Different licensing boards and agencies in Texas oversee disciplinary complaints using varying procedures. When many of these agencies cannot resolve these complaints and wish to pursue formal disciplinary action, they ultimately refer their cases to the State Office of Administrative Hearings (SOAH). SOAH is then responsible for assigning an administrative law judge (ALJ) to the case and scheduling the case for an administrative hearing. However, parties to a case before SOAH also may engage in alternative dispute resolution (ADR) in some cases. A professional license defense lawyer can represent in ADR proceedings at SOAH and an administrative hearing if ADR should fail to result in an agreement.
SOAH and Mediation
SOAH has approximately 30 ALJs who also are trained as mediators. When a case is transferred to SOAH for an administrative hearing in a disciplinary case, the parties can opt to take part in mediation. Mediation is often the last chance for parties to control the outcome of a case and reach a voluntary resolution. However, once the case goes to an administrative hearing, the parties can no longer control the outcome of the case. At that point, third parties will impose the outcome on the parties, which may be less desirable to both parties than a resolution that they reach themselves.
Mediation is a confidential form of ADR that helps parties resolve their dispute or reach an agreement without going to an administrative hearing. The SOAH rules for mediation explicitly say that parties should not use mediation as a discovery or delay tactic and that scheduling mediation will not stay as an existing procedural schedule unless the ALJ orders otherwise.
Under 1 Tex. Admin. Code § 155.351, any party can request mediation during a prehearing conference or hearing based on a good faith belief that the parties can resolve all or some of their dispute through mediation. An agency also may refer a case for mediation only, and a judge may refer a case to mediation without the agreement of all parties. A party also may object to a request for mediation.
Evaluating a Case for Mediation
If a party requests or an ALJ orders, SOAH may assign a mediation evaluator to a case. The evaluator can conduct confidential ex-parte communications with the parties during the evaluation. Following the evaluation, the evaluator makes a written recommendation as to whether the case is proper for mediation at the time and serves that recommendation on all parties.
Confidentiality of Mediation
Mediation is confidential in that all communications made during mediation are confidential and subject to the provisions of Tex. Gov’t. Code § 2009.054 and TRE 408. The mediator assigned to the case may conduct confidential ex-parte communications with the parties throughout the mediation. The mediator does not have to testify about communications or documents produced during the mediation. The only disclosures that the mediator must make to the presiding judge of SOAH include:
- Whether the parties attended the mediation;
- Whether the matter was settled; and
- Any other stipulations or matters the parties agreed to be reported.
The Mediation Process
The mediator’s role is to act neutrally, guide the mediation process, and facilitate communication between the parties. Before the mediation, the mediator may schedule confidential pre-mediation telephone calls with each party individually. The mediator typically starts with a joint meeting or session on the day of the scheduled mediation. The mediator will explain the mediation process, and each party will give a short statement. The parties and mediator also can ask any clarifying questions of one another.
The mediator then will meet with each side separately, in individual meetings or caucuses. Confidential information that parties divulge during caucuses stays confidential unless they specifically authorize the mediator to release it to the other party. The mediator can carry offers and counteroffers between the two parties through a series of caucuses.
Agreements Reaching During Mediation
If the parties reach any agreements during mediation, they shall reduce the agreements to writing and sign them before the end of the mediation, if possible. However, mediation does not prohibit the parties from reaching agreements outside mediation. Since all SOAH mediations involve a state agency, the agreement may be subject to the Texas Public Information Act.
If Mediation Fails
If mediation is unsuccessful in whole or part, the parties still have a right to a hearing before an ALJ. However, the ALJ that SOAH assigns to conduct the administrative hearing will be different than the ALJ who conducted the mediation.
Safeguard Your License by Seeking Legal Assistance Today
Receiving notice of a complaint against your occupational or professional license can disrupt your everyday life and career. However, even if the allegations against you are untrue, you still should take the matter seriously. Disciplinary action can result in a permanent mark on your records that negatively affects your career and future. As a result, you should not hesitate to get the legal help you need in this situation, especially if your case proceeds to SOAH for ADR or an administrative hearing. Contact a Texas license defense attorney immediately when you receive notice of a complaint against your license.