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.
OALJ also offers the services of mediator Beth S. Slavet. Beth 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). With the assistance of Jashawn N. Stewart, Paralegal Specialist, she regularly mediates cases pending before the Office of Administrative Law Judges, including wage and hour, immigration, and whistleblower retaliation cases.
How do I request mediation or settlement judge conference?
To request mediation or settlement judge conference, you may:
Send an email to the applicable district office:
- OALJ-Headquarters-DC@dol.gov (cases assigned to Judges Henley and Almanza)
Write or send a fax to the applicable district office:
- National Office
- Boston, MA
- Cherry Hill, NJ
- Cincinnati, OH
- Covington, LA
- Newport News, VA
- Pittsburgh, PA
- San Francisco, CA
- Washington, DC
When making the request, it is important that you:
- Provide the OALJ Case Number (e.g., 2014-LHC-3000)
- State whether the other party or parties agree to the request
- Provide the telephone, e-mail addresses, and/or fax numbers of the various representatives or pro se litigants so that the settlement judge or mediator appointment and conference can be facilitated
For more information, contact Beth S. Slavet, General Counsel for Mediation, at 202-693-7339 or Slavet.Beth.S@dol.gov, or Jashawn N. Stewart, Paralegal Specialist, at 202-693-7369 or Stewart.Jashawn.N@dol.gov.
Settlement Judge form
- Request for Appointment of Mediator Word | PDF
- Order Appointing Mediator Word | PDF
- Agreement to Mediate (revised April 11, 2018) Word | PDF
About settlement judges
A settlement judge proceeding is court-sponsored mediation. 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. The settlement judge is authorized to consult with the parties and assist them in resolving a dispute without the need for a formal administrative hearing.
Settlement judge conferences are off-the-record, and are relatively informal in comparison to the normal hearing process. The settlement judge adjusts his or her role to the circumstances of the case, and may act as a moderator, facilitator or intermediary. The settlement judge will focus on realistically assessing the prospects of each side to the dispute, the risks and costs of further litigation, the interests of the parties, and the benefits each side can gain through settlement. The settlement judge may meet with counsel both together and separately. Follow-up conferences may be conducted.
Settlement judges are strictly impartial and will not act as an advocate for any party—although he or she will undoubtedly be a determined advocate for settlement of the case. There is no guarantee, however, that a particular case will settle, and a settlement judge will not attempt to force any party to settle.
Settlement judge proceeding are based on the voluntary participation of the parties. If at any time a party concludes that he or she no longer wishes to pursue the settlement judge process, the matter is referred back to the administrative law judge assigned to preside over the formal hearing.
The duration of the settlement judge's appointment is limited in order to prevent the settlement judge procedure from contributing to administrative delay, and to ensure that a formal proceeding will follow forthwith if a settlement is not reached. If the parties and the settlement judge agree that additional fruitful negotiations are possible, however, the settlement judge's appointment may be extended.
While a case is pending before the settlement judge, any requests for extensions of time for discovery or changes in a scheduling order must be presented to the presiding judge. The settlement judge is NOT empowered to grant extensions of time regarding the underlying proceeding.
OALJ's mediation process, like the settlement judge process, is court-sponsored. A case may be referred to OALJ's mediator by either the suggestion of a party, the Chief Administrative Law Judge, the judge assigned to adjudicate the case, or upon the suggestion of the mediator. Participation in mediation, however, is voluntary.
The mediator may ask the parties to provide her with information to share with the other party or to keep confidential on either a temporary or permanent basis. The "mediation file" maintained by the mediator will be kept separate from the judge who is assigned to hear the case. If, at any time, either the mediator or a party concludes that the process is unlikely to result in settlement by the parties, the matter will be referred back to the presiding judge.
The presiding judge may request the parties to participate in mediation at any point during the hearing process. The presiding judge will not be advised by the mediator of information provided to the mediator during mediation, except the result, unless the parties agree otherwise. While a case is pending before the mediator, any requests for extensions of time for discovery or changes in a scheduling order must be presented to the presiding judge, with a copy provided the mediator. The mediator is NOT empowered to grant extensions of time regarding the underlying proceeding.
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 Mediator, Beth S. Slavet, is a senior attorney who specializes in mediation. Many Settlement Judges and the OALJ Mediator have taken specialized mediation training. In addition, 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 Mediator has over 30 years of experience in whistleblower, and labor and employment law, and is focused on providing court-sponsored mediation. Because Settlement Judges have a full docket of cases to hear, the Mediator’s schedule tends to be more flexible, and she 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, Paralegal 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 the 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 the mediator are frequently used in areas such longshore workers' compensation cases, whistleblower complaints, OFCCP actions, and Workforce Investment Act disputes. Cases pending before the Administrative Review Board are sometimes referred to OALJ for a settlement judge or mediation.
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 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.