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TITLE 37PUBLIC SAFETY AND CORRECTIONS
PART 6TEXAS DEPARTMENT OF CRIMINAL JUSTICE
CHAPTER 155REPORTS AND INFORMATION GATHERING
SUBCHAPTER CPROCEDURES FOR RESOLVING CONTRACT CLAIMS AND DISPUTES
RULE §155.31Establishing Procedures for Resolving Contract Claims and Disputes

  (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.


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

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