The American Radio Relay League, Inc. Mediation Service
Adopted July 1999
Despite the long and distinguished history of cooperation and good sportsmanship in the Amateur Radio community, there are occasions in which legitimate disputes arise involving operators of repeater stations, other fixed station facilities, and the like. Previously, the only way these controversies could be handled was through formal complaint proceedings before the Federal Communications Commission (FCC) or in court. However, because those mechanisms are notoriously slow and costly, a more informal system of dispute resolution has been sorely needed.
At the 1997 Annual Meeting of the Board of Directors of the American Radio Relay League, Inc., held January 17-18, and reported in the March 1997 issue of QST (the League's official journal), the Board recognized the usefulness of such litigation alternatives as mediation and arbitration and voted to "establish an Alternative Dispute Resolution (ADR) service for the use of Amateur Radio operators, amateur organizations, citizens and organizations and others having disputes concerning Amateur Radio related subjects."
The Board of Directors also set forth the following mandates to govern the organization and operation of the new service:
1. ADR is a substitute for settling problems by litigation. ADR includes: conciliation, mediation, and arbitration - either binding or non-binding.
2. ADR offers will be arranged through the office of League's General Counsel, by means of referral to volunteer counsel or others.
3. All costs of ADR will be borne by the disputants.
4. All ADR will be by agreement of the disputants.
5. Rules of ADR will be made by General Counsel's direction and will be considered accepted by disputants and persons designated and agreed upon as facilitators.
6. ARRL and the volunteer mediators will be free from liability by means of prior written agreement of the participants who choose to avail themselves of the service.
Responding to the mandate for a full-service alternative dispute resolution program which offers such assistance options as non-binding arbitration and mediation, the Board and General Counsel implemented a binding arbitration program in March 1998. Now, in completion of the 1997 mandate by Board of Directors, and to provide an alternative to both costly litigation and binding arbitration, the Board has decided to implement a mediation program. Accordingly, this booklet contains the rules and procedures governing mediation administered by the ARRL Mediation Service. [Note: The forthcoming mediation principles are based on materials reviewed at the Mediation Information and Resource Center (including, but not limited to, "Draft Standards of Practice for California Mediators")].
WHAT IS MEDIATION?
Mediation may be thought of as "assisted negotiation." Negotiation may be thought of as "communications for agreement." Hence, mediation is "assisted communications for agreement." Central to mediation is the concept of "informed consent." So long as participants understand the nature of a contemplated mediation process and effectively consent to participate in the described process, virtually any mediation process is possible and appropriate.
KEY QUALITIES OF THE MEDIATION PROCESS
Voluntary - You can leave at any time for any reason, or no reason.
Collaborative - You are encouraged to work together to solve your problem(s) and to reach what you perceive to be your best agreement.
Controlled - You have complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.
Confidential - Mediation is confidential, to the extent you desire and agree. Mediation discussions and all materials developed for a mediation are not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. Your mediator is obligated to describe any exceptions to this general confidentiality of mediation. Confidentiality in mediation may be waived in writing, although the mediator may retain his or her own ability to refuse to testify in any contested case. The extent of confidentiality for any "caucus meetings" (meetings between the mediator and individual parties) should also be defined.
Informed - The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Mutually acceptable experts can be retained. Such jointly obtained expert information can be designated as either confidential to the mediation or, as the parties desire, as admissible in any subsequent contested proceeding. Expert advice is never determinative in mediation. The parties always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each mediation participant.
Impartial, Neutral, Balanced and Safe - The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. Your mediator is ethically obligated to acknowledge any substantive bias on substantive issues in discussion. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
Self-Responsible and Satisfying - Based upon having actively resolved your own conflict, participant satisfaction, likelihood of compliance and self-esteem are found by research to be dramatically elevated through mediation.
BENEFITS OF MEDIATION
People in disputes who are considering using mediation as a way to resolve their differences often want to know what the process offers. While mediation cannot guarantee specific results, there are trends that are characteristic of mediation. Below is a list of some of the benefits of mediation, broadly considered. Mediation generally produces or promotes:
Mediation is generally less expensive when contrasted to the expense of litigation or other forms of fighting.
In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, the mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with business or their lives, mediation may be desirable as a means of producing rapid results.
Mutually Satisfactory Outcomes
Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third party decision-maker.
High Rate of Compliance
Parties who have reached their own agreement in mediation are also generally more likely to follow through and comply with its terms than those whose resolution has been imposed by a third party decision-maker.
Comprehensive and Customized Agreements
Mediated settlements are able to address both legal and extra-legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination. The parties can tailor their settlement to their particular situation.
Greater Degree of Control and Predictability of Outcome
Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.
