SECTION 1.30. General Principles of Alternative Dispute Resolution

The following principles shall apply in Alternative Dispute Resolution (ADR) implemented for contested cases:

(1) Any resolution reached as a result of the ADR procedure should be through the voluntary agreement of the parties.

(2) ADR procedures shall be consistent with the Tex. Gov't Code, ch. 2009; Tex. Gov't Code, ch. 2008, Tex. Civil Practices and Remedies Code, ch. 154; and the Administrative Procedures Act, (the APA), Texas Gov't Code, ch. 2001.

(3) ADR procedures herein are intended to supplement and not to limit other dispute resolution procedures available for use by a governmental body.

(4) ADR processes shall not be applied in a manner that denies a person a right granted under state or federal law or under a local charter, ordinance, or other similar provision, including any right to an administrative or judicial hearing that is allowed or mandated by the Texas Education Code or by laws of more general application.

(5) The agency's ADR coordinator may appoint a governmental officer, an agency employee, a qualified mediator who is an employee of another governmental entity, or a qualified private mediator for an ADR procedure.

(6) Mediators:

(A) shall be qualified as required by Tex. Civil Practices and Remedies Code §154.052,

(B) are subject to the standards and duties described in Tex. Civil Practices and Remedies Code §154.053,

(C) have the qualified immunity described in the Tex. Civil Practices and Remedies Code §154.055,

(D) shall maintain confidentiality as described in Tex. Civil Practices and Remedies Code §154.073 and Tex. Gov't Code §2009.054, and

(E) shall not testify in proceedings relating to or arising out of the matter in dispute.

(7) The parties have the right to object to the person appointed to serve as the mediator.

(8) No one may dictate the terms of the agreement reached by the participants as long as the resolution is legal and complies with any rules set up for the process, including the rules set forth herein.

(9) Oral and written communications between the parties, and between the parties and the mediator, related to the ADR process are confidential and may not be disclosed unless all the parties consent to the disclosure, or upon issuance of an opinion from the Office of the Attorney General that the evidence is subject to the Open Records Act.. This includes any description of the conduct and demeanor of participants. Any notes or records made in an ADR procedure are confidential. The mediator may not, directly or indirectly, communicate with the judge or any commissioner, on any aspect of ADR negotiations made confidential by this section. If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be determined by a judge who is hearing a related matter 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.

(10) A final written agreement to which the Board is a signatory is subject to required disclosure, is excepted from disclosure, or is confidential, as provided by the TADR Act §154.073 and other laws, including Tex. Gov't Code, ch. 552, and Tex. Gov't Code §2009.054(b).

Source Note: The provisions of this §1.30 adopted to be effective February 26, 2004, 29 TexReg 1658