Settlement judges and mediation
The U.S. Department of Labor, Office of Administrative Law Judges (OALJ) offers two types of court-sponsored alternative dispute resolution: settlement judges and mediation services.
A settlement judge is an administrative law judge familiar with the procedure and subject matter of Department of Labor adjudications, and trained in alternative dispute resolution techniques. Settlement judge conferences are governed by 29 C.F.R. § 18.13. More information on settlement judges, including how to request a settlement judge, can be found at SETTLEMENT_JUDGE.
OALJ also offers mediation services. OALJ's Chief of Mediation, Beth S. Slavet, has over 30 years of experience as a practitioner and adjudicator in whistleblower and labor and employment law. She is certified as a Mediator by the National Judicial College (NJC). Jashawn N. Stewart, Mediator Specialist, assists Beth in the administration of the mediation program. Beth and Jashawn, and a team of mediators, regularly mediate cases pending before OALJ, including wage and hour, longshore, immigration, and whistleblower retaliation cases. More information on the mediation program, including how to request mediation, can be found at MEDIATION.
What are the differences between settlement judge proceedings and mediation?
Settlement judge proceedings and mediations are similar. The main difference is that settlement judges are ALJs who conduct settlement conferences as an ancillary activity as their hearing schedules permit, while OALJ’s mediators are retired judges, senior attorneys, and legal professionals. Settlement judges bring a wealth of experience and subject matter expertise in cases adjudicated by OALJ and can provide a judicial perspective to the issues underlying the dispute, while the OALJ's mediators are legal professionals who have extensive experience in labor and employment law, and is focused on providing court-sponsored mediation. Because settlement judges have a full docket of cases to hear, the mediators’ schedules tend to be more flexible, and a mediator can often schedule mediation more quickly than a settlement judge could. If parties would like to learn more about OALJ’s alternative dispute resolution programs prior to making a decision whether to engage in the settlement judge or mediation process, they are welcome to contact Ms. Slavet at 202-693-7339 or Slavet.Beth.S@dol.gov, or Jashawn N. Stewart, Mediator Specialist, at 202-693-7369 or Stewart.Jashawn.N@dol.gov.
Is a fee charged for the mediator or settlement judge's services?
No. The Department does not charge fees for the services of a settlement judge or a mediator.
What cases are eligible?
Most types of cases heard by OALJ are eligible for a settlement judge conference or a mediation. Settlement judges and mediators are frequently used in areas such longshore workers' compensation cases, whistleblower complaints, OFCCP actions, and Workforce Investment and Opportunity Act disputes. Cases pending before the Administrative Review Board are sometimes referred to OALJ for a settlement judge or mediation proceeding.
Cases that are not eligible or appropriate for ADR include black lung claims and appeals of denials of permanent alien labor certification. In addition, the Employee Benefits Security Administration prefers to use its own ADR process in cases involving civil money penalties imposed under the Employee Retirement Income Security Act (ERISA). Settlement judges and mediators are not available in longshore cases while the matter is still pending before OWCP.
Are settlement judge and mediator conferences confidential?
Although settlement judge and mediator conferences will be kept confidential to the extent possible, participants should be aware that there are circumstances in which disclosure of information from a settlement judge or mediator conference may be required by operation of law or ordered by a court. Confidential documents provided in settlement judge and mediator conferences are exempt from disclosure under FOIA. See 5 U.S.C. § 574(j). If a discovery request or other legal process is made on a settlement judge or mediator regarding a confidential communication made during the settlement judge or mediator conference, the OALJ will make reasonable efforts to notify the parties and any affected nonparty participants of the demand, to provide them with an opportunity to defend a refusal to disclose the requested information. See 5 U.S.C. § 574(e). Please note that if the party or affected nonparty participant does not make an offer to defend, they will be considered to have waived any objection to disclosure. See 5 U.S.C. § 574(e).
The Department of Labor's settlement judge rule describes, in part, the limits of confidentiality at 29 C.F.R. § 18.13(g). Importantly, under the Department of Labor rule, the settlement judge is prohibited from discussing any aspect of the case with the presiding judge, and no evidence regarding statements or conduct in the settlement judge proceedings will be admissible in the underlying proceeding or any subsequent administrative proceeding before the Department, except by stipulation of the parties. The mediation program also follows these rules.
What happens if a settlement is reached?
If a settlement is reached, the settlement will be treated as would any other case that is settled without of the services of a settlement judge or mediator. Department of Labor proceedings vary considerably in how settlements or consent findings are handled. In addition, the agreement of the parties itself may affect whether the settlement or consent findings must be submitted to the presiding ALJ.
All cases handled by the mediator will be submitted to the presiding judge at the conclusion of the mediation for appropriate disposition. Settlement agreements in most whistleblower cases, for example, must be reviewed and approved by the presiding ALJ before the case is dismissed from the adjudicatory docket. In other types of cases, the settlement may require the presiding judge to approve consent findings. In still other types of cases, it may be sufficient for the parties to simply stipulate to dismissal of the ALJ hearing.
The settlement judge and mediator should be able to assist the parties in determining the requirements for reporting a settlement to the presiding judge.
What happens if the parties are not able to settle the case?
If a settlement conference is unsuccessful or only partially successful, the case is returned to the presiding administrative law judge without comment, and the formal hearing process continues.