(a) Except as provided in subsections (c) and (d) of this section, communications made by a participant during Alternative Dispute Resolution (ADR) concerning the subject matter of the ADR, are confidential, not subject to disclosure, and may not be used as evidence in any proceeding.     
      (b) Any notes or record made of or during ADR 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.     
      (c) An oral communication or written material used in or made a part of ADR is admissible or discoverable only if it is admissible or discoverable independent of ADR.     
      (d) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the judge to determine, in camera, 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.     
      (e) All communications in a mediation between parties and between each party and the mediator are confidential. No shared information will be given to the other party unless the party sharing the information explicitly gives the mediator permission to do so. Material provided to the mediator will not be provided to other parties and will not be filed or become part of the contested case record. All notes taken during mediation will be destroyed at the end of the process.     
     Source Note:        The provisions of this §157.38 adopted to be effective September 11, 2013, 38 TexReg 5877; amended to be effective May 26, 2022, 47 TexReg 3049