Texas Administrative Code › Title 31 - NATURAL RESOURCES AND CONSERVATION › Part 1 - GENERAL LAND OFFICE › Chapter 20 - NATURAL RESOURCES DAMAGE ASSESSMENT › Subchapter D - ADMINISTRATION › Section 20.43 - Mediation

Current through Reg. 49, No. 28; July 12, 2024
(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.