator, and taxed as costs. If the parties do not agree upon the fee requested
    by the mediator, the Court will set a reasonable fee, which shall be taxed as costs.
    All parties and their counsel are bound by the mediation rules attached to this order
    and shall complete the information forms furnished by the mediator.
    Before the first scheduled mediation session, all parties shall provide the
    mediator and all attorneys of record with an information sheet setting forth their
    positions about the issues that need to be resolved. At or before the first session,
    all parties shall produce all information necessary for the mediator to understand
    the issues presented. The mediator may require any party to supplement the
    information provided.
    Named parties shall be present during the entire mediation process and each
    corporate party must be represented by an executive officer with authority to settle.
    Mediation shall take place at a time to be agreed by the parties and the mediator.
    Failure or refusal to attend the mediation as scheduled may result in the imposition
    of sanctions, as permitted by law. The mediator shall notify the Court about the
    outcome of the mediation within 10 days of the conclusion of the mediation
    session.
    /s/    AMANDA L. REICHEK
    PRESIDING JUSTICE
    RULES FOR MEDIATION
    1.   Definition of Mediation. Mediation is a process under which an impartial
    person, the mediator, facilitates communication between the parties to
    promote reconciliation, settlement or understanding among them. The
    mediator may suggest ways of resolving the dispute, but may not impose the
    mediator’s own judgment on the issues for that of the parties.
    2.   Conditions Precedent Serving as Mediator. The mediator shall not serve
    as a mediator in any dispute in which he or she has any financial or personal
    interest in the result of the mediation. Prior to accepting an appointment, the
    mediator shall disclose any circumstance likely to create a presumption of
    bias or prevent a prompt meeting with parties.
    3.   Authority of Mediator. The mediator does not have the authority to decide
    any issue for the parties, but will attempt to facilitate the voluntary
    resolution of the dispute by the parties. The mediator is authorized to
    conduct joint and separate meeting with the parties and to offer suggestions
    to assist the parties achieve settlement. If necessary, the mediator may also
    obtain expert advice concerning technical aspects of the dispute, provided
    that the parties agree and assume the expenses of obtaining such advice.
    Arrangements for obtaining such advice shall be made by the mediator or
    the parties, as the mediator shall determine.
    4.   Parties Responsible for Negotiating Their Own Settlement. The parties
    understand the mediator will not and cannot impose a settlement in their
    case. The mediator, as an advocate for settlement, will use every effort to
    facilitate the negotiations of the parties. The mediator does not warrant or
    represent that settlement will result from the mediation process.
    5.   Authority of Representatives. Party representatives must have authority to
    settle and all persons necessary to the decision to settle shall be present. The
    names and addresses of such persons shall be communicated in writing to all
    parties and the mediator.
    6.   Time and Place of Mediation. The mediator shall fix the time of each
    mediation session. The mediation shall be held at the office of the mediator,
    or at any other convenient location agreeable to the mediator and the parties,
    as the mediator shall determine.
    7.    Privacy. Mediation sessions are private. The parties and their
    representatives may attend mediation sessions. Other persons may attend
    only with the permission of the parties and with the consent of the mediator.
    8.    Confidentiality and Privilege. Confidential information disclosed to a
    mediator by the parties or by witnesses in the course of the mediation shall
    not be divulged by the mediator. All records, reports or other documents
    received by a mediator while serving in that capacity shall be confidential.
    The mediator shall not be compelled to divulge such records or to testify in
    regard to the mediation in any adversary proceeding or judicial forum. Any
    party that violates this order shall pay all reasonable fees and expenses of the
    mediator and other parties, including reasonable attorney’s fees, incurred in
    opposing the efforts to compel testimony or records from the mediator.
    9.    No Stenographic Record. There shall be no stenographic record of the
    mediation process and no person shall record any portion of the mediation
    session.
    10.   No Service of Process at or near the site of the Mediation session. No
    subpoenas, summons, complaints, citations, writs or other process may be
    served upon any person at or near the site of any mediation session upon any
    person entering, attending or leaving the session.
    11.   Termination of Mediation. The mediation shall be terminated: A) By the
    execution of a settlement agreement by the parties; B) By declaration of
    mediator to the effect that further efforts at mediation are no longer
    worthwhile; or, C) after the completion of one full mediation session, by a
    written declaration of a party or parties to the effect that the mediation
    proceedings are terminated.
    12.   Interpretation and Application of Rules. The mediator shall interpret and
    apply these rules.
    13.   Fees and Expenses. The mediator’s daily fee, if agreed upon prior to
    mediation, shall be paid in advance of each mediation day. The expenses of
    witnesses for either side shall be paid by the party producing such witnesses.
    All other expenses of the mediation, including fees and expenses of the
    mediator, and the expenses of any witness and the cost of any proofs or
    expert advice produced at the direct request of the mediator, shall be borne
    equally by the parties unless they agree otherwise.
    

Document Info

Docket Number: 05-20-00053-CV

Filed Date: 10/22/2021

Precedential Status: Precedential

Modified Date: 10/27/2021