People who negotiate their own settlements often feel more powerful than those who use surrogate advocates, such as lawyers, to represent them. Mediation negotiations can provide a forum for learning about and exercising personal power or influence.
Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way
Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties' interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.
Workable and Implementable Decisions
Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.
Agreements that are Better than Simple Compromises or Win/Lose Outcomes
Interest-based mediated negotiations can result in settlements that are more satisfactory to all parties than simple compromise decisions.
Decisions that Hold Up Over Time
Mediated settlements tend to hold up over time, and if a later dispute results, the parties are more likely to utilize a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach.
FILING A MEDIATION AGREEMENT
A case is instituted under the ARRL Mediation Service by filing a signed Mediation Agreement, together with the requisite filing fee, with the ARRL General Counsel. The General Counsel reviews the materials and refers the matter to the ARRL Mediation Service. The League's General Counsel is:
Christopher D. Imlay
Booth, Freret, Imlay & Tepper, P.C.
14356 Cape May Road
Silver Spring, MD 20904
Telephone: (301) 384-5525
Facsimilie: (301) 384-6384
Rules of Mediation
1. Initiation of a Case
Parties to a dispute involving issues of concern to the Amateur Radio Service as regulated by the FCC may commence a case under these Rules by filing with the ARRL General Counsel an original Mediation Agreement containing substantially the same language as used in the SAMPLE AGREEMENT TO MEDIATE in APPENDIX 1 of this booklet.
The parties shall include in the Agreement a concise statement of the nature of the dispute and the remedy sought. These materials shall be submitted with the appropriate filing fee as provided in the Fee Schedule set forth below. To facilitate scheduling of a hearing, the parties may submit a list of dates, times, and/or locations preferred by the parties. The earliest date specified in the agreement should be at least 45 days after the filing of the Mediation Agreement. The parties may also state their joint preferences regarding a mediator.
2. Incorporation of Rules Into Agreement of the Parties
By instituting a Mediation proceeding administered by the ARRL Mediation Service, the parties shall be deemed to have made these Rules a part of their Mediation Agreement. These rules shall apply in the form existing at the time the parties execute their agreement. The parties, by written agreement and with the consent of the mediator, or as required by law, may vary the procedures (including deadlines) set forth in these rules.
Mediation means a process in which a neutral person or persons facilitate communication and negotiations between the disputants to assist them in reaching a mutually acceptable agreement, or, at least, a better understanding of each party's positions, interests, and motivations.
Mediator means a neutral person, or persons, who conduct(s) a mediation. In these Standards, all persons acting in this role are called "mediators" although, in some cases, their titles may be "ombudspersons", "facilitators", "intermediaries", "neutrals", or a similar title. . "Mediator" includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation.
Mediation Consultation means a communication between a person and a mediator for the purpose of initiating, considering, or reconvening a mediation or retaining the mediator.
Party includes a group or team taking part in a mediation comprised of a disputant and all of that disputant's respective advocates, representatives, witnesses and translators.
Participant is any single person taking part in a mediation.
Provider Organization means any organization offering mediation services. The ARRL Mediation Service constitutes such provider organization.
4. Voluntary Participation and Self-determination.
A mediator shall recognize that mediation is based upon the principle of self-determination by the parties.
While participants may be mandated or ordered by a court to the mediation process, they cannot be mandated through the process. A mediator may not require any length of time or level of participation of a participant in a mediation or enforce a requirement not voluntarily agreed to by the participants. The mediator should explain to the participants that while the participation of all decision-makers is critical, any participant may withdraw from mediation at any time.
Self-determination is a fundamental principle of mediation. Mediation relies on the parties to reach a voluntary, consensual, informed and uncoerced agreement. Responsibility for the resolution of a dispute and the shaping of an agreement rests with the participants. The responsibility for the process rests with the mediator in consultation with the parties.
5. Impartiality, Bias and Disclosure
A mediator shall avoid mediating a matter in which the mediator may be biased or have an interest. The parties may consent to use a mediator's services after a disclosure of any known grounds on which the mediator's neutrality might reasonably be questioned.
A. Disclosing Potential Interests or Bias
The mediator and provider organization should be free from bias or interest concerning the resolution of the dispute, and committed to assisting all parties equally in reaching a mutually satisfactory agreement.
Mediators and provider organizations should identify and disclose, at the time of selection or assignment, potential grounds upon which their impartiality reasonably can be questioned. Such disclosure should include, but not be limited to, the identification of any previous selection(s) as a neutral by any participant during the prior three years ("Case Experience"), and any known current or past personal or professional relationship or affiliation with any participant that reasonably may be perceived as affecting the mediator's impartiality ("Relationships").
