(a) The parties may agree to use mediation as an option to
resolve a contractor's claim and any counterclaim at the time they enter into
the contract, and may include a provision in the contract to do so. The parties
may mediate a contractor's claim and any counterclaim even without a provision
in the contract to do so, if both parties agree.
(b) Any agreement to mediate should include consideration of
the following factors:
  (1) the source of the mediator. Potential sources of mediators
include governmental officers or employees who are qualified as mediators
under Civil Practice and Remedies Code, §154.052; private mediators;
the State Office of Administrative Hearings (SOAH); the Center for Public
Policy Dispute Resolution at The University of Texas School of Law; an alternative
dispute resolution system that is created under Civil Practice and Remedies
Code, Chapter 152, by another state or federal agency, or through a pooling
agreement with several state agencies. Before naming a mediator source in
a contract, the parties should contact the mediator source to ensure that
the source is willing to serve in that capacity. In selecting a mediator,
the parties should use the qualifications that are described in §1.378
of this title (relating to Qualifications and Immunity of the Mediator);

  (2) the time period for the mediation. The parties should allow
enough time in which to make arrangements with the mediator and attending
parties to schedule the mediation, to attend and participate in the mediation,
and to complete any settlement approval procedures that are necessary to achieve
final settlement. While this time frame can vary according to the needs and
schedules of the mediator and the parties, the parties should allow adequate
time for completion of the process;
  (3) the location of the mediation;
  (4) allocation of costs of the mediator;
  (5) the identification of representatives who will attend the
mediation on behalf of the parties, if possible, by name or position; and

  (6) the settlement approval process, in the event that the
parties reach agreement at the mediation.


Source Note: The provisions of this §1.377 adopted to be effective November 29, 2001, 26 TexReg 9631