(a) Policy. The Board encourages the resolution and early settlement of all contested matters through voluntary settlement procedures. Board employees shall implement this policy.
(b) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
  (1) ADR--Alternative Dispute Resolution.
  (2) Alternative dispute resolution procedure or ADR procedure--A nonjudicial and informally conducted forum for the voluntary settlement of contested matter through intervention of an impartial third party.
  (3) Alternative dispute resolution director or ADR director--The director of the agency office empowered by the Board to coordinate and oversee ADR procedures and mediators.
  (4) Contested matter--A request for an order or other formal or informal authorization from the Board that is opposed.
  (5) Mediator--The person appointed by the ADR office director to preside over ADR proceedings regardless of which ADR method is used.
  (6) Parties--The agencies, employees, managers, supervisors or customers who are in conflict.
  (7) Participants--The executive director, the agency legal counsel, the complainant, the respondent, the person who timely filed hearing requests which gave rise to the dispute or if parties have been named, the named parties.
  (8) Private mediator--A person in the profession of mediation who is not a Texas state employee and who has met all the qualifications prescribed by Texas law for mediators.
(c) Referral of Contested Matter for Alternative Dispute Resolution Procedures. The Board or the ADR director may seek to resolve a contested matter through any ADR procedure. Such procedures may include, but are not limited to, those applied to resolve matters pending at the State Office of Administrative Hearing (SOAH) and in the state's district courts.
(d) Appointment of Mediator.
  (1) For each matter referred for ADR procedures, the ADR director shall assign a mediator, unless the participants agree upon the use of a private mediator. The ADR director may assign a substitute or additional mediator to a proceeding as the ADR director deems necessary.
  (2) A private mediator may be hired for Board ADR procedures provided that:
    (A) the participants unanimously agree to use a private mediator;
    (B) the participants unanimously agree to the selection of the person to serve as the mediator;
    (C) the mediator agrees to be subject to the direction of the Board's ADR director and to all time limits imposed by the director, the judge, statute or regulation.
  (3) If a private mediator is used, the costs for the services of the mediator shall be apportioned equally among the participants, unless otherwise agreed upon by the participants, and shall be paid directly to the mediator. In no event, however, shall any such costs be apportioned to a governmental subdivision or entity that is a statutory party to the hearing.
  (4) All mediators in Board mediation proceedings shall subscribe to the ethical guidelines for mediators adopted by the ADR Section of the State Bar of Texas.
(e) Qualifications of Mediators.
  (1) The Board shall establish a list of mediators to resolve contested matters through ADR procedures.
    (A) To the extent practicable, each mediator shall receive 40 hours of formal training in ADR procedures through programs approved by the ADR director.
    (B) Other individuals may serve as mediators on an ad hoc basis in light of particular skills or experience which will facilitate the resolution of individual contested matters.
  (2) SOAH mediators, employees of other agencies who are mediators and private pro bono mediators may be assigned to contested matters as needed.
    (A) Each mediator shall first have received 40 hours of Texas mediation training as prescribed above.
    (B) Each mediator shall have some knowledge in the area of the contested matter.
    (C) If the mediator is a SOAH judge, that person will not also sit as the judge for the case if the contested matter goes to a public hearing.
(f) Commencement of ADR.
  (1) The Board encourages the resolution of disputes at any time, whether under this policy and procedure or not. ADR procedures under this policy may begin, at the discretion of the ADR director, at anytime once the dispute is deemed administratively complete and at least one letter of appeal has been filed with Board.
  (2) Upon unanimous motion of the parties and the discretion of the judge, the provisions of this subsection may apply to contested hearings. In such cases, it is within the discretion of the judge to continue the hearing to allow use of the ADR procedures.
(g) Stipulations. When ADR procedures do not result in the full settlement of a contested matter, the participants, in conjunction with the mediator, shall limit the contested issues through the entry of written stipulations. Such stipulations shall be forwarded or formally presented to the judge assigned to conduct the hearing on the merits and shall be included in the hearing record.
(h) Agreements. Agreements of the participants reached as a result of ADR must be in writing and are enforceable in the same manner as any other written contract.
(i) Confidentiality of Communications in Alternative Dispute Resolution Procedures.
  (1) Except as provided in subsections (3) and (4) of this section, a communication relating to the subject matter made by the participant in an ADR procedure whether before or after the institution of formal proceedings, is confidential, is not subject to disclosure, and may not be used as evidence in any further proceedings.
  (2) Any notes or record made of an ADR procedure 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.
  (3) An oral communication or written material used in or made a part of an ADR procedure is admissible or discoverable independent of the procedure.
  (4) 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.
  (5) The mediator may not, directly or indirectly, communicate with the judge or any Board Member, of any aspect of ADR negotiations made confidential by this section.

Source Note: The provisions of this §277.9 adopted to be effective December 6, 2005, 30 TexReg 8097