Mediators and provider organizations should resolve all doubts in favor of disclosure. All disclosures shall be made as soon as practical after the mediator becomes aware of the interest or relationship. The duty to disclose is a continuing obligation. The mediator should encourage each participant to make a similar effort to disclose any Case Experience or Relationships with the mediator.
The mediator should provide the participants with an adequate opportunity to explore any reasonable concern regarding the mediator's impartiality. In the event a participant asks a mediator to withdraw prior to the commencement of a mediation, or thereafter upon newly disclosed information by the mediator, the mediator must do so. If a participant raises a question about a specific interest or relationship, the mediator should proceed only after all participants, with full knowledge of the mediator's interests and relationships, indicate they do not object to having the mediator proceed.
If a mediator determines that an interest or relationship casts doubt on the integrity of the process, the mediator should withdraw. If at any point during the process the mediator becomes incapable of maintaining impartiality, the mediator should withdraw, unless the parties expressly request in writing that the mediator continue despite the mediator's disclosure.
B. Disclosures when a Neutral is to Use More than One Dispute Resolution Process.
When a neutral learns that the use of more than one dispute resolution procedure is contemplated (e.g. med-arb or counseling-mediation), the neutral must clearly define the different procedures, define the neutral's role in each procedure, and advise the participants of the consequences of revealing information during any one procedure. The mediator should afford the participants an opportunity to select another neutral for the subsequent procedure. The neutral must advise the participants when he or she is moving from one procedure to another.
C. A Mediator has a Continuing Duty to Disclose and Avoid Biases and Interests.
A mediator shall not use the dispute resolution process to solicit, encourage or otherwise procure any other relationship with any participant. A mediator shall not take advantage of, personally profit from, or otherwise exploit information acquired through mediation. Without the consent of all participants, a mediator may not act on behalf of any participant in court, act as a consultant for a participant, nor represent one participant against the other, either during or after the mediation, in any proceeding related to the subject matter of the mediation.
6. Standards for Conducting a Mediation.
A mediator shall conduct a mediation in an impartial and fair manner.
The mediator should provide a procedurally fair and balanced process in which each participant is given an adequate opportunity to meaningfully participate. The mediator should encourage the participants to conduct themselves in a collaborative, non-adversarial manner. Mediators should exercise good faith judgment, maintain professional standards of conduct, and conduct all proceedings in an evenhanded manner, treating all participants with equality, fairness, patience and courtesy.
Unless the parties and mediator have agreed otherwise, it does not violate the duty of conducting a mediation impartially for the mediator to provide information about the process, or the substantive issues, which the mediator is qualified to give, to address obstacles to communication, assist the participants in clearly defining the issues, and explore alternatives and options in an attempt to reach an informed, voluntary agreement. Subject to duties of nondisclosure of confidential information, a mediator is obligated to be truthful, and should allow participants the opportunity to consider all proposed options. The mediator should not prolong unproductive discussions, and, for good cause, may terminate the mediation at any time. Pressures from outside of the process should never influence the mediator to insist on particular terms of a settlement.
Unless the parties and the mediator have agreed otherwise, a mediator should not give any participant legal or any professional other advice. While a mediator may generally discuss a party's options including possible outcomes of a dispute in a court trial, arbitration or other adjudicative process, a mediator should not offer an opinion as to precisely how a particular adjudicative tribunal will resolve the dispute.
When a participant is without legal representation, the mediator may assist the parties in understanding the terms of any proposed resolution. In order to protect the participants' legal rights, the mediator should encourage the participants to seek independent legal counsel when feasible prior to signing any legally binding agreement.
If the mediator believes that the participants may not be capable of participating in informed negotiations, or if the mediator is asked for professional advice other than relating to the mediation process, the mediator should suggest that the participants seek out appropriate resources. The mediator must disclose any personal or financial interest or relationship if recommending the services of specific professionals.
If the mediator determines that the continuation of the process would harm any participant, a third party (such as children in a marital dissolution matter), or that the integrity of the process has been compromised, the mediator shall inform the parties and, unless the perceived harm is rectified, discontinue the mediation, without violating the obligation of confidentiality.
A. Confidentiality of the mediation process is important to enable a full exploration of issues in dispute, encourage all participants to speak truthfully and candidly, and to reach a complete and satisfactory resolution.
Confidentiality is governed by law as well as ethical practices, an in limited situations, the need for confidentiality may be outweighed by other important public policies, such as the requirement of some professionals to report suspected instances of child abuse. These situations should be narrowly limited to achieve the overriding public purpose. Nevertheless, Family Court Service mediators of child custody matters are required in some counties to make recommendations to Family Court judges if the matter is not resolved in mediation. If such cases are contested, the recommendation is made public and the mediator may be cross-examined concerning it.
