Order filed March 24, 2015. 

In The

Fourteenth Court of Appeals

____________

NO. 14-15-00148-CV

____________

D. PATRICK SMITHERMAN, Appellant

V.

BANK OF AMERICA, N.A., Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2014-42122

ABATEMENT ORDER

We have determined that this case is appropriate for referral to mediation, an 

alternative dispute resolution process. See Tex. Civ. Prac. & Rem. Code §§ 

154.021—.073. Mediation is a forum in which an impartial person, the mediator, 

facilitates communication between parties to promote reconciliation or settlement. 

Id.§ 154.023(a). Any communication relating to the subject matter of the appeal 

made by a participant in the mediation proceeding is confidential. See Tex. Civ. 

Prac. & Rem. Code § 154.053. After mediation, the parties shall advise the court 

whether the case settled, or whether any further negotiation efforts are planned. 
The court ORDERS the appeal ABATED for a period of sixty days and 

refers the underlying dispute to mediation. Any party may file a written objection 

to this order with the clerk of this court within 10 days of the date of this order. 

See Tex. Civ. Prac. & Rem. Code § 154.022. If this court finds that there is a 

reasonable basis for the objection, the objection shall be sustained and the appeal 

reinstated on this court’s active docket. See id.

The court ORDERS that the mediation be held within 60 days of the date of 

this order. The court ORDERS that all parties or their representatives with full 

settlement authority shall attend the mediation process, with their counsel of 

record. The court FURTHER ORDERS that within 48 hours of completion of the 

mediation, the parties shall advise the court in writing whether the case settled.

If mediation fully resolves the issues in the case, the court ORDERS the 

parties to file a motion to dismiss the appeal, other dispositive motion, or a motion 

for additional time to file the dispositive motion, within 10 days of the conclusion 

of the mediation. 

The court ORDERS the appellate timetable in this case suspended for 60 

days from the date of this order.

The appeal is ABATED, treated as a closed case, and removed from this 

court’s active docket for a period of sixty days. The appeal will be reinstated on

this court’s active docket after sixty days. Any party may file a motion stating 

grounds for reinstating the appeal before the end of the sixty-day period. Any party 

may also file a motion to dismiss the appeal or other dispositive motion at any 

time. Any party may file a motion to extend the abatement period for completion 

of mediation or to finalize a settlement. 

PER CURIAM
RULES FOR MEDIATION

i. 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 disputes, but may not impose his own 

judgment on the issues for that of the parties.

ii. Agreement of Parties. Whenever the parties have agreed to mediation they shall be deemed to have 

made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their 

agreement to mediate.

iii. Consent to Mediator. The parties consent to the appointment of the individual named as mediator in 

their case. The Mediator shall act as an advocate for resolution and shall use his best efforts to assist the 

parties in reaching a mutually acceptable settlement.

iv. Conditions Precedent to Serving As Mediator. The mediator shall not serve as a mediator in any 

dispute in which he has any financial or personal interest in the result of the mediation. Prior to 

accepting an appointment, the Mediator shall disclose any circumstances likely to create a presumption 

of bias or prevent a prompt meeting with the parties. In the event that the parties disagree as to whether 

the Mediator shall serve, the Mediator shall not serve.

v. Authority of the 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 meetings 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.

vi. Commitment to Participate in Good Faith. While no one is asked to commit to settle their case in 

advance of mediation, all parties commit to participate in the proceedings in good faith with the 

intention to settle, if at all possible.

vii. Parties Responsible for Negotiating Their Own Settlement. The parties understand that the Mediator 

will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a 

settlement acceptable to them. 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.

viii. 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 to the Mediator prior to the mediation.

ix. 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.

x. Identification of Matters in Dispute. Prior to the first scheduled mediation session, each party shall 

provide the Mediator with confidential information in the form requested by the Mediator setting forth 
its position with regard to the issues that need to be resolved.

At or before the first session, the parties will be expected to produce all information reasonably required 

for the Mediator to understand the issues presented. The Mediator may require any party to supplement 

such information.

xi. 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.

xii. Confidentiality. 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 agreement shall pay all 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. 

The parties shall maintain the confidentiality of the mediation and shall not relay on, or introduce as 

evidence in any arbitral, judicial, or other proceeding: a) views expressed or suggestions made by 

another party with respect to a possible settlement of the dispute; b) admissions made by another party 

in the course of the mediation proceedings; c) proposals made or views expressed by the Mediator; or d) 

the fact that another party had or had not indicated willingness to accept a proposal for settlement made 

by the Mediator.

xiii. No Stenographic Record. There shall be no stenographic record made of the mediation process.

xiv. 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.

xv. Termination of Mediation. The mediation shall be terminated: a) by the execution of a settlement 

agreement by the parties; b) by declaration of the 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.

xvi. Exclusion of Liability. The Mediator is not a necessary or proper party in judicial proceedings relating 

to the mediation. Neither Mediator nor any law firm employing Mediator shall be liable to any party for 

any act or omission in connection with any mediation conducted under these rules.

xvii. Interpretation and Application of Rules. The Mediator shall interpret and apply these rules.

xviii. Fees and Expenses. The Mediator's daily fee shall be agreed upon prior to mediation and 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. 
Fourteenth Court of Appeals

MEDIATORS REPORT

Date: ____________________________

Christopher A. Prine, Clerk 

301 Fannin, Room 245

Houston, TX 77002

Re: Appellate number:

Case style:

In compliance with this court’s order dated ________________________________, I conducted a mediation 

proceeding in this case on _____________________________.

The mediation [ did / did not ] result in a [ full / partial ] resolution of the matters in dispute. To my 

knowledge, further negotiation efforts [ are / are not ] planned.

The parties and mediator have agreed that the mediator shall be paid as follows:

$_______________________ paid by ______________________

$_______________________ paid by ______________________

$_______________________ paid by ______________________

$_______________________ paid by ______________________

Mediator:

Address:

Telephone

E-Mail Address

Return immediately after mediation to:

14th Court of Appeals; 301 Fannin, Room 245, Houston, Texas 77002

(713) 274-2800