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Early Case Evaluation : Q & A : Mediation : Mini-Hearing : Mediated Settlement Conference

North Dakota Century Code Section 28-32-05.1 makes it clear that agencies have the authority to use alternative dispute resolution to resolve appropriate administrative disputes that may otherwise result in adjudicative proceedings (hearings). The informal disposition of administrative disputes is also specifically authorized in some agency statutes.

Yes, agencies can request that OAH conduct mediation in matters that already may be, or will ultimately end up, if not resolved, in an adjudicative proceeding. They can also request that OAH mediate dispute that are not expected to rise to the level of an adjudicative proceeding. These may be handled in generally the same way. For matters already in adjudicative proceedings, a mediated settlement conference may be appropriate.

• Employee and higher education faculty grievance disputes.
• Disciplinary actions against licenses.
• Permit or certificate requests which are protested.
• Enforcement actions.
• Rule-making and/or policy-making involving many difference interests.
• Appeals requiring agency decisionmaking under state or federal law.

It depends. In mediation, you are in complete control over whether you enter into an agreement. However, if you enter into an agreement that is later determined to be a contract, those agreements are sometimes enforced in court. It is very important for you, as a participant in a mediation, to have a clear understanding about the meaning of any agreements reached, and a belief that you (and the other party) can and will keep those agreements.

Sometimes. There is a great deal of confidentiality associated with certain ADR processes - especially mediation or other processes seeking settlement in the contest of an adjudicating proceeding. Communications during or related to the ADR proceeding are confidential. Agreements reached between private parties are usually also confidential unless the parties agree otherwise. However, when a governmental entity is involved, there is also open records and open meeting considerations. The written agreement may be an open record.

In many conflicts, the degree of comfort secured by using a third-party neutral from an outside source such as OAH is very important to the success of the mediation. Particularly if one of the parties is in dispute with an agency, it is difficult for that party to trust the impartiality of a mediator who is part of the agency. Even when the dispute involves two employees of the same agency, using a third-party neutral from an outside source increases the perception and, perhaps, the reality of impartiality.

Participants may also have greater trust in the confidentiality of the process when an outside mediator is used. The trust and confidence that already exists, or that develops, between the participants and mediators is an extremely important part of the dynamic of a successful mediation.

OAH has four full-time administrative law judges, one part-time administrative law judge, and six temporary contract ALJs available to provide ADR services. OAH is prepared to handle ADR in all areas listed above. If you would like to explore ADR alternatives for your agency, or as a member of the public, contact OAH's director, Allen Hoberg, by writing to the Office of Administrative Hearings, 1707 North 9th Street, Bismarck, North Dakota 58501-1882 or calling (701) 328-3260.