I missed the Texas Court of Appeals decision in Burke v. Roberson, when it issued late last year. Better late than never, as I have been clued into this significant opinion by this article in The National Law Review authored by Sydney Warren and David Pugh of Bradley Arant.
As the article summarizes, the court vacated an arbitration award, ruling that the arbitrator exceeded his powers by deciding the case when the parties failed to either participate or waive pre-arbitration mediation, which was a contractual condition precedent to arbitration. As the article notes, “the court held that the dispute was never properly before the arbitrator and that the arbitrator therefore exceeded his powers in issuing the award.”
Significantly, the court rejected the arbitration victor’s argument “that his claims were properly before the arbitrator because the Respondents waived their right to mediation by ‘ignoring’ his mediation demands.” Although the court offers no articulation of how a party should address such a situation, the implication appears to require affirmative action to proceed with a mediation.