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, they must agree in writing
to a detailed description of the process prior to engaging in the
process.
(1) Mediation. (See Division 3 in this subchapter (relating
to Mediation of Contract Disputes)).
(2) Early evaluation by a neutral third-party.
(A) This is a confidential conference where the parties
and their counsel present the factual and legal bases of their claim
and receive a non-binding assessment by an experienced neutral with
subject-matter expertise or with significant experience in the substantive
area of law involved in the dispute.
(B) After summary presentations, the third-party neutral
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 him or her.
(C) This is a less complicated procedure than the mini-trial
described in paragraph (4) of this section. It may be appropriate
for only some issues in dispute, for example, 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; and
(v) The neutral 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 in 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
will be binding on them in later proceedings and, if the matter proceeds
to contested case hearing, entered into as a stipulation in the dispute,
or that it will 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 is cost effective;
(iii) The neutral's findings could narrow factual issues
for contested case hearing.
(4) Mini-trial.
(A) A mini-trial is generally a summary proceeding
before a representative of upper management from each party, with
authority to settle, and a third-party neutral selected by agreement
of the parties. A mini-trial is usually divided into three phases:
a limited information exchange phase, the actual 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 must be sufficient for each party to understand and appreciate
the key issues involved in the case. At a minimum, parties should
exchange key exhibits, introductory statements, and a summary of witness's
testimony.
(C) At the hearing, representatives of the parties
present a summary of the anticipated evidence and any legal issues
that must be decided before the case can be resolved. The third-party
neutral 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.
(D) Settlement discussions, facilitated by the third-party
neutral, take place after the hearing. The parties may ask the neutral
to formally evaluate the evidence and arguments and give 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 resolve 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 gathering;
(ii) The matter justifies the senior executive time
required to complete the process;
(iii) The issues involved 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.
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