(a) Request for Mediation. Any request for the use of mediation to resolve a dispute must be made in writing and submitted to the appropriate DR Coordinator or Administrator except in contested cases, where the request must be made to the administrative law judge. The request must state the nature of the dispute and the parties involved. In determining whether mediation is appropriate in a particular case, the following factors may be considered:
  (1) whether there are potential outcomes and solutions that are only available through mediation;
  (2) whether there is a reasonable likelihood that mediation will result in an agreement;
  (3) whether a candid and confidential discussion among the parties may help resolve the dispute;
  (4) whether negotiations between the parties have been unsuccessful and could be improved with the assistance of an impartial third party; or
  (5) whether the use of mediation may use less resources and take less time than other available procedures.
(b) Voluntary Use of Mediation. Mediation will be employed only if all parties to the dispute agree to its use. The only exceptions are that upper management in an HHS agency may require employees to participate in the management-directed mediation of a workplace conflict when no administrative complaint or grievance has been filed, and may require a supervisor to participate in the mediation of an administrative complaint filed by an employee under his supervision.
(c) Impartial Third Parties and Costs. For each case referred for mediation, the parties must mutually agree on an impartial third party. If the parties agree to use an impartial third party who charges for mediation services, then the costs for the impartial third party will be borne by the HHS agency except in contested cases in which the costs will be shared equally unless agreed to otherwise by the parties.
(d) Agreement. All parties participating in mediation are expected to participate in good faith and with the authority to negotiate and reach an agreement, subject to final approval by the appropriate final decision maker for the participating HHS agency. The decision to reach an agreement is voluntary for all parties. The resolution of a dispute reached as a result of mediation must be in writing, signed by all parties, and is enforceable in the same manner as any other written contract once it is finally approved by the appropriate HHS agency or authorized representative. Moreover, any such agreement may be subject to disclosure pursuant to Texas Government Code §2009.054(c).
(e) Confidentiality. The confidentiality of the communications, records, and conduct in a mediation will be as provided under Texas Government Code §2009.054.

Source Note: The provisions of this §394.6 adopted to be effective January 19, 2006, 31 TexReg 287