(a) Generally. At any time after the commencement of a proceeding,
the parties jointly may move to defer the hearing for a reasonable time
to permit negotiation of a settlement or an agreement containing
findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be in the discretion of the administrative law judge, after
consideration of such factors as the nature of the proceeding, the
requirements of the public interest, the representations of the parties
and the probability of reaching an agreement which will result in a just
disposition of the issues involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the complaint, order of reference or notice of
administrative determination (or amended notice, if one is filed), as
appropriate, and the agreement;
(3) A waiver of any further procedural steps before the
administrative law judge; and
(4) A waiver of any right to challenge or contest the validity of
the order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representative or their
counsel may:
(1) Submit the proposed agreement containing consent findings and an
order for consideration by the administrative law judge, or
(2) Notify the administrative law judge that the parties have
reached a full settlement and have agreed to dismissal of the action, or
(3) Inform the administrative law judge that agreement cannot be
reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor, the
administrative law judge, within thirty (30) days thereafter, shall, if
satisfied with its form and substance, accept such agreement by issuing
a decision based upon the agreed findings.
(e)(1) Settlement judge procedure; purpose. This paragraph
establishes a voluntary process whereby the parties may use a settlement
judge to mediate settlement negotiations. A settlement judge is an
active or retired administrative law judge who convenes and presides
over settlement conferences and negotiations, confers with the parties
jointly and/or individually, and seeks voluntary resolution of issues.
Unlike a presiding judge, a settlement judge does not render a formal
judgment or decision in the case; his or her role is solely to
facilitate fair and equitable solutions and to provide an assessment of
the relative merits of the respective positions of the parties.
(2) How initiated. A settlement judge may be appointed by the Chief
Administrative Law judge upon a request by a party or the presiding
administrative law judge. The Chief Administrative Law Judge has sole
discretion to decide whether to appoint a settlement judge, except that
a settlement judge shall not be appointed when--
(i) A party objects to referral of the matter to a settlement judge;
(ii) Such appointment is inconsistent with a statute, executive
order, or regulation;
(iii) The proceeding arises pursuant to Title IV of the Federal
Mine Safety and Health Act, 30 U.S.C. 901 et seq., also known as the
Black Lung Benefits Act.
(3) Selection of settlement judge. (i) The selection of a settlement
judge is at the sole discretion of the Chief Administrative Law Judge,
provided that the individual selected--
(A) is an active or retired administrative law judge, and
(B) is not the administrative law judge assigned to hear and decide
the case.
(ii) The settlement judge shall not be appointed to hear and decide
the case.
(4) Duration of proceeding. Unless the Chief Administrative Law
Judge directs otherwise, settlement negotiations under this section
shall not exceed thirty days from the date of appointment of the
settlement judge, except that with the consent of the parties, the
settlement judge may request an extension from the Chief Administrative
Law Judge. The negotiations will be terminated immediately if a party
unambiguously indicates that it no longer wishes to participate, or if
in the judgment of the settlement judge, further negotiations would be
fruitless or otherwise inappropriate.
(5) General powers of the settlement judge. The settlement judge has
the power to convene settlement conferences; to require that parties, or
representatives of the parties having the authority to settle,
participate in
conferences; and to impose other reasonable requirements on the parties
to expedite an amicable resolution of the case, provided that all such
powers shall terminate immediately if negotiations are terminated
pursuant to paragraph (e)(4).
(6) Suspension of discovery. Requests for suspension of discovery
during the settlement negotiations shall be directed to the presiding
administrative law judge who shall have sole discretion in granting or
denying such requests.
(7) Settlement conference. In general the settlement judge should
communicate with the parties by telephone conference call. The
settlement judge may, however, schedule a personal conference with the
parties when:
(i) The settlement judge is scheduled to preside in other
proceedings in a place convenient to all parties and representatives
involved;
(ii) The offices of the attorneys or other representatives of the
parties, and the settlement judge, are in the same metropolitan area; or
(iii) The settlement judge, with the concurrence of the Chief
Administrative Law Judge, determines that a personal meeting is
necessary for a resolution of substantial issues, and represents a
prudent use of resources.
(8) Confidentiality of settlement discussions. All discussions
between the parties and the settlement judge shall be off-the-record. No
evidence regarding statements or conduct in the proceedings under this
section is admissible in the instant proceeding or any subsequent
administrative proceeding before the Department, except by stipulation
of the parties. Documents disclosed in the settlement process may not be
used in litigation unless obtained through appropriate discovery or
subpoena. The settlement judge shall not discuss any aspect of the case
with any administrative law judge or other person, nor be subpoenaed or
called as a witness in any hearing of the case or any subsequent
administrative proceedings before the Department with respect to any
statement or conduct during the settlement discussions.
(9) Contents of consent order or settlement agreement. Any agreement
disposing of all or part of the proceeding shall be written and signed
by a parties. Such agreement shall conform to the requirements of
paragraph (b) of this section.
(10) Report of the settlement. If a settlement is reached, the
parties shall report to the presiding judge in writing within seven
working days of the termination of negotiations. The report shall
include a copy of the settlement agreement and/or proposed consent
order. If a settlement is not reached, the parties shall report this to
the presiding judge without further elaboration.
(11) Review of agreement by presiding judge. A settlement agreement
arrived at with the help of a settlement judge shall be treated by the
presiding judge as would be any other settlement agreement.
(12) Non-reviewable decisions. Decisions concerning whether a
settlement judge should be appointed, the selection of a particular
settlement judge, or the termination of proceedings under this section,
are not subject to review by Department officials.
[48 FR 32538, July 15, 1983, as amended at 58 FR 38500, July 16, 1993;
64 FR 47087, Aug. 27, 1999]
