Current through Reg. 49, No. 38; September 20, 2024
(a) The Commission encourages the resolution
and early settlement of all contested matters through voluntary settlement
procedures.
(b) The following words
and terms, when used in this chapter, shall have the following meanings, unless
the context clearly indicates otherwise.
(1)
ADR--Alternative Dispute Resolution.
(2) ADR procedure--A non-judicial and
informally conducted forum for the voluntary settlement of contested matters
through intervention of an impartial third party.
(3) ADR director--The member of staff
designated by the Executive Director to coordinate and oversee ADR procedures
and mediators.
(4) Contested
matter--A complaint by a consumer or other interested party against a licensee
or establishment or a complaint opened by the Commission.
(5) Mediator--The person appointed by the ADR
Director to preside over ADR proceedings regardless of which ADR method is
used.
(6) Parties--The
complainants, respondents, agencies, employees, managers, supervisors,
licensees or consumers who are in conflict.
(7) Participants--The Executive Director, the
Staff Attorney, the complainant, the respondent, the person who timely filed
hearing requests which gave rise to the dispute or if parties have been named,
the named parties.
(8) Private
mediator--A person in the profession of mediation who is not a Texas state
employee and who has met all the qualifications prescribed by Texas law for
mediators.
(c) The
Commission or the ADR director may seek to resolve a contested matter through
any ADR procedure. Such procedures may include, but are not limited to, those
applied to resolve matters pending at the State Office of Administrative
Hearing (SOAH).
(d) Appointment of
Mediator.
(1) For each matter referred for
ADR procedures, the ADR Director shall assign a mediator, unless the
participants agree upon the use of a private mediator. The ADR Director may
assign a substitute or additional mediator to a proceeding as the ADR Director
deems necessary.
(2) A private
mediator may be hired for ADR procedures provided that:
(A) the participants unanimously agree to use
a private mediator;
(B) the
participants unanimously agree to the selection of the person to serve as the
mediator;
(C) the mediator agrees
to be subject to the direction of the ADR Director and to all time limits
imposed by the Director, the SOAH Administrative Law Judge (ALJ), statute or
rules.
(3) If a private
mediator is used, the costs for the services of the mediator shall be
apportioned equally among the participants, unless otherwise agreed upon by the
participants, and shall be paid directly to the mediator. In no event, however,
shall any such costs be apportioned to a governmental subdivision or entity
that is a statutory party to the hearing.
(4) All mediators in Commission mediation
proceedings shall subscribe to the ethical guidelines for mediators adopted by
the ADR Section of the State Bar of Texas.
(e) Qualifications of Mediators.
(1) The Commission shall establish a list of
mediators to resolve contested matters through ADR procedures.
(A) To the extent practicable, each mediator
shall receive 40 hours of formal training in ADR procedures through programs
approved by the ADR Director.
(B)
Other individuals may serve as mediators on an ad hoc basis in light of
particular skills or experience which will facilitate the resolution of
individual contested matters.
(C)
Each mediator shall have some knowledge in the area of the contested
matter.
(2) SOAH
mediators, employees of other agencies who are mediators and private pro bono
mediators may be assigned to contested matters as needed. If the mediator is a
SOAH ALJ, that person will not also sit as the judge ALJ for the case if the
contested matter goes to public hearing.
(f) Commencement of ADR.
(1) The Commission encourages the resolution
of disputes at any time, whether under this policy and procedure or not. ADR
procedures under this policy may begin, at the discretion of the ADR Director,
Executive Director or Staff Attorney.
(2) Upon unanimous motion of the parties and
the discretion of the ALJ, the provisions of this subsection may apply to
contested hearings. In such cases, it is within the discretion of the ALJ to
continue the hearing to allow use of the ADR procedures.
(g) When ADR procedures do not result in the
full settlement of a contested matter, the participants, in conjunction with
the mediator, shall limit the contested issues which will be tried at SOAH
through the entry of written stipulations. Such stipulations shall be forwarded
or formally presented to the ALJ assigned to conduct the hearing on the merits
and shall be included in the hearing record.
(h) Agreements of the participants reached as
a result of ADR must be in writing and are enforceable in the same manner as
any other written contract.
(i)
Confidentiality of Communications in Alternative Dispute Resolution Procedures.
(1) Except as provided in subsections (3) and
(4) of this section a communication relating to the subject matter made by the
participants in an ADR procedure whether before or after the institution of
formal proceedings, is confidential, is not subject to disclosure and may not
be used as evidence in any further proceedings.
(2) Any notes or record made of an ADR
procedure are confidential, and participants, including the mediator, may not
be required to testify in any proceedings relating to or arising out of the
matter in dispute or be subject to process requiring disclosure of confidential
information or data relating to or arising out of the matter in
dispute.
(3) If this section
conflicts with other legal requirements for disclosure of communications or
materials, the issue of confidentiality may; be presented to the ALJ to
determine whether the facts, circumstances and context of the communications or
materials sought to be disclosed warrant a protective order or whether the
communications or materials are subject to disclosure.
(4) The mediator may not, directly or
indirectly, communicate with the ALJ or any Commissioner, concerning any aspect
of ADR negotiations made confidential by this section.
