SECTION 5.4235. Mediation Process - Mediator Selection by Department

(a) Applicability. This section applies when the parties are unable to agree on a mediator and a party requests the department to select a mediator.

(b) Notice. The department will notify at least five mediators of possible inclusion on a mediator selection panel.

(c) Factors. When selecting a mediator for the mediator selection panel, the department may consider:

(1) the mediator's preferred geographic locations and types of claims;

(2) the proximity of the claimant and the mediator;

(3) the mediator's areas of training and expertise;

(4) the extent of the mediator's experience with mediation and with property damage claims;

(5) the subject of the dispute;

(6) the type of policy;

(7) the value and complexity of the claim;

(8) any conflicts of interest; and

(9) other factors relevant to the dispute.

(d) Mediator's response. Each mediator notified under subsection (b) of this section must respond to the department no later than the fifth day after receiving the notice. The mediator's response must state whether the mediator will accept or reject selection as mediator for the mediation; and must provide:

(1) an up-to-date resume, curriculum vitae, or brief biographical sketch of the mediator;

(2) a statement of whether the mediator is insured by the association;

(3) a description of the nature and extent of any prior knowledge the mediator has of the dispute;

(4) a description of any contacts with either party, including association employees, within the previous three years;

(5) a description of other known potential conflicts of interest. Potential conflicts of interest are listed in §5.4232 of this title (relating to Mediation Process - Mediator Qualifications and Conflicts of Interest); and

(6) any new disqualifying conflicts of interest listed in §5.4232 of this title.

(e) Mediator selection panel. From the information provided, the department will determine which mediators will be on the mediator selection panel. The department will send the mediator selection panel to each party, along with the information the listed mediators provided.

(f) Selection by agreement. The parties may select a mediator from the mediator selection panel. If the parties agree on a mediator, the association must inform the department no later than the third day after the agreement.

(g) Selection if the parties fail to agree. If the parties fail to agree on a mediator from the mediator selection panel:

(1) each party may object to mediators on the mediator selection panel under §5.4252(a)(1)(A) and (2)(A) of this title (relating to Objections); and

(2) the department will select a mediator from the mediators on the mediator selection panel that neither party has objected to.

(h) Notice. The department will notify the mediator selected under subsection (e) or (f) of this section and give the mediator the claim information provided under §5.4231 of this title (relating to Mediation Process).

Source Note: The provisions of this §5.4235 adopted to be effective February 14, 2013, 38 TexReg 653