Current through Reg. 49, No. 38; September 20, 2024
(a)
Policy. The Board encourages the resolution and early settlement of all
contested matters through voluntary settlement procedures. Board employees
shall implement this policy.
(b)
Definitions. 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) Alternative dispute
resolution procedure or ADR procedure--A nonjudicial and informally conducted
forum for the voluntary settlement of contested matter through intervention of
an impartial third party.
(3)
Alternative dispute resolution director or ADR director--The director of the
agency office empowered by the Board to coordinate and oversee ADR procedures
and mediators.
(4) Contested
matter--A request for an order or other formal or informal authorization from
the Board that is opposed.
(5)
Mediator--The person appointed by the ADR office director to preside over ADR
proceedings regardless of which ADR method is used.
(6) Parties--The agencies, employees,
managers, supervisors or customers who are in conflict.
(7) Participants--The executive director, the
agency legal counsel, 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)
Referral of Contested Matter for Alternative Dispute Resolution Procedures. The
Board 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) and in the state's district courts.
(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 Board 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 Board's ADR director and to all time
limits imposed by the director, the judge, statute or regulation.
(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 Board 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 Board 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.
(2) SOAH mediators, employees of other
agencies who are mediators and private pro bono mediators may be assigned to
contested matters as needed.
(A) Each
mediator shall first have received 40 hours of Texas mediation training as
prescribed above.
(B) Each mediator
shall have some knowledge in the area of the contested matter.
(C) If the mediator is a SOAH judge, that
person will not also sit as the judge for the case if the contested matter goes
to a public hearing.
(f) Commencement of ADR.
(1) The Board 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,
at anytime once the dispute is deemed administratively complete and at least
one letter of appeal has been filed with Board.
(2) Upon unanimous motion of the parties and
the discretion of the judge, the provisions of this subsection may apply to
contested hearings. In such cases, it is within the discretion of the judge to
continue the hearing to allow use of the ADR procedures.
(g) Stipulations. 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 through the
entry of written stipulations. Such stipulations shall be forwarded or formally
presented to the judge assigned to conduct the hearing on the merits and shall
be included in the hearing record.
(h) Agreements. 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
participant 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) An oral communication
or written material used in or made a part of an ADR procedure is admissible or
discoverable independent of the procedure.
(4) If this section conflicts with other
legal requirements for disclosure of communications or materials, the issue of
confidentiality may be presented to the judge to determine, in camera, 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.
(5) The mediator may not, directly or
indirectly, communicate with the judge or any Board Member, of any aspect of
ADR negotiations made confidential by this section.
