State Office of Administrative Hearings
State Office of Administrative Hearings
 

Mediation / Alternative Dispute Resolution (ADR)

Preparing for a SOAH Mediation

Take advantage.

Your upcoming mediation may be your best - and perhaps your last - opportunity to resolve your own dispute. When a dispute is submitted to a higher authority for resolution, for example, to an administrative law judge (“ALJ”) after a contested case hearing, the parties no longer control the outcome. Frequently, no one is wholly satisfied with the resolution imposed by the higher authority. In addition, the resources required to prepare and present a contested case, and pursue it through available appeals, are considerable. For these reasons, we encourage you to actively and fully participate in this opportunity to reach agreement. Remember, parties have more flexibility to craft creative solutions than an ALJ, who is bound by the statutes and regulations applicable to your case.

What to expect.

The mediation will usually begin with a joint meeting. The mediator will explain the process, each individual will be given an opportunity to make a short statement, and clarifying questions may be asked. Then, typically, the mediator will meet with each side separately. We call these separate meetings “caucuses.” In these caucuses, any confidential information you give the mediator will be kept confidential unless you specifically authorize the mediator to relay it to the other side. However, keep in mind that it is often helpful to identify and share your reasons for making certain requests and to explain not just what you want but also why you believe it is appropriate. The caucuses sometimes continue with the mediator carrying offers and counteroffers back and forth. One or more additional joint meetings may be held. If the parties reach an agreement, it is usually reduced to writing and signed by the individuals present before the end of the mediation. Because a state agency is involved, any written agreement may be a public document, depending on how other law (such as the Public Information Act aka Open Records Act) characterizes such an agreement.

Mediations are confidential.

Communications in mediation are confidential. This includes any offers and counteroffers made by the participants. The mediator will not communicate about the mediation with any decision-maker who handles this case, other than to report in writing that a mediation took place and whether it was successful. A mediator cannot be compelled to testify about anything that occurred during the mediation. If partial agreements are reached, such as a list of stipulated facts, they will be reported to the presiding ALJ in writing, as approved by the parties, and filed in the case. Comments made by the mediator during the process are also confidential. However, information shared in mediation that is otherwise subject to discovery does not become confidential simply because it is shared in mediation.

You are in control.

The power to settle a dispute through mediation lies entirely with the participants. The mediator cannot issue orders or force the parties to reach an agreement. The mediator’s role is to be neutral, to guide the process and to facilitate communications. The parties’ job is to work, in good faith, to resolve their dispute in a way that satisfies their most important needs. If parties’ most important needs cannot be met through a mediated agreement, the parties still have the opportunity for a contested case hearing.

Mediation is not simply positional bargaining.

When people negotiate about something, they usually stake out a position, argue for it, and make concessions to reach a compromise. Remember the last time you bought a car? There was a listed price; you offered something less; the salesman countered by coming off the listed price a fraction. You may have gone through this exercise more than once. But there were no clear principles guiding the participants as they moved from one position to another, except to try to get the best deal possible, probably meeting somewhere in the middle. Did you feel confident that you got a good deal?

In mediation, the mediator helps the parties focus on the interests that lie behind their respective positions. Why do they take a certain position? What concerns, public policies, and private needs cause them to take that position? If these interests can be openly identified, parties are more likely to craft creative solutions that satisfy everyone’s interests. For example, an agency prosecuting a disciplinary case against a professional licensee is usually concerned with protecting the public and deterring future bad acts. The licensee is usually interested in protecting his or her professional reputation and ability to earn a living. Through mediation, the parties often can agree to a solution that fulfills all of these interests.

Know the case.

Mediations are successful when parties understand the issues and can realistically assess their options. What evidence do you have to prove your case? How objective is it? If your case turns on the credibility of witnesses, it is usually harder to predict the outcome. If you have documentary evidence, case law, or other authority that supports your position, bring copies to the mediation. Analyze the other side’s case. Know their strong and weak points. Keep in mind, however, that your goal at mediation is not to convince the other side that you are “right,” but rather, to try to reach an agreement that protects your most important needs.

Think “outside the box.”

Be creative. Think about what you really need to accomplish to resolve the dispute. Carefully consider the interests of the various parties and try to formulate multiple options that will meet those needs. In disciplinary cases against professional licensees, for example, many agencies originally had only one enforcement tool, revocation of the license to practice. Now those agencies generally have flexibility as to the kinds of sanctions they may impose. Be careful, however, not to expect the mediation to resolve all issues in your relationship. Keep your focus on the SOAH case. Be realistic. Successful mediation involves compromise. You are unlikely to get everything you would like. Try to stay focused on what you really need.

Bring authority to settle.

Bring to the mediation only those people who have a need to participate, i.e., people directly involved in the dispute. But be sure to have full settlement authority in the room. If absolutely necessary, you may confer with others by telephone, but there are distinct disadvantages to mediating in these circumstances. Problems may arise because persons outside the mediation have not experienced the dynamics of the conversations in the room. Without the benefit of that experience, they may overestimate the strength of their case and underestimate the merits of the other party’s circumstances. At worst, such a turn of events may lead to an impasse in the mediation after the participants have spent many hours working to forge an agreement acceptable to everyone in the room.

Facilitative compared to evaluative mediation styles.

Mediation at SOAH is generally a collaborative process. We facilitate communication and clarify issues, help parties assess their options, and memorialize any agreements the parties reach. However, in caucuses, mediators sometimes help parties analyze the strengths and weaknesses of their cases. If the mediator evaluates some aspect of your case, remember that any opinion expressed by the mediator is just that - one person’s opinion. That opinion is based on limited information, such as summaries of anticipated evidence. Discovery may not have been completed yet. The mediator has not had the opportunity to assess witness credibility, nor has the mediator done independent legal research. In spite of these limitations, the view of a mediator (who in other circumstances hears cases as an ALJ) often gives parties a useful glimpse of how their case may be perceived by a neutral third party. Any views expressed by a mediator under these circumstances are confidential, do not constitute legal advice, and are not predictions as to how the presiding ALJ will view the issues. Giving such an evaluation is discretionary with the mediator unless the parties have requested, and the mediator has agreed, before the mediation, to provide such an evaluation.