(a) Prerequisite to judicial review. No state trustee or responsible person may invoke the jurisdiction of any court over a disputed natural resource damage assessment claim unless and until the assessment claim has been referred to mediation pursuant to this section.

(b) Referral to mediation and designation. The mediation process required by OSPRA, §40.107(c)(7)(F), shall be conducted pursuant to this subsection.

(1) Initiation of mediation. The responsible person shall advise the trustees, by giving written notice to the commissioner within 20 days of the receipt of the assessment claim, whether the responsible person is disputing the claim. If the responsible person is disputing the claim, then the claim is automatically referred for mediation pursuant to this section. The state trustees may initiate mediation by giving written notice to the commissioner within 20 days after presentation of the claim to the responsible person.

(2) Commissioner's responsibilities. The commissioner, within ten days of receipt of the written notice, shall notify all parties and the Center for Public Policy Dispute Resolution (Center) of the referral to mediation. If the Center ceases to exist or is unable to comply with the terms of this section for any reason, the American Arbitration Association shall be substituted for the Center. Within ten days from the receipt of the notice of the mediation referral, the Center shall supply the state trustees and the responsible persons with a list of at least five mediators.

(3) State trustee and responsible person responsibilities. Within five days from receipt of the list of mediators, the state trustees collectively shall designate one mediator and the responsible person or persons shall designate one mediator from the list supplied by the Center. Both mediator designations shall be made by giving written notice to the commissioner and the Center. In the alternative, either the state trustees collectively or the responsible person or persons may propose a list of at least five other mediators not on the list supplied by the Center.

(4) Designation of mediator by the Center. If five days have lapsed and either the state trustees collectively or the responsible persons collectively cannot agree among themselves on the designation of a mediator, or the state trustees or the responsible persons fail to timely designate the mediator, then the Center shall make the designation. If the state trustees and the responsible person agree on a single person to serve as mediator, then that person shall be the only mediator.

(5) Timely designation of the mediator. The mediator shall be designated within 45 days of the receipt by the responsible person of the natural resource damage assessment claim from the state trustees.

(6) Qualification of mediator. Any designated mediator must have completed a minimum of 40 classroom hours of mediation training in a course conducted by an alternative dispute resolution system or other dispute resolution organization, as required in Texas Civil Practice and Remedies Code, §154.052(a). This requirement may be waived as to any mediator only with the unanimous consent of all state trustees and all responsible persons. A mediator conducting a mediation under this section shall act as an impartial third party and be subject to the standards and duties set forth in Texas Civil Practice and Remedies Code, §154.053.

(7) Mediator's disclosure. Before appointment of the mediator is final, any prospective mediator shall submit complete disclosure statements for the approval of all parties, which statements shall include a resume of experience, together with a declaration describing all past, present and anticipated future relationships related to the subject matter of the dispute and with all parties and their agents or representatives involved in the dispute.

(8) Mediator. After appointment as a mediator and thereafter throughout the mediation process, the mediator shall not acquire any ownership or any other financial interest in, nor shall be employed by or act as a consultant to, any party to the dispute or the agent or representative of any party to the dispute, and during this period shall not engage in any discussion or make any agreement with any party to the dispute or the agent or representative of any party to the dispute, regarding the acquisition of any ownership or financial interest, employment, or consulting activity after the mediation process is completed. Provided, however, that the parties to the mediation, by unanimous consent, may waive these restrictions upon full disclosure of the facts by the mediator.

(c) Conduct of the mediation. All communications in the mediation shall be confidential and privileged as generally described in Texas Civil Practice and Remedies Code, §154.073. The mediation shall terminate at the conclusion of the period that the parties agree to mediate, including any agreed extensions, but not less than one full business day, or upon declaration by any mediator of an impasse. The mediation shall be scheduled so as to conclude within 135 days after the responsible person receives the natural resource damage assessment claim. Within three days following the termination or conclusion of a mediation, the mediator(s) shall provide the commissioner with notice of the completion of the mediation process.

(d) Location of mediation. The mediation shall take place in Austin, Texas, unless the state trustees and the responsible person agree otherwise.

(e) Authority to negotiate. All participants in the mediation process who represent either a state trustee or a responsible person must be vested with the authority to negotiate a mediated settlement agreement on behalf of their respective state trustee or responsible person and to recommend to the state trustee or responsible person approval of any mediated settlement agreement.

Source Note: The provisions of this §20.43 adopted to be effective October 19, 1994, 19 TexReg 7911; amended to be effective October 21, 2010, 35 TexReg 9318