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Using Mediation in State Administrative Processes by Rebekah Smith, posted on January 15, 2017

January 15, 2017 10:24 AM | Anonymous

Mediation has become a critical component of dispute resolution in three administrative settings in Maine state government, suggesting that other agencies should explore the possibility of instituting mediation as part of their adjudicatory or dispute resolution processes.  The Maine Department of Education and the Maine Human Rights Commission have had great success instituting high-quality, low-cost mediation programs that reduce the number of cases that require further adjudicatory processing.  In addition, the Office of the Attorney General has a long-standing phone conciliation program that reduces the number of consumer complaints that require agency resources.

The Maine Department of Education was a leader among states in offering mediation, which it began to do in the late 1980s.  When special education services are at issue, a parent or a school district may file a request for either a complaint investigation, conducted by a Department of Education employee on behalf of the Commissioner, or a hearing, conducted by an independent hearing officer contracted by the Department.  A request for either process provides the opportunity for the parties to take part in mediation paid for by the Department.  A stand-alone mediation may also be requested, even without the filing of a complaint investigation or hearing request.  The Department’s roster of experienced mediators, who contract with the Department, are assigned to cases on a rotating basis.

The focus of these mediations is most frequently the eligibility of a student for special education services, or the configuration of services or placement of a student who has already been deemed eligible.  Although school districts nearly always consult with a lawyer, the school district may only bring a lawyer to the mediation if the parents also are represented by a lawyer or non-attorney  advocate.  To the maximum extent possible, agreements are finalized in writing at the conclusion of the mediation and routinely include the withdrawal of the hearing or complaint investigation request by the complaining party.  There is no cost to parties to participate in this mediation program nor does it result in any delay in the adjudicatory process.  The Department has found that having a mediation program in place greatly reduces the number of due process proceedings that are held, at significant cost savings to the Department  and the parties in the long run.  In the past three fiscal years, 84 cases have been resolved through mediation, with nearly half that number of hearing or complaint investigation requests also being withdrawn, often a result of resolution following the formal mediation.  Mediation in this context is also particularly useful to parties, who are often in an ongoing relationship around the education of the student, a relationship that may continue for many years to come.  Resolving a dispute through a collaborative process such as mediation greatly increases the quality of the parties’ relationship going forward, ultimately serving the best interests of the student.  As one mediation participant responded as to why she chose mediation, “[m]y preference [was] for mediation in order to end the long drawn out process of a hearing.  Mediation would appear to assist with emotions and trust remains between family and school.”

The Maine Human Rights Commission has more recently created a mediation program and has seen a significant increase in interest in participation from parties in recent months.  With grant funding secured through the Skadden Foundation in 2011, I helped the Commission conduct a review of mediation programs at other Human Rights Commissions in New England.   Following that review, in 2012, the Commission instituted its own mediation program by rule, also using a small roster of experienced, contracted mediators.
Mediations cover the gamut of issues that may be raised before the Commission alleging unlawful discrimination.   The Commission has a standardized set of agreements that the parties may use to memorialize an agreement and modify as they wish, although the Commission must also sign any agreement reached by the parties.  Further, even if the parties reach a private settlement and opt to dismiss their complaint with the Commission, before it will dismiss the complaint, the Commission requires the parties to disclose the terms of the agreement, which it utilizes in the aggregate for data collection purposes.   The majority of mediated cases allege employment discrimination; remedies can include reinstatement, reasonable accommodations, letters of reference, modified policies, compensatory or punitive damages, and attorney’s fees, among others.  In public accommodation claims, remedies might include the respondent ceasing and desisting from an unlawful practice, instituting new policies, participating in training, or paying damages or attorney’s fees.   Although the mediation program is utilized less frequently in the context of alleged housing discrimination, common remedies include reasonable accommodations, participation in training by the respondent, development or modification of policies, and actual or civil penal damages.

The Commission is not able to offer mediation to all cases, but instead selects cases based on Commission staff’s assessment of the possibility of resolution and the interest of the parties in participation.  Parties are offered access to the mediation program after the Commission has received the respondent’s answer to the complaint and response to the request for information and documents and after the complainant has filed a reply supporting his or her complaint.  Once a referral to mediation is made, further investigation of the case can remain on hold pending the conclusion of the mediation.

Tight budgets at the Commission have resulted in a shift of the cost of the mediation to the parties, although participation remains a bargain.  Since the implementation of a new rule in September 2014, each party to the dispute is required to pay a fee of $200 to participate in mediation.  The Commission has created a scholarship program to allow parties who are not able to pay the mediation fee the opportunity to participate.   The Commission has found that the mediation program is highly successful in resolving cases, thereby removing the need for full Commission investigation of those cases.  In the first nine months of the program, the parties successfully reached agreement in 17 out of 23 cases.   Feedback about the mediators on the roster is also very positive — as one attorney representing a complainant indicated:  “Awesome mediator. Great communication, empathy, patience, professionalism.  We achieved rough justice, always the goal. Thank you for offering this program.”

Both the Department of Education and the Commission have statutes or rules to supplement the applicable Maine Rules of Evidence regarding confidentiality of the mediation process as well as conflict of interest requirements.

Both the long standing mediation program of the Department of Education and the newly revived program at the Maine Human Rights Commission show the benefits of a mediation program both in terms of saving government funds and also in terms of shortened length of time to resolution for parties.  Although full-blown mediation programs staffed by experienced mediators are the ideal, other agencies have enacted modified mediation programs to help resolve cases and conserve resources.  The Attorney General’s office started a volunteer mediation program in the 1980s that provides phone mediations in consumer complaints.  Once the Attorney General’s office receives a complaint, it forwards the complaint to the business along with the relevant chapter from the Attorney General’s Maine Consumer Law Guide.  A cover letter urges the parties to come to an agreement, which results in the resolution of about 20% of filings.  If there is no resolution with the initial letter, a volunteer mediator has telephone communication with each party in an effort to find a resolution.  About 50% of all filings are resolved through the volunteer mediation program, often resulting in funds being returned to the consumer.  In other states, including Georgia, Florida, and Ohio, mediation programs have been instituted to resolve citizen complaints of denial of access to public documents.

With a little creativity and thoughtful implementation, it is likely that mediation programs could be instituted in many other areas of Maine state government to aid the voluntary resolution of disputes and save limited state resources.

This article originally appeared in the June 2015 Special ADR issue of the Maine Lawyers Review.

About the Blogger:

 Since 2005, Rebekah Smith has maintained a neutral legal practice, specializing in mediation, arbitration, administrative law judging, and independent outside investigation.  As a mediator, Ms. Smith has mediated many hundred cases on a wide range of topics, from real estate to human rights.  She thoroughly explores all avenues to settlement and enjoys bringing parties together to resolve their situation creatively.  In addition to providing mediation and independent investigator services for private parties, she serves as a mediator or arbitrator for the Maine Department of Education, the Maine Labor Relations Board of Arbitration and Conciliation, the Maine Human Rights Commission, and the Maine Court system (Foreclosure Diversion Program, Small Claims Court, Landlord-Tenant matters, and Superior Court roster). As an administrative hearing officer, Ms. Smith presides over hearings for the Maine Department of Professional and Financial Regulation (and several licensing boards affiliated with DPFR), the Maine Public Employees Retirement System, the Maine Board of Emergency Medical Services, and the Maine Department of Public Safety. She is a Policy Fellow at the Margaret Chase Smith Policy Center and she has also served as an Adjunct Legal Studies Professor at the University of Maine at Augusta. Ms. Smith is also a member of the Board of Directors of the Maine Association of  Mediators and the Board of Directors of Children’s House Montessori School.

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