If the mediator has established specific exceptions to the general rule of confidentiality which are not covered by statute, these exceptions must be disclosed to the participants prior to reaching an agreement to mediate. The participants must agree in writing to waive confidentiality with respect to those issues.
While use of data and practices concerning mediations is permissible, the mediator shall render anonymous all identifying information when materials are used for research or training purposes.
B. Confidentiality within the mediation process is needed when a mediator uses private caucusing.
In the event that a mediator, with notice to the participants, speaks privately with any participant(s) during the mediation, the mediator shall first discuss his or her policy regarding confidentiality for individual caucuses, and shall not disclose information to the other participants when confidentiality is requested.
A mediator shall mediate only when he or she has the necessary skills to satisfy the reasonable expectations of the parties.
Competence is dependent upon learning to use mediation skills and knowledge effectively. Other attributes (such as communication skills) are useful in effectively assisting others in the prevention, management or resolution of conflict. Measurement of mediator competence should be based upon relevant dispute resolution training, experience and performance.
Competence in mediation is not defined by specific academic degrees or professional licenses. Use of any degree or license as a criterion for determining competence could restrict competent persons from serving as mediators. The freedom of disputants to select their own mediator should not be denied by restricting that choice, as any restriction would be inconsistent with mediation's voluntary nature and would deprive disputants of access to mediators with a rich diversity of occupational backgrounds and mediation styles. Nevertheless, if asked by any participant, the mediator should provide to all participants information on his or her mediation training, education, and mediation experience, as well as the guidelines proposed for the mediation. Furthermore, participants should be encouraged to select a mediator with a demonstrated understanding of both the Communications Act of 1934, as amended, and the rules of the FCC as applicable to amateur radio.
A mediator should possess the skills, knowledge and flexibility to adapt to the context of the dispute, facilitate communication, assist the parties in developing options, and discuss alternatives with participants. A mediator should possess the awareness and experience to assess when he or she (a) is unable to render adequate mediation services, or (b) cannot meet the participants' reasonable expectations. In those cases, the mediator should decline the engagement or withdraw from the mediation.
Every mediator is personally responsible for his or her professional growth. A mediator should endeavor to continually improve and increase his or her knowledge about the practice of mediation and of developments in relevant substantive fields through continuing education, consultation, peer review, and user feedback.
Assessing effective mediation should be a shared responsibility among practitioners, professional organizations, educators, programs and participants. No assessment should be limited to a single mode such as resolution rates.
9. Marketing and Compensation.
A mediator shall be truthful in marketing mediation services and fully disclose applicable fees and charges.
Any marketing or advertising shall be truthful and accurate as to the mediation process, and the mediator's qualifications. It should contain no promises or guarantees of results.
Mediators are entitled to reasonable compensation for their services. Market compensation is appropriate when the participants voluntarily select the mediation process and mediator or provider organization. Mediators are encouraged to consider providing pro bono or reduced fee services to community and court programs in instances where the participants do not have the ability to pay for professional services without undue sacrifice, and when such parties are compelled by laws or court order to enter the mediation process.
Prior to the mediation, the mediator and the provider organization must disclose and explain the basis of any fees, charges or costs. It is inappropriate for a mediator to charge a fee contingent upon the outcome of the mediation.
Except for fees directly related to service provided, a mediator must not solicit nor accept or request any gift, favor or loan of significant value from any participant or affiliate in any pending, scheduled or concluded mediation.
Fees shall be assessed as set forth in the Fee Schedule below. All fee payments must be directed to the ARRL Mediation Service. All filing fees shall be due at the time of filing any document for which a fee is assessed. All hearing fees (including fees for pre-hearing review of evidence by each mediator) shall be submitted at least 1 week prior to the scheduled hearing. The ARRL Mediation Service may waive or reduce required fees in cases of demonstrated hardship.
11. Consequences of Nonpayment
If an applicable fee has not been received at the time of hearing, the mediator shall so inform the parties and may suspend proceedings and order the noncomplying party to pay the postponement fee. If an applicable fee has not been paid within 10 days of the corresponding filing, and no mediator has yet been appointed, the ARRL Mediation Service may suspend the proceedings until payment is received.
The following fees shall be assessed, as applicable, to cover the administrative costs of the ARRL Mediation Service. All fees are non-refundable. All payments must be made directly to the ARRL Mediation Service - NOT to the mediator(s).
Filing of a Mediation Agreement (per party) $25.00 Mediation Fee (per day per party per mediator) $50.00