Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/646479
56 AGGREGATES MANAGER / March 2016 Consider these tips to successfully navigating a mediator-led negotiation. Benjamin J. Ross is an associ- ate in Jackson Kelly PLLC's Denver office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 303-390-0026 or bross@jacksonkelly.com. Settling MSHA Cases Through Mediation H earings before the Federal Mine Safety and Health Review Com- mission to resolve alleged viola- tions issued by the Mine Safety and Health Administration (MSHA) are time consuming and costly, and have uncertainty in their outcome. Either the operator pays coun- sel for representation at the hearing, or it uses valuable time and effort to represent itself. Either way, the judge determines the outcome of a hearing. The vast majority of cases as- signed to Commission judges, however, do not go to hearing. Rather, the mine operator and MSHA, usually both represented by counsel, negotiate and agree to a settlement. The assigned judge is never involved in settlement discussion directly, but a judge may appoint a third party mediator to help MSHA and the mine operator reach a settle- ment. The mediator is not an independent operative paid by the parties; the mediator is an attorney that the Commission employs. There are mediators in the Commission's Washington, D.C. headquarters and attorney advisors who advise judges in Washington, D.C., Pittsburgh, and Denver act as mediators. In some cases, another Commission judge will act as a mediator. Mediator assignment Most cases do not involve mediators, and the parties do not have a right to their services; judges assign mediators at their discretion. Sometimes, a judge will assign a mediator without input from the parties because the judge believes doing so will resolve a case. Judges will sometimes, however, assign a mediator at the request of the parties. This request should be supported by both parties or the judge is unlikely to agree. A formal motion is generally not required; the parties can request a mediator via email or during a conference call with the judge. The judge is more likely to grant such a request if the parties demonstrate that they have discussed settlement, desire to settle the case, and believe that a mediator may facilitate that settlement. Some judges, furthermore, include in- formation about requesting a mediator in their Prehearing Order. Parties should always review a Prehearing Order, and doing so be- fore requesting a mediator is critical. If the Prehearing Order has no information about mediation, contact the judge's attorney advi- sor or law clerk to ask how the judge assigns mediators. Mediator role Once assigned, each mediator uses a different process based upon the mediator, the judge, the parties, and the case at issue. There are commonalities, however, between most mediations. The mediator is a neutral third by Benjamin J. Ross ROCKLAW