(a) The parties may agree to use mediation as an option to resolve a contractor's claim and any counterclaim at the time they enter into the contract, and may include a provision in the contract to do so. The parties may mediate a contractor's claim and any counterclaim even without a provision in the contract 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 governmental officers or employees who are qualified as mediators under Civil Practice and Remedies Code, §154.052; private mediators; the State Office of Administrative Hearings (SOAH); the Center for Public Policy Dispute Resolution at The University of Texas School of Law; an alternative dispute resolution system that is created under Civil Practice and Remedies Code, Chapter 152, by another state or federal agency, or through a pooling agreement with several state agencies. Before naming a mediator source in a contract, the parties should contact the mediator source to ensure that the source is willing to serve in that capacity. In selecting a mediator, the parties should use the qualifications that are described in §1.378 of this title (relating to Qualifications and Immunity of the Mediator);
  (2) the time period for the mediation. The parties should allow enough time in which to make arrangements with the mediator and attending parties to schedule the mediation, to attend and participate in the mediation, and to complete any settlement approval procedures that are necessary to achieve final settlement. While this time frame can vary according to the needs and schedules of the mediator and the parties, the parties should allow adequate time for completion of the process;
  (3) the location of the mediation;
  (4) allocation of costs of the mediator;
  (5) the identification of representatives who will attend the mediation on behalf of the parties, if possible, by name or position; and
  (6) the settlement approval process, in the event that the parties reach agreement at the mediation.

Source Note: The provisions of this §1.377 adopted to be effective November 29, 2001, 26 TexReg 9631