Regulatory Disputes Resolved Through Government Mediation
Jennifer M. Gartlan
Jennifer M. Gartlan, an associate with Thompson Hine LLP, in Washington, D.C., can be contacted at
Attorneys often refer clients to private mediators to resolve commercial and legal disputes. One frequently overlooked mediation tool is federal administrative programs that offer subject-matter-specific services at little or no cost to parties. Like their private-sector counterparts, government mediators are capable of addressing commercial and legal remedies that are otherwise unavailable through administrative litigation. The following includes practical suggestions on government mediation programs in regulatory disputes.
Neutrality and Confidentiality
Parties considering government mediation often worry that information that is shared with a government mediator will be passed on to the forum agency. The federal Alternative Dispute Resolution Act imposes confidentiality requirements on government neutrals, which prevents such disclosure. A government neutral will not break confidentiality unless a court orders disclosure based upon manifest injustice, violation of law, or prevention of harm to public health and safety. Government programs have interpreted “violation of law” as a violation of criminal law. This means that information regarding civil regulatory violations will be protected by confidentiality.
Parties may fear that a potential regulatory violation will negatively impact a mediator’s perception of the case. It is important to remember that the mediator is a “neutral,” meaning that he or she is barred from siding with either party. If a party has questions regarding a mediator’s actual neutrality, counsel should discuss such concerns directly with the mediator. In the event that a genuine conflict between a party and mediator cannot be resolved, the party may, and should, request a different neutral.
Timing Considerations
When should parties request mediation? Some agencies will order parties into mediation as part of the litigation process; other agencies may require parties to seek mediation services within a specified period. Forum agencies may dictate timing if litigation has been filed.
That said, parties are not precluded from seeking mediation before litigation is filed. In many instances, it is advisable to be proactive and seek mediation prior to filing administrative litigation as it may be possible to solve the dispute in real time, which allows for specific performance rather than waiting for uncertain monetary damages. Early mediation is also beneficial for smaller parties as the mediation process saves time and money and can balance inequality between larger and smaller parties, thus permitting more meaningful negotiation. Finally, in the event that mediation fails, the parties still have the option of filing litigation. From a tactical standpoint, the party requesting mediation may present itself in a more attractive light to administrative law judges, who are required to look at past attempts at dispute resolution.
Convening Mediation
After submitting a request to an agency or receiving a mediation order from an administrative law judge, a neutral is appointed. Agencies may provide parties with a list of mediators or may appoint in-house mediators. In either case, parties should obtain as much information as possible regarding selected mediators’ style and methodology. Some government mediators use an evaluative approach, where the mediator issues an opinion regarding the merits of the case as a starting ground for mediation. While some parties find this approach helpful, it is risky and does not explore all the underlying issues and needs. In contrast, facilitative mediators do not express an opinion regarding the merits; they work with both parties to discuss and evaluate the issues, merits, and concerns of both parties.
Attorneys should involve clients in all preliminary discussions so they may ask questions and gain comfort with the process.
After speaking with the mediator, attorneys and clients should work together to prepare for the mediation session. Attorneys should expect the mediator to ask the client to speak about his thoughts and concerns regarding the dispute. Therefore, attorneys should work with clients on opening statements and explain the nuances of disclosure within the context of mediation.
In addition to these basics, attorneys and clients should have meaningful dialogue regarding clients’ goals and aspirations, countered with knowledge of the opposing party’s positions. It is also helpful for attorneys and clients to generate questions for opposing parties as mediation is a facilitated dialogue and information exchange is essential within the process. It is equally important to prepare a proposed alternative course of action in the event that mediation does not achieve the desired results.
One benefit of mediation is the ability of both parties to voice their opinions in an unbiased, non-court forum. After allowing such venting, the mediator will then refocus the parties on working cooperatively to discuss resolution. This process can eliminate built-up client frustrations and allow constructive movement toward a reasonable compromise.
Similarly, an effective technique is for the mediator to allow the clients to express emotions, wants, and needs surrounding the dispute, while the attorneys and mediator work together to create “reality checks” for the parties. The reality-check process can include everything from the ramifications of failure to resolve the dispute to the costs and benefits of proposed solutions.
Attorneys have a pivotal role in federal regulatory mediation that must include zealous advocacy for the client and the mediation process. In some instances intelligent mediation will save a client from not only extensive litigation costs with a private party, but also future adverse agency action.