PUBLIC SESSION
MEETING CONVENED
Committee Chair and Commission Vice Chair R. Marc Kantrowitz called the meeting to order at 2:00 p.m. Also in attendance were Committee member and Commission Chair Maria J. Krokidas and Committee member and Commission Executive Director David A. Wilson. Committee Chair Kantrowitz, Chair Krokidas, and Mr. Wilson participated remotely.
REMOTE PARTICIPATION
Committee Chair Kantrowitz announced that the meeting would take place remotely pursuant to the law signed by Governor Baker on June 16, 2021 extending certain COVID-19 measures adopted during the state of emergency. He stated that members of the public had been invited to watch and listen to the public session via Zoom Webinar. Committee Chair Kantrowitz noted that all votes at the meeting would be taken by roll call.
APPROVAL OF MEETING MINUTES
On the motion of Committee Chair Kantrowitz, seconded by Chair Krokidas, the Committee voted 2-0 to waive the reading and approve the public session minutes of the June 7, 2021 Committee meeting.
| Committee Chair Kantrowitz | Yes |
| Committee Member Krokidas | Abstain |
| Committee Member Wilson | Yes |
DISCUSSION
Draft Mediation Policy
Committee Chair Kantrowitz thanked General Counsel/Legal Division Chief Eve Slattery for preparing the draft mediation policy. He asked whether the Commission should appoint current Commissioners to serve as volunteer mediators. Mr. Wilson stated that current Commissioners should not serve as mediators because they would need to abstain from any participation as Commissioners in any matters in which they would act as mediators in order to ensure impartiality in the mediation process.
Chair Krokidas asked how the Commission could enforce the confidentiality of the mediation process. Ms. Slattery explained that all communications in mediation are confidential and not subject to disclosure pursuant to G.L. c. 233, § 23C. She noted that the statute also requires that mediators complete at least 30 hours of training in mediation. Ms. Slattery said that the Commission could ask former Commissioners David A. Mills and Charles B. Swartwood, III, who have extensive mediation experience, to serve as volunteer mediators.
Committee Chair Kantrowitz asked whether a written confidentiality agreement would be sufficient to assure the confidentiality of the mediation process. Commissioner Eron Hackshaw explained that a written confidentiality agreement would not provide the same protections as the mediation confidentiality statute.
Ms. Slattery stated that the Legal Division and the Enforcement Division agreed that mediation should be offered to the parties after an Order to Show Cause is issued. Following discussion, the consensus of the Committee was that adjudicatory proceedings can be resolved by mediation only if both parties agree to pursue mediation.
Chair Krokidas asked whether the Commission has amended its Enforcement Procedures. Ms. Slattery said that the Enforcement Procedures are available on the Commission website, which include the dates that they were amended. Committee Chair Kantrowitz noted that the Commission has not reviewed the Enforcement Procedures in recent years. He said that the Commission should discuss potential amendments to the Enforcement Procedures at the next meeting.
At 2:55 p.m., on the motion of Committee Chair Kantrowitz, seconded by Chair Krokidas, the Committee voted 3-0 to approve the draft mediation policy as amended at the meeting.
| Committee Chair Kantrowitz | Yes |
| Committee Member Krokidas | Yes |
| Committee Member Wilson | Yes |
Pro Bono Counsel
Chair Krokidas said that the Commission should examine how regulatory agencies provide pro bono legal services. Ms. Slattery reported that she has been in contact with the General Counsel's Office of the Board of Bar Overseers about their pro bono services. She noted that there may be difficulty in recruiting pro bono counsel who would be interested in volunteering when the Commission has a lower volume of cases than the Board of Bar Overseers does. Mr. Wilson said that a pro bono program may not be worth the effort if only a small number of cases would benefit from pro bono counsel.
Committee Chair Kantrowitz expressed his concern with providing pro bono services to respondents who are not indigent as it may delay the adjudicatory process. Mr. Wilson said the Commission would need to determine who would qualify for pro bono counsel. Ms. Slattery explained that the Board of Bar Overseers does not have any eligibility requirements for indigency in order for defendants to request pro bono services. Committee Chair Kantrowitz asked Ms. Slattery to prepare a memorandum about a pro bono program for discussion at the next meeting.
Interlocutory Appeals
Committee Chair Kantrowitz stated that the parties in adjudicatory proceedings should be allowed to file interlocutory appeals before the full Commission if their motions are granted or denied. Ms. Slattery explained that the Board of Registration in Medicine and the Massachusetts Commission Against Discrimination only allow interlocutory appeals in very limited circumstances. Mr. Wilson stated that parties should have a right to file interlocutory appeals from decisions of the Presiding Officer, such as those concerning confidentiality, that cannot be effectively undone through later action by the full Commission. Committee Chair Kantrowitz asked Ms. Slattery to prepare a memorandum about interlocutory appeals after the Commission concludes its discussion of a pro bono program.
ADJOURN MEETING
At 3:15 p.m., on the motion of Committee Chair Kantrowitz, seconded by Mr. Wilson, the Committee voted 3-0 to adjourn.
| Committee Chair Kantrowitz | Yes |
| Committee Member Krokidas | Yes |
| Committee Member Wilson | Yes |
LIST OF DOCUMENTS USED AT THIS MEETING
- Agenda for the Legal Committee Meeting of September 10, 2021
- Minutes of the Legal Committee Meeting of June 7, 2021 Public Session
- Draft Mediation Policy
Respectfully submitted,
Arthur Xia
Program Coordinator