What is Mediation?
Mediation, as many may know, is a confidential process which provides the opportunity for the parties to a dispute or legal action to work with a third-party neutral mediator to resolve the issues. The mediator is not a decision-maker but rather someone who is a trained alternative dispute resolution professional who can provide the facilitation and opportunity for open discussion of the issues. The mediation can occur with the parties in one room; or if necessary two rooms, depending on the circumstances. The mediator also assists the parties in drafting a settlement agreement which is binding on the parties and often made an order of the proceeding.
When involved in an agency hearing, mediation is an important tool for licensees when addressing the potential loss of a license, or discipline within his or her occupation. A trained mediator can provide expertise in the mediation process, help to ensure effective communication, and assist in reducing the stress and adversarial nature of licensing discipline actions. Mediation in Colorado is also governed by the Colorado Dispute Resolution Act, C.R.S. 13-21-301, et.seq., that provides for among other requirements, confidentiality and a fair process by a neutral mediator. Mediators do not communicate with the hearing officer or ALJ involved in the case regarding the mediation other than to indicate whether an agreement was reached or not.
What is the New Law?
On May 29, 2018, Governor Hickenlooper signed into law House Bill 18-1224 (the “Act”), amending portions of the administrative procedures act relating to the hearing process for the imposition of discipline that affects a person’s ability to practice an occupation; and in addition, provides the right to mediation upon the issuance of a notice of hearing; and provides the ability of the licensee to select a public or private mediator, C.R.S. 24-4-105(4)(b). Either the licensee or the agency may request mediation after the licensee receives notice of the hearing. Mediation is then ordered by the administrative law judge involved in the proceeding, and is required to be conducted in good faith.
- Provides that if an agency action is contrary to law, including failing to comply with this section of the Act regarding the new requirement for mediation prior to a hearing, the licensee may petition the ALJ or hearing officer to suspend proceedings and require compliance with the order for mediation to be completed in good faith and as soon as practicable. This means that licensees, including Colorado real estate brokers, are now able to mediate matters brought by the regulatory authority, including the Colorado Real Estate Commission, prior to any hearing and decision.
- Is an important change in that it provides not only that the licensee can request mediation prior to the hearing process (with the exception of summary suspensions), but also that the licensee can select a private mediator. The Act came about in part as there were limited licensee-initiated mediations, and voluntary mediations by mutual agreement were not typically requested. The Office of Expedited Settlement does provide an alternative to litigation where it works with the licensee to accept a proposed sanction in lieu of legal action. The new change in the law creates options for resolution for the licensee, prior to the event of a hearing.
- Applies to hearings brought to discipline the holder of license, registration or certification; to actions to enforce the “State Administrative Procedure Act”; and to judicial review of an agency’s action under pre-existing law, on or after the effective date of the Act. A licensee with a pending agency proceeding may now have this new mediation option available.
When mediation is then ordered by the administrative law judge, the agency must:
- Assign a person with authority to make pre-hearing decisions concerning the disposition of the matter to be present at any meetings related to settlement and mediation communications, and to be included in any material settlement communications with the licensee or the licensee representative; and
- Upon request by the licensee, allow a private or public mediator, chosen by the licensee to be present during meetings related to mediation, and to be included in any material settlement communications with the licensee or the licensee’s representative. If the mediator is privately retained the licensee pays the mediator’s reasonable fees. Administrative Law Judges (ALJ’s) are also available to mediate under this Act as a public mediator without cost to the licensee.
How Does the New Law Benefit Those in a Licensing Dispute?
There is an increasing trend in the Colorado legislature and in Colorado courts is to provide more opportunities for alternative dispute resolution, including mediation. Why is this? Mediation, as noted by the legislature in this Act, saves both the agency and the licensee time and money, while providing a fair and confidential process. The legislature also declared that “the policy of Colorado is to use mediation whenever appropriate to settle disputes between agencies and licensees.”
Can the Licensee Have an Attorney in Mediation?
Attorneys can be present at mediation. Licensees will typically attend mediation with their attorney; however, many licensees do not retain counsel. There is no requirement to have an attorney for mediation. Mediators are not permitted to give legal advice, but will typically suggest the parties have any proposed agreement reviewed by counsel.
Licensees in Colorado will now benefit from policies from our legislature and our courts, which focus on resolving disputes through mediation, and not the adversarial process.
Note: This article should not be construed as legal advice. If you have questions regarding the content of this article or your rights under this Act, please contact an attorney.
Division of Real Estate