| (a) The parties may agree to use mediation to resolve a breach
of contract claim at the time they enter into the contract and include a contractual
provision to do so. The parties may mediate a breach of contract claim even
absent a contractual provision to do so if both parties agree.
(b) Any agreement to mediate should include consideration of
the following factors.
(1) The source of the mediator. Potential sources of mediators
include:
(A) governmental officers or employees who are qualified as
mediators under Texas Civil Practice and Remedies Code, §154.052;
(B) private mediators;
(C) SOAH;
(D) the Center for Public Policy Dispute Resolution at The
University of Texas School of Law;
(E) an alternative dispute resolution system created under
Texas Civil Practice and Remedies Code, Chapter 152; or
(F) another state or federal agency or through a pooling agreement
with several state agencies. Before naming a mediator source in a contract,
the parties shall contact the mediator source to be sure that it is willing
and able to serve in that capacity. In selecting a mediator, the parties shall
use the qualifications set forth in subsection §380.44 of this chapter
(relating to Qualifications and Immunity of Mediator).
(2) The time period for the mediation. The parties shall try
to allow enough time in which to make arrangements with the mediator to schedule
the mediation, to attend and participate in the mediation, and to complete
any settlement approval procedures necessary to achieve final settlement.
While this time frame can vary according to the needs and schedules of the
mediator and parties, it is important that the parties allow adequate time
for the process.
(3) The location of the mediation.
(4) Allocation of costs of the mediation.
(5) The identification of representatives who will attend the
mediation on behalf of the parties. If possible, each party shall supply the
other with the names and/or positions of the representatives they will send
to mediation at least 10 days before the first scheduled mediation session.
(6) The settlement approval process in the event the parties
reach agreement at the mediation.
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