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FAQ - Mediation process
OAH Begins Offering Mediation Services.
When citizens interact with state agencies, disputes can arise. Resolution of the disputes often generates administrative litigation. Litigation, however, is not the only method of resolving administrative disputes. In the words of bestselling author Max Lucado, “Conflict is inevitable but combat is optional.”
In his 2001 article extoling the virtues of settlement agreements, Judge Robert Worth poignantly noted that “both civil judges and administrative law judges welcome the opportunity to allow the parties to effectively take the pen out of their [the judges’] hands and to let them decide their own respective destinies by mutual understandings embodied in [a settlement] agreement.” Worth, R. “Settlement Agreements – Taking the Pen Out of the Judge’s Hand,” OAH newsletter, Vol. 19, April 2001.
In the 14 years since Judge Worth wrote his article, alternative dispute resolution (also known by the acronym “ADR”) has come into its own. It provides parties with the tools to resolve their disputes without resort to frequently costly, time consuming and emotionally draining litigation. One form of alternative dispute resolution is mediation. Almost all central panel states (Arizona is a central panel state) now offer some form of mediation assistance to litigants.
What is mediation? Simply stated, mediation is a proven methodology of assisting parties in a dispute to come to a mutually agreeable resolution without going to hearing, saving all involved time, money and anxiety. It is completely voluntary. During mediation, a trained mediator helps the parties to understand their respective positions and interests in the dispute, see where their interests align or may be aligned, and permit the parties to find common ground so they can resolve the fight. The mediator will not force settlement on anyone. If the parties do come to resolution, it will be a resolution that they arrive at.
Mediation is a great tool for preserving ongoing relationships that can otherwise be torn apart through acrimonious litigation (e.g., mobile home landlord/tenant relationships, general contractor/subcontractor payment disputes). Moreover, mediation is a great resource saver for the agencies charged with resolving the disputes. Resolving cases early through mediation frees up time that agency personnel must employ to process cases, frees up dockets, and frees up judges’ time so that other cases which must go to hearing can be more expeditiously processed.
Mediation is completely confidential and that confidentiality is guaranteed by statute. If the parties are unable to come to a resolution, all information provided to the mediator remains confidential and cannot be used at any hearing or in any other litigation. The mediator will not share information he or she receives about a party’s position--not even with the other side in the mediation-- unless the party providing the information gives the mediator permission to do so. Nothing the mediator does or says in an unsuccessful mediation affects either party’s chances in a future hearing.
The utility of mediation can be seen by contrasting it to the traditional litigation process. Litigation is by nature an unwieldy form of dispute resolution. Judges are constrained by the limits of their jurisdiction to deal only with the violations noted in a citation or notice of hearing. For example, in the context of a Registrar of Contractors (ROC) case, if a citation alleges only a workmanship violation, a judge hearing the case has no authority to consider whether the contractor should have performed corrective work or should pay civil penalties. Also, litigation can be a piecemeal process. To again borrow from the ROC arena, a judge must first find a violation and recommend some discipline of the contractor’s license. If the Registrar accepts that Decision, the homeowner must then file a separate claim with the Residential Recovery Fund before he or she can recover actual money damages resulting from the workmanship issue. In contrast, mediation provides participants with the opportunity to resolve all of their differences in one setting at one time. Mediation can provide complete resolution for the parties and the ability to move on.
If parties to a case wish to obtain mediation assistance, they should notify the OAH as soon as practicable (usually no later than 10 days) after receiving the Notice of Hearing in their case. Since mediation is completely voluntary, the parties must jointly agree to mediation before mediation assistance can be provided. Upon receiving a joint request for mediation, OAH will immediately assign a mediator to set up a mediation conference. These conferences will be held in person, typically at the OAH offices in Phoenix. The mediator will arrange a mutually convenient time and date for the mediation.
If the parties are able to reach an agreement, the mediator can assist them in drafting a settlement agreement. If the parties are not successful in settling the matter, the case will remain set for hearing so that the litigation can proceed in a timely manner. And remember, any information that the mediator receives in the mediation remains completely confidential. Information received in the mediation is never shared with the administrative law judge presiding over the litigation or anyone else.
So, while conflict is inevitable, combat is not. Parties coming to the hearing process at OAH should keep in mind that the option of mediation is available. OAH stands ready to provide not only a forum for fair, impartial and independent hearings but also to assist parties to resolve their disputes without litigation
By Interim Director Greg Hanchett and Administrative Law Judge Suzanne Marwil