                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                  §
 IN RE:                                                             No. 08-18-00207-CV
                                                  §
 MARY ANNE VINSON,                                             AN ORIGINAL PROCEEDING
                                                  §
 RELATOR.                                                             IN MANDAMUS
                                                  §

                                                  §

                                          OPINION

       Mary Anne Vinson filed a mandamus petition against the Honorable Luis Aguilar, Judge

of the 243rd District Court of El Paso County, Texas. Vinson is challenging Respondent’s order

compelling her to attend mediation in cause number 2018DCV0953 styled Jaime Soto v. Stephanie

Lisa Dutchover even though she is not a party to the suit.

       Judge Aguilar left office on December 31, 2018, and the Honorable Selena Solis took office

as the Judge of the 243rd District Court on or about January 1, 2019. On our own motion, we

issued an order that Judge Solis be substituted as Respondent in this original proceeding. See

TEX.R.APP.P. 7.2(a). We also gave Judge Solis an opportunity to reconsider Judge Aguilar’s ruling

that is the subject of this original proceeding. Judge Solis notified the Court that she has reviewed

the order and will not be issuing any new orders. We conditionally grant mandamus relief.

                                     FACTUAL SUMMARY

       This original proceeding arises from a personal injury lawsuit pending in the 243rd District
Court (cause number 2018DCV0953). The real party in interest, Jaime Soto, filed a negligence

suit against Stephanie Lisa Dutchover alleging that she failed to control her speed and rear-ended

Soto’s vehicle. Allstate insured Dutchover and Vinson is an adjuster employed by Allstate.

Allstate and Vinson are not parties to the suit.

       On August 16, 2018, the trial court signed an order appointing a mediator and requiring

the parties to schedule a mediation within thirty days. The mediation order further required that:

“All Parties and their representatives with full settlement authority shall attend the mediation

process, with their counsel of record.” The parties complied with the order and attended mediation

on September 28, 2018. Vinson did not attend the mediation, but an Allstate representative

attended. On October 1, 2018, the mediator filed a report stating that mediation was unsuccessful.

       On October 23, 2018, Soto filed a motion to compel which stated the following:

       On or about September 28, 2018, Plaintiff and Defendant attended Court-Ordered
       mediation at the offices of Daniel G. Mena, but were unsuccessful in settling this
       matter. Only two of the four hours allotted for mediation were used. The
       representative from Allstate that attended the mediation was not the handling claims
       adjuster who has been negotiating with Plaintiff throughout the course of this case.
       Under this Court's order, ‘all parties and their representatives with full settlement
       authority shall attend the mediation process, with their counsel of record.’ See
       Exhibit A. Plaintiff requests this Honorable Court to compel the handling claims
       adjuster, Mary Anne Vinson, who has full settlement authority, to attend the
       remaining two hours of Court-Ordered mediation. [Emphasis in orig.].

Following a hearing held on November 1, 2018, the trial court granted the motion and entered an

order compelling Vinson to attend mediation. Vinson did not provide the Court with a record of

the hearing on the motion to compel, but the petition includes counsel’s certification that no

evidence was received at the November 1, 2018 hearing. See TEX.R.APP.P. 52.7(a)(2)(requiring

relator to file with the petition “a properly authenticated transcript of any relevant testimony from

any underlying proceeding, including any exhibits offered in evidence, or a statement that no

testimony was adduced in connection with the matter complained.”). Counsel’s certification is

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supported by a recitation in the trial court’s order that the order was based on the parties’ arguments

presented at the hearing.

             COMPELLING INSURANCE COMPANY’S REPRESENTATIVE

                                   TO ATTEND MEDIATION

       In her sole issue, Vinson contends that the trial court clearly abused its discretion by

compelling her to attend mediation in the underlying lawsuit.

                                           Standard of Review

       To be entitled to mandamus relief, a relator must generally meet two requirements. First,

the relator must show that the trial court clearly abused its discretion. In re Prudential Insurance

Company of America, 148 S.W.3d 124, 135 (Tex. 2004). A trial court abuses its discretion when

it acts arbitrarily, capriciously, and without reference to guiding principles. In re Green, 527

S.W.3d 277, 279 (Tex.App.—El Paso December 2, 2016, orig. proceeding); In re Mid-Century

Insurance Company of Texas, 426 S.W.3d 169, 178 (Tex.App.—Houston [1st Dist.] 2012, orig.

proceeding). Second, the relator must establish it does not have an adequate remedy by appeal.

In re Prudential, 148 S.W.3d at 135-36.

