| (1) The mediation is subject to the provisions of the Governmental Dispute Resolution Act, Texas
Government Code Chapter 2009. For purposes of this subchapter, "mediation"
is assigned the meaning set forth in Texas Civil Practice and Remedies
Code §154.023.
(2) Parties may agree to use mediation as an option
to resolve a breach of contract claim at the time the parties 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.
(3) In selecting a mediator, the parties should use
the qualifications set forth in subsection (t) of this section. The
mediator shall be acceptable to both parties.
(t) Qualification and Immunity of the Mediator.
(1) The mediator shall possess the qualifications required
under Texas Civil Practice and Remedies Code §154.052, be subject
to the standards and duties prescribed by Texas Civil Practice and
Remedies Code §154.053 and have the qualified immunity prescribed
by Texas Civil Practice and Remedies Code §154.055, if applicable.
(2) The parties should decide whether, and to what
extent, knowledge of the subject matter and experience in mediation
would be advisable for the mediator.
(3) The parties should obtain from the prospective
mediator the ethical standards that shall govern the mediation.
(u) Confidentiality of Mediation and Final Mediated
Settlement Agreement.
(1) A mediation conducted under this section is confidential
in accordance with Texas Government Code §2009.054.
(2) The confidentiality of a final settlement agreement
to which the TDCJ is a signatory that is reached as a result of the
mediation is governed by Texas Government Code Chapter 552.
(v) Costs of Mediation. Unless the contractor and the
TDCJ agree otherwise in writing, each party shall be responsible for
its own costs incurred in connection with the mediation, including
costs of document reproduction for documents requested by such party,
attorney fees, consultant fees or expert fees. The costs of the mediation
process itself shall be divided equally between the parties.
(w) Mediated Settlement Agreement. Any settlement agreement
reached during the mediation shall be signed by the representatives
of the contractor and the TDCJ and describe any procedures required
to be followed by the parties in connection with final approval of
the agreement.
(x) Final Settlement Agreement.
(1) A final settlement agreement reached through mediation
that resolves an entire claim or any designated and severable portion
of a claim, shall be in writing and signed by representatives of the
contractor and the TDCJ who have authority to bind each respective
party.
(2) If the settlement agreement does not resolve all
issues raised by the claim and counterclaim, the agreement shall identify
the issues that are not resolved.
(3) A partial settlement does not waive a party's rights
under Texas Government Code Chapter 2260 as to the parts of the claim
that are not resolved.
(y) Assisted Negotiation Processes. Parties to a contract
dispute under Texas Government Code Chapter 2260 may agree, either
contractually or when a dispute arises, to use assisted negotiation
processes (alternative dispute resolution) in addition to negotiation
and mediation to resolve the dispute.
(z) Factors Supporting the Use of Assisted Negotiation
Processes. The following factors may help the parties decide whether
one or more assisted negotiation processes could help resolve the
dispute:
(1) the parties recognize the benefits of an agreed
resolution of the dispute;
(2) the expense of proceeding to contested case hearing
at the SOAH is substantial and might outweigh any potential recovery;
(3) the parties want an expedited resolution;
(4) the ultimate outcome is uncertain;
(5) there exists factual or technical complexity or
uncertainty that would benefit from the expertise of a third-party
expert for technical assistance or fact-finding;
(6) the parties are having substantial difficulty communicating
effectively;
(7) a mediator third-party could facilitate the parties'
realistic evaluation of the respective cases;
(8) there is an on-going relationship that exists between
the parties;
(9) the parties want to retain control over the outcome;
(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.
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