SETTLEMENT JUDGES Welcome to the Settlement Judge Program of the United States Department of Labor Office of Administrative Law Judges

How do I request a settlement judge conference? To request a settlement judge conference, you may e-mail us at oalj-settlement-judge@dol.gov, or send us a fax at (202) 693-7365, or write to us at Office of Administrative Law Judges United States Department of Labor Suite 400 North 800 K Street, NW Washington, DC 20001-8002 When making the request, it is important that you provide the OALJ Case Number (e.g., 1999-LHC-3000), and state the position of the other party or parties to the proceeding because settlement judge conferences require the voluntary participation of all parties to the matter. It is also very helpful to provide the telephone and fax numbers of the various representatives or pro se litigants so that the settlement judge appointment and conference can be facilitated. The sample form below may be used for requesting a settlement judge, but there is no requirement that this form be used. Adobe PDF Version HTML Version For more information, call the Office of the Chief Administrative Law Judge at (202) 693-7542. What is a settlement judge proceeding? A settlement judge proceeding is court-sponsored mediation. A settlement judge is an administrative law judge familiar with the procedure and subject matter of Department of Labor adjudications, and trained in alternative dispute resolution techniques. The settlement judge is authorized to consult with the parties and assist them in resolving a dispute without the need for a formal administrative hearing. Settlement judge conferences are off-the-record, and are relatively informal in comparison to the normal hearing process, which is similar to a trial. The settlement judge adjusts his or her role to the circumstances of the case, and may act as a moderator, facilitator, and intermediary. The settlement judge will focus on realistically assessing the prospects of each side to the dispute, the risks and costs of further litigation, the interests of the parties, and the benefits each side can gain through settlement. The settlement judge may meet with counsel both together and separately. Follow-up conferences may be conducted. Because settlement judges are also administrative law judges, they likewise benefit from the provisions of the Administrative Procedure Act that protect ALJs from improper influences and ensure independence from the agency. Thus, settlement judges are strictly impartial and will not act as an advocate for any party -- although he or she will undoubtedly be a determined advocate for settlement of the case. There is no guarantee, however, that a particular case will settle, and a settlement judge will not attempt to force any party to settle. Settlement judge proceeding are based on the voluntary participation of the parties. If at any time a party concludes that he or she no longer wishes to pursue the settlement judge process, the matter is referred back to the administrative law judge assigned to preside over the formal hearing. The duration of the settlement judge's appointment is limited in order to prevent the settlement judge procedure from contributing to administrative delay, and to ensure that a formal proceeding will follow forthwith if a settlement is not reached. If the parties and the settlement judge agree that additional fruitful negotiations are possible, however, the settlement judge's appointment may be extended. Is a fee charged for the settlement judge's services? No. The Department does not charge fees for the services of a settlement judge. What cases are eligible? Most types of cases heard by OALJ are eligible for a Settlement Judge conference. Those that are not eligible or appropriate for ADR include black lung claims and appeals of denials of permanent alien labor certification. In addition, the Pension and Welfare Benefits Administration prefers to use its own highly successful internal ADR process in cases involving civil money penalties imposed pursuant to ERISA § 502(c)(2) and (i). Settlement judges are frequently used in areas such nuclear and environmental whistleblower complaints, OFCCP actions, and JTPA disputes. In 1999, the procedure was extended for use in longshore workers' compensation cases. [See Chief Judge's letter to Longshore bar [PDF format]. Settlement judges are not available in longshore cases while the matter is still pending before OWCP. Are settlement judge conferences confidential? Although settlement judge conferences will be kept confidential to the extent possible, participants should be aware that there are circumstances in which disclosure of information from a settlement judge conference may be required by operation of law or ordered by a court. Confidential documents provided in settlement judge conferences are exempt from disclosure under FOIA. See 5 U.S.C. § 574(j). If a discovery request or other legal process is made on a settlement judge regarding a confidential communication made during the settlement judge conference, the settlement judge will make reasonable efforts to notify the parties and any affected nonparty participants of the demand, to provide them with an opportunity to defend a refusal of the settlement judge to disclose the requested information. See 5 U.S.C. § 574(e). Please note, however, that if the party or affected nonparty participant does not make an offer to defend, they will be considered to have waived any objection to disclosure. See 5 U.S.C. § 574(e). The Department of Labor's settlement judge rule describes, in part, the limits of confidentiality at 29 C.F.R. § 18.9(e)(8). Importantly, under the Department of Labor rule, the settlement judge is prohibited from discussing any aspect of the case with the presiding judge, and no evidence regarding statements or conduct in the settlement judge proceedings will be admissible in the instant proceeding or any subsequent administrative proceeding before the Department, except by stipulation of the parties. For more explicit detail on the limits of confidentiality in administrative alternative dispute resolution programs, however, see this excerpt from The Department of the Air Force's Mediation Guidance Handbook. Parties concerned about limitations on confidentiality should take note that since the settlement judge program was established in 1993, no settlement judge has been the subject of a discovery request for confidential information concerning a settlement judge conference. What happens if a settlement is reached? If a settlement is reached, the settlement will be treated as would any other case that is settled without of the services of settlement judge. Department of Labor proceedings vary considerably in how settlements or consent findings are handled. In addition, the agreement of the parties itself may affect whether the settlement or consent findings must be submitted to the presiding ALJ. Some whistleblower cases, for example, must be reviewed and approved by the presiding ALJ and/or the Administrative Review Board, before the case is dismissed from the adjudicatory docket. In other types of cases, the settlement may require the presiding judge to approve consent findings. In still other types of cases, it may be sufficient for the parties to simply stipulate to dismissal of the ALJ hearing. The settlement judge should be able to assist the parties in determining on the requirements for reporting a settlement. What happens if the parties are not able to settle the case? If a settlement conference is unsuccessful, or only partially successful, the case is returned to the presiding administrative law judge without comment, and the formal hearing process continues. REFERENCES Settlement Judge Rule, 29 C.F.R. § 18.9(e) The Administrative Dispute Resolution Act, Pub. Law 101-552 and Pub. Law 102-354, as amended by Pub. Law 104-320 Administrative Dispute Resolution Act of 1996, P.L. 104-320, 110 Stat. 2870 (Oct. 29, 1996) Amendment to OALJ Rules of Practice: Final Rule, Use of Settlement Judges in Longshore and Related Proceedings Before the Office of Administrative Law Judges, 64 Fed. Reg. 47087 (Aug. 27, 1999) HTML Version PDF Version Final Rule, OSHRC, 29 CFR Part 2200, Rules of Procedure, 64 Fed. Reg. 8243 (Feb. 19, 1999) OSHRC will require "Settlement Part Judge" referral of all cases where penalty proposed is $200,000 or greater. One year trial regulation. OALJ's settlement judge rule, in contrast, is entirely voluntary. Notice, Expanded Use of Alternative Dispute Resolution in Programs Administered by the Department of Labor, 62 Fed. Reg. 6690 (Feb. 12, 1997) Board of Contract Appeals Alternative Dispute Resolution Sharing Arrangement Use of Settlement Judges in Proceedings Before the Office of Administrative Law Judges; Final Rule, 58 Fed. Reg. 38498 (July 16, 1993) Use of Settlement Judges in Proceedings Before the Office of Administrative Law Judges; Notice of Proposed Rulemaking, 58 Fed. Reg. 3822 (Jan. 11, 1993)