                    Compelling Insurance Representative to Attend Mediation

       It is the policy of this state to encourage the peaceable resolution of disputes and the early

settlement   of    pending    litigation    through     voluntary    settlement   procedures.      See

TEX.CIV.PRAC.&REM.CODE ANN. § 154.002. To effectuate this policy, Section 154.021(a) of the

Civil Practice and Remedies Code authorizes a court on its own motion or the motion of party to

refer a dispute to an alternative dispute procedure.                TEX.CIV.PRAC.&REM.CODE ANN.

§ 154.021(a). The parties must be given notice of the referral order and have ten days to file a

written objection. TEX.CIV.PRAC.&REM.CODE ANN. § 154.022(b). If there is a reasonable basis



                                                  -3-
for a party’s objection, the court may not refer the dispute pursuant to Section 154.021.

TEX.CIV.PRAC.&REM.CODE ANN. § 154.022(c). The person appointed to facilitate an ADR

procedure shall encourage and assist the parties in reaching a settlement of the dispute, but he may

not compel or coerce the parties to enter into a settlement agreement. TEX.CIV.PRAC.&REM.CODE

ANN. § 154.053(a). Appellate courts have further held that while a trial court may compel litigants

to sit down with each other, it cannot force or compel them to settle their differences. See In re

Daley, 29 S.W.3d 915, 918 (Tex.App.—Beaumont 2000, orig. proceeding); Nueces County v. De

Pena, 953 S.W.2d 835, 836 (Tex.App.—Corpus Christi 1997, orig. proceeding); Decker v.

Lindsay, 824 S.W.2d 247, 250-51 (Tex.App.—Houston [1st Dist.] 1992, orig. proceeding).

       The trial court’s authority under Section 154.021 to refer a dispute for an ADR procedure

includes the power to order the parties and their representatives having full settlement authority to

attend mediation. See Nueces County, 953 S.W.2d at 836. It is generally understood that the trial

court may order that an insurance company’s representative having full settlement authority must

attend mediation. See In re Proassurance Insurance Company, No. 05-15-01256-CV, 2016 WL

25645, at *1 (Tex.App.—Dallas January 4, 2016, orig. proceeding)(noting that the trial court’s

standing special mediation order provided that when an insuring or indemnifying entity enjoys the

exclusive right to make settlement decisions for a named party, then a representative of such entity

with unqualified authority to settle the dispute must be present throughout mediation); In re Daley,

29 S.W.3d at 920 (Walker, C.J., dissenting opinion)(observing that trial court had authority to

order the attendance of those persons or entities having authority to settle, whether that be the

attorneys, the parties, “or those holding the settlement purse strings.”).

       Soto contends in his mandamus response that Vinson “personally interfered with a core

function of the trial court” by “refusing to attend mediation.” The mediation referral order did not



                                                 -4-
order Allstate or Vinson to attend mediation. Consequently, Vinson did not refuse to attend

mediation as claimed by Soto. While the trial court has authority to order an Allstate representative

having full settlement authority to attend the mediation, that does not mean that the trial court can

choose the representative or mandate that one representative rather than another must attend. See

Nueces County, 953 S.W.2d at 836-37 (granting mandamus relief where trial court ordered county

judge to attend mediation even though county had given county attorney authority to settle the

dispute on its behalf and observing that a person’s influence over settlement proceedings does not

render that person subject to mandatory attendance at mediation). Soto did not allege in his motion

to compel or offer any evidence showing that the Allstate representative who attended the initial

mediation did not have full settlement authority. He only alleged that the representative “was not

the handling claims adjuster who has been negotiating with Plaintiff throughout the course of this

case.” Similarly, Soto argues in his mandamus response that the “record undisputedly shows that

Vinson was the person most familiar with Plaintiff’s claim, demonstrated an effort to move the

case forward, increased the offer and expressed that [Allstate] was open to ‘continued discussions’

and ‘mediation in the future, if needed.’” [Emphasis in orig.]. Soto does not cite any authority to

support his position that a court is authorized to compel a particular representative to attend

mediation simply because that representative is more familiar with the case and had expressed a

willingness to have continued settlement discussions.

       Soto also faults Vinson for failing to prove that the Allstate representative who attended

mediation had full settlement authority, but as the movant seeking to compel Vinson’s attendance

in place of the other Allstate representative, Soto had the burden to show that the other Allstate

representative did not have full settlement authority. In the absence of such evidence, the trial

court did not have authority to compel Vinson’s attendance. Vinson’s sole issue is sustained.



                                                -5-
Respondent is directed to set aside the November 1, 2018 order granting Soto’s motion to compel

Vinson to attend mediation. The writ of mandamus will not issue unless Respondent fails to

comply with this opinion within a reasonable time period.



June 10, 2019
                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.




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