| (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.
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