Failure To Appear For Court Ordered Mediation Is Sanction able Conduct (Roberts. V. Rose, 2000 WI 1534749)


    This case arises from a lawsuit originally filed by A.D. Murr v. Pete Rose, d/b/a El Segundo Ranch. Murr originally sued Rose for an alleged unpaid debt. Mr. Murr hired the appellant, Kirby J. Roberts, to represent him. Rose filed a counterclaim against Murr. On January 21, 1999, the court ordered Murr and Rose to participate in mediation. At the hearing at which the sanctions were assessed, Mr. Murr denied ever seeing the order of referral to mediation. He also denied that his attorney, Mr. Roberts, advised him prior to March 17, 1999, of the scheduled date for the mediation or that he had been ordered to attend mediation. According to Mr. Murr's testimony, the only conversation regarding mediation occurred after March 17, 1999, the scheduled date of the mediation.

    Roberts did fax a letter to the mediator advising the mediator that he had a conflict with the mediation time. There were no other discussions concerning the mediation, or rescheduling the mediation.

    As a result of the failure of Roberts and Murr to appear at mediation, the Court sanctioned them jointly to pay Rose $1,250.00 for failure to appear at the mediation. At a subsequent hearing, the Court modified it's order of sanctions requiring Roberts to pay the full $1,250.00 as sanctions originally assessed, and to reimburse Murr $945.00 in attorneys fees. No sanctions were ordered against Murr.


    The appeal was based upon the position that the trial court abused its discretion in assessing sanctions. The court noted that "a trial court abuses its discretion when it acts without reference to any guiding rules or principals." Johnson v. Fourth Court of Appeals, 700 SW2nd 916, 918 (Tex. 1985). The court also noted that the courts have authority to sanction parties for bad faith abuses if doing so will aid in the exercise of its jurisdiction, the administration of justice, and the preservation of the court's independence and integrity." In re Max Bennett, 960 SW2nd 35, 40 (Tex. 1997).

    There is a dual standard to determine whether the imposition of sanctions is just. There must be (1) a direct relationship between the offensive conduct and the sanction imposed, and 2) an attempt by the trial court to determine whether the offensive conduct is attributable to counsel only, to the party only, or to both. Wetherhold v. Mercado Mexico Cafi, 844 SW2nd 806, 808 (Tex. App. - Eastland, 1992, no writ).

    The legitimate purpose of discovery sanctions is threefold. The first is to secure compliance with discovery rules. The second is to deter other litigants from similar misconduct. The third is to punish violators. Chrystler Corp. v. Blackmon, 841 SW2nd 844, 849 (Tex. 1996).

    In finding that the court's sanctions against Roberts were just, the Court of Appeals noted that Murr and Roberts were not being sanctioned for a failure to mediate in good faith. In Decker v. Lindsay, 824 SW2nd 247, 250 (Tex. App.-Houston [1st District] 1992, no writ), the Court of Appeals found that while parties cannot be forced to resolve their disputes at mediation, they can be compelled to sit down with each other. Instead, the sanctions were assessed for failing to appear. The authority of a trial court to sanction a party for failing to attend a court ordered settlement conference has been upheld in Gleason v. Lawson, 850 SW2d 714, 717 (Tex. App.-Corpus Christi, 1993, no writ).

    In applying the two prong test, the Court found that there was a direct relationship between Roberts' acts of bad faith in his representation of Murr and his failure to attend the mediation. Such satisfied the relationship between the offensive conduct and the sanction imposed, since the sanction was only imposed against Roberts. In considering the second prong of the test, that the sanctions be fair, the court found that the sanctions were appropriate. The sanctions were not outrageously punitive, and were only assessed against Roberts. As a result, the Court affirmed the trial court's ruling and found no abuse of discretion.


While parties cannot be required to settle their differences at a mediation the trial court does retain authority to require parties to appear and at least talk about their differences. Failure to do so can result in sanctions being assessed.

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