(10) there is a need to develop creative alternatives
to resolve the dispute;
(11) there is a need for flexibility in shaping relief;
(12) a party has an unrealistic view of the merits
of its case; or
(13) the parties, or aggrieved persons, need to hear
an evaluation of the case from someone other than their lawyers.
(aa) Use of Assisted Negotiation Processes. Any of
the following methods, or a combination of these methods, or any assisted
negotiation process agreed to by the parties, may be used in seeking
resolution of disputes or other controversy arising under Texas Government
Code Chapter 2260. If the parties agree to use an assisted negotiation
procedure, the parties should agree in writing to a detailed description
of the process prior to engaging in the process.
(1) Mediation.
(2) Early evaluation by a neutral third-party.
(A) This is a confidential conference wherein the parties
and counsel present the factual and legal bases of their claims and
receive a non-binding assessment by an experienced neutral third-party
with subject-matter expertise or with significant experience in the
substantive area of law involved in the dispute.
(B) After summary presentation, the neutral third-party
identifies areas of agreement for possible stipulations, assesses
the strengths and weaknesses of each party's position, and estimates,
if possible, the likelihood of liability and the dollar range of damages
that appear reasonable to the neutral third-party.
(C) This less complicated procedure may be appropriate
only for some issues in dispute where there are clear-cut differences
over the appropriate amount of damages. This process may be particularly
helpful when:
(i) the parties agree that the dispute can be settled;
(ii) the dispute involves specific legal issues;
(iii) the parties disagree on the amount of damages;
(iv) the opposition has an unrealistic view of the
dispute; or
(v) the neutral third-party is a recognized expert
in the subject area or area of law involved.
(3) Neutral fact-finding by an expert.
(A) In this process, a neutral third-party expert studies
a particular issue and reports findings on that issue. The process
usually occurs after most discovery concerning the dispute has been
completed and the significance of particular technical or scientific
issues is apparent.
(B) The parties may agree in writing that the fact-finding
shall be binding in later proceedings, and entered into as a stipulation
in the dispute if the matter proceeds to contested case hearing, or
that it shall be advisory in nature, to be used only in further settlement
discussions between representatives of the parties. This process may
be particularly helpful when:
(i) factual issues requiring expert testimony may be
dispositive of liability or damage issues;
(ii) the use of a neutral third-party is cost effective;
or
(iii) the neutral third-party's findings could narrow
factual issues for contested case hearing.
(4) Mini-trial.
(A) A mini-trial is a summary proceeding before a representative
of upper management from each party who has authority to settle and
a neutral third-party selected by agreement of the parties. A mini-trial
is usually divided into a limited information-exchange phase, the
hearing, and post-hearing settlement discussions. No written or oral
statement made in the proceeding may be used as evidence or an admission
in any other proceeding.
(B) The information-exchange stage should be brief,
but it shall be sufficient for each party to understand and appreciate
the key issues. At a minimum, the parties should exchange key exhibits,
introductory statements, and a summary of witnesses' testimony.
(C) At the hearing, representatives of the parties
present a summary of the anticipated evidence and any legal issues
that shall be decided before the case can be resolved. The neutral
third-party presides over the presentation and may question witnesses
and counsel, as well as comment on the arguments and evidence. Each
party may agree to put on abbreviated direct and cross-examination
testimony. The hearing generally takes no longer than one to two days.
(D) Settlement discussions, facilitated by the neutral
third-party, take place after the hearing. The parties may ask the
neutral third-party to formally evaluate the evidence and arguments
and provide an advisory opinion as to the issues in the case. If the
parties cannot reach an agreed resolution to the dispute, either side
may declare the mini-trial terminated and proceed to a resolution
of the dispute by other means.
(E) Mini-trials may be appropriate when:
(i) the dispute is at a stage where substantial costs
can be saved by a resolution based on limited information gathered;
(ii) the matter justifies the senior executive's time
required to complete the process;
(iii) the issues include highly technical mixed questions
of law and fact;
(iv) the matter involves trade secrets or other confidential
or proprietary information; or
(v) the parties seek to narrow the large number of
issues in dispute.
(bb) Approval. Any settlement reached pursuant to this
section may require the approval of the TBCJ, the attorney general
of Texas, the governor of Texas, or the Texas Legislature, as required
by TBCJ policy, statutes, and rules of the state of Texas, and the General Appropriations Act.
(cc) Intent. It is the intent of the TDCJ to comply
with the provisions of Texas Government Code Chapter 2260. To the
extent that any term or provision of this section is in conflict with
Chapter 2260, the terms and provisions of Chapter 2260 shall prevail.
(dd) Disclaimer. The TDCJ and the TBCJ do not waive
sovereign immunity from suit or liability due to the establishment
of this section. The TDCJ and the TBCJ consider the procedure described
in Chapter 2260 and this section to be the exclusive means of resolving
breach of contract claims against the TDCJ.
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Source Note: The provisions of this §155.31 adopted to be effective June 11, 2000, 25 TexReg 5378; amended to be effective December 9, 2001, 26 TexReg 9914; amended to be effective October 7, 2007, 32 TexReg 6785; amended to be effective May 10, 2012, 37 TexReg 3420 |