The Supreme Court of Texas today adopted “a rule short of completely barring mandamus review” of orders that compel arbitration — but only just.
Their Unanimous Honors acknowledged the court’s practice of regularly granting mandamus relief from orders denying arbitration. Yes, Justice Brister explained, the court does deem the remedy of appeal from final judgment inadequate as a matter of law when a trial court refuses to compel arbitration but adequate as a matter of law when the trial court compels arbitration. In re Gulf Exploration, LLC, No. 07-0055 (Tex. Apr. 17, 2009) (granting mandamus to overturn court of appeals mandamus order that overturned trial court order compelling arbitration).
Blawgletter has our doubts. A manifest mistake in refusing to enforce an arbitration clause that plainly applies to a dispute strikes us as no worse than a patent error in granting enforcement of one that doesn’t apply. Either way, somebody has to endure a proceeding he, she, or it didn’t agree to.
And we respectfully disagree with the court’s justification for the differential treatment — that the statutory allowance of interlocutory review in the refusal-to-enforce scenario but withholding of it in the improper enforcement setting makes all the difference. Doesn’t a disputant whose only possible remedy is mandamus (short of appealing a final judgment that enforces an invalid arbitration award) need it even more?