SECTION 131.113. Mediation and Alternative Dispute Resolution

It is the Board's policy to encourage the resolution and early settlement of all disputed matters, internal and external, through voluntary settlement procedures.

(1) The Executive Director shall designate a board employee as the board's Alternative Dispute Resolution Director to perform the following functions:

(A) maintain necessary agency records of alternative dispute resolution procedures while maintaining the confidentiality of participants;

(B) establish a method for the appointment of impartial third party mediators, moderators or arbitrators for alternative dispute resolution proceedings;

(C) provide information about available alternative dispute resolution processes to agency employees, potential users, and users of the alternative dispute resolution program;

(D) arrange training or education necessary to implement alternative dispute resolution processes; and

(E) establish a system to evaluate the alternative dispute resolution program and mediators.

(2) The Board, a committee of the Board, a respondent in a disciplinary matter pending before the board pursuant to §139.31 of this title (relating to Enforcement Actions for Violations of the Act), the Executive Director of the Board or a board employee engaged in a dispute with the Executive Director may request that a contested matter be submitted for alternative dispute resolution through mediation as described in §154.023 of the Texas Civil Practice and Remedies Code, moderated settlement conference as described in §154.025 of the Texas Civil Practice and Remedies Code, and non-binding arbitration as described in §154.027 of the Texas Civil Practice and Remedies Code by making a written request for alternative dispute resolution that states the type of alternative dispute resolution requested and sets forth the issues to be submitted for alternative dispute resolution. A respondent in a disciplinary proceeding may not request mediation until a recommendation regarding that disciplinary matter has been made and a Consent Order has been offered in accordance with Board Rule §139.19 (relating to Final Resolution of Complaint). The request must be delivered to the Alternative Dispute Resolution Director at the board's office.

(3) The party who requests alternative dispute resolution shall pay the cost of the impartial third party mediator, moderators or arbitrators and shall otherwise bear their own costs of alternative dispute resolution.

(4) Any resolution reached as a result of an alternative dispute resolution procedure is intended to be through the voluntary agreement of all of the parties. The resolution of a contested matter reached as a result of an alternative dispute resolution procedure must be in writing, signed by all of the parties, and is enforceable in the same manner as any other written contract; provided however, that any signed resolution that purports to bind the board must be ratified by the board and may be made public depending upon the terms of the agreed resolution.

(5) A communication relating to the subject matter made by a party in an alternative dispute resolution procedure is confidential, is not subject to disclosure, and may not be used as evidence in any further proceeding. Any notes or record made of an alternative dispute resolution procedure are confidential, and parties, including impartial third party mediators, moderators, or arbitrators 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 or under consideration. An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable only if it is admissible or discoverable independent of the procedure. If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to a judge or administrative law judge in Travis County, Texas 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.

Source Note: The provisions of this §131.113 adopted to be effective March 15, 2018, 43 TexReg 1438