APA: resolving administrative disputes.

• Author: Forthman, Carol A.
• Position: Florida

The 1996 revision to F.S. Ch. 120 added two new methods of resolving administrative disputes: mediation and a summary procedure designed to shorten noncomplex hearings. The motivation for a streamlined administrative process came from the observation of many citizens and practitioners that the APA had become overly legalized for some disputes. While some administrative disputes are complex and involve many parties, others are relatively simple. Some simply involve individual litigants trying to address government action affecting their interests.

Mediation

Mediation as generally conceived and as practiced under judicial rules in Florida is, in essence, facilitated negotiation. Mediation is defined in F.S. [sections] 44.1011(2) as follows:

"Mediation" means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decisionmaking authority rests with the parties. The role of mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.... (lists several types of mediation). (Emphasis added.)

Mediation is defined as a procedure in which a neutral third party assists the parties in arriving at a mutually acceptable resolution of the dispute. As opposed to the adversarial nature of litigation, mediation focuses on finding mutually acceptable outcomes that optimize results for all parties. The process itself is flexible and can be structured to meet the needs of the parties and the particular character of the dispute.

Ch. 44 establishes that reaching agreement is voluntary but, once agreed to and signed by the parties and their attorneys, the agreement is binding on the parties and enforceable by the courts.(1) Although in Florida a court can order parties to participate in mediation, it cannot order a settlement. Successful mediation requires the commitment of the parties to resolve their differences. The mediator's task is to create a process that will motivate the parties to explore their options and to create an environment conducive to solving problems rather than taking positions. This involves keeping communications clear and constructive, exploring options with parties individually to find common ground, and other similar techniques.

Both simple and complex actions may benefit from the mediation process. Mediation can resolve or narrow the dispute without extensive discovery and litigation, and can provide more flexible solutions than are available in a final order after a hearing.

The new APA contains three references to mediation. The first two relate to rulemaking. The first is at F.S. [sections] 120.54(2)(c), which simply states that a rule workshop "may be facilitated or mediated by a neutral third person ...." The second reference is in F.S. [sections] 120.54(2)(d)1. "[N]egotiated rulemaking" provides for resolution by a selected drafting committee. The provision contains the simple statement: "The negotiating committee shall be chaired by a neutral facilitator or mediator." No other mention is made and no direction is given for reimbursement of the mediator or other details. Such matters are presumably left to the rule-negotiating committee to resolve.

The third mention of mediation in the new statute pertains to disputes over preliminary agency action and is more explicit than the other two. Section 120.573 states:

Mediation of Disputes--Each announcement of an agency action that affects substantial interests shall advise whether mediation of the administrative dispute for the type of agency action announced is available and that choosing mediation does not affect the right to...