“You Can’t Make Me”—Court Recognizes Limits on Authority to Order Specific Adjuster’s Mediation Attendance

July 12th, 2019 By Eric S. Peabody

In the course of litigation stemming from a motor vehicle accident, an El Paso trial court ordered the parties and their representatives “with full settlement authority” to mediation.  The defendant’s insurer, Allstate, sent a representative who was not the handling adjuster to the mediation.  The mediation was unsuccessful.  The plaintiff subsequently filed a motion to compel attendance of the adjuster handling the claim at a second mediation, which the court granted.  The adjuster sought mandamus relief from the trial court’s order in a suit styled In re Vinson, 2019 WL 2417441 (Tex. App.–El Paso, June 10, 2019, orig. proceeding).

Siding with the petitioning adjuster, the court of appeals held that the trial court had authority to order an Allstate representative to attend the mediation, but could not “choose the representative or mandate that one representative rather than another must attend.” Id. at 3.  Because the plaintiff made no showing that the attending Allstate representative lacked full settlement authority, the trial court “did not have authority to compel Vinson’s [the handling adjuster’s] attendance,” even though she was more familiar with the case and had expressed a willingness to engage in continued settlement negotiations. Id.  In its discussion of the rules governing alternative dispute resolution (“ADR”) under Chapter 154 of the Texas Civil Practice and Remedies Code, the court noted other limits on a trial court’s authority to order ADR, including the right of parties to object to ADR with a reasonable basis, and a court’s or ADR facilitator’s lack of authority to compel or coerce a settlement. Id. at 2.

Takeaways:  While trial courts have wide latitude to order ADR to promote the public policy encouraging the peaceable resolution of disputes and early settlement, parties and their representatives do retain some autonomy in crafting their participation in ADR. Knowing where the line is—and deciding whether it warrants mandamus relief—can be a difficult call.