1.04 Conduct of Mediation by DALA

(1) Preamble

On cases appealed to the Division of Administrative Law Appeals, or assigned to the Division of Administrative Law Appeals for hearing, the case may be assigned to mediation at the request of any Party. Any Party may decline assignment to mediation.

(2) Definitions

Refer to all definitions included in Chapter 30A of the General Laws and in 801 CMR 1.01 and 1.02. In addition, MODR shall mean the Massachusetts Office of Dispute Resolution.

(3) Mediation Referral.

1. Internal Mediation. DALA shall supply the Parties with a list containing not less than three DALA administrative magistrates as suggested mediators. Each Party may strike one administrative magistrate from the list, and DALA will not assign any administrative magistrate who has been stricken from the list to conduct the mediation. DALA shall notify the parties of the assigned mediator. The mediator shall, within ten days of assignment, schedule a mediation at a convenient time and location.
2. External Mediation. By decision of DALA or by agreement between the parties in lieu of or following an internal mediation, a case can be referred to the Massachusetts Office of Dispute Resolution (MODR) for mediation or other dispute resolution service. MODR will supply the parties with a list of three suggested mediators. Each Party shall indicate to MODR their order of preference and MODR will coordinate the selection of the mediator and the mediation process. MODR will work with the Department of Administrative Law Appeals to develop criteria for referrals, screening and fee policy.

(4) Mediation

Mediation, either with a DALA administrative magistrate or a mediator from the Massachusetts Office of Dispute Resolution, shall be conducted in accordance with the following procedures.

(a) All Parties shall make available to the mediation a Person who has authority to bind the Party to a mediated settlement.

(b) All Parties must agree in writing to the following:

1. Not to use any information gained solely from the mediation in any subsequent proceeding;

2. Not to disclose any information gained solely from the mediation to persons not involved in the mediation;

3. Not to subpoena the mediator for any subsequent proceeding;

4. Not to disclose to any subsequently assigned administrative magistrate the content of the prior mediation discussion; to mediate in good faith;

a) that any agreement of the parties derived from the mediation shall be binding on the parties and, once reduced to writing and signed by all parties, will have the effect of a contract in subsequent proceedings; and

b) that this confidentiality provision set forth in this agreement shall also apply to the person serving as mediator.

5. If any Party fails to appear at the mediation without explanation, the mediator shall return the matter to DALA.

6. The mediator may at any time return the matter to DALA. If the mediator was a DALA administrative magistrate, the hearing shall be scheduled before another DALA magistrate.

7. No particular form of mediation is required. The structure of the mediation shall be tailored to the needs of the particular dispute. Where helpful, Parties may be permitted to present any documents, exhibits, testimony or other evidence which would aid in the attainment of a mediated settlement.

(c) Time Limit. In no event shall mediation efforts continue beyond 30 days from the date of the first scheduled mediation unless this time limit is extended by agreement of all the parties.

(d) Conclusion of Mediation.

1. If mediation results in agreement, mediation shall be concluded by a settlement agreement.
2. If mediation does not result in agreement resolving the entire matter, the matter shall be returned to DALA for scheduling appropriate subsequent proceedings at the earliest possible time.

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