Draft of Virginia Administrative Dispute Resolution Act
3. General Authority to Use Dispute Resolution Proceedings
- Except as specifically prohibited by law, any public body may use dispute resolution proceedings to narrow or resolve any issue in controversy if the parties agree. Nothing in this chapter shall be construed to prohibit or limit other public body dispute resolution authority. Nothing in this Act shall create or alter any right, action or cause of action, or be interpreted or applied in a manner inconsistent with the Administrative Process Act (Section 9-6.14:1 et seq), with applicable federal or state law or with any applicable requirement for the Commonwealth to obtain or maintain federal delegation or approval of any regulatory program.
- A decision by a public body to participate in or not to participate in dispute resolution proceedings shall be within the discretion of the public body and shall not be subject to judicial review. This paragraph shall not affect or supersede any law mandating the use of a dispute resolution proceeding.
- An agreement arising out of any dispute resolution proceeding shall not be binding upon a public body unless such agreement is affirmed by such public body.
4. Agency Promotion of Dispute Resolution Proceedings
- Each agency shall adopt a policy that addresses the use of dispute resolution proceedings within the agency and for the agency's programs and operations. Such policy shall include, among other things, training for employees involved in implementing the policy of the agency and the qualifications for any neutral to be used by the agency.
- The head of each agency shall designate an existing or new employee to be the dispute resolution coordinator of the agency. The duties of a dispute resolution coordinator may be collateral to those of an existing official.
- Each agency shall review its policies, procedures and regulations and shall determine whether and how to amend any such policies, procedures and regulations to authorize and encourage the use of dispute resolution proceedings.
- An agency may use the services of other agency's employees as neutrals and an agency may allow its employees to serve as neutrals for other agencies as a part of a neutral-sharing program.
5. Interagency Dispute Resolution Advisory Council
- The Interagency Dispute Resolution Advisory Council is hereby created as an advisory council to the Secretary of Administration.
- The Council shall consist of two dispute resolution coordinators from each Secretariat appointed by the Secretary of each Secretariat. It shall also consist of three persons who are not employees of the Commonwealth, at least two of whom shall have experience in mediation appointed by the Governor. The appointees who are not state employees may be made from nominations submitted by the Virginia Mediation Network and the Virginia State Bar and Virginia Bar Association Joint Committee on Dispute Resolution, who shall each nominate two persons for each such vacancy. In no case shall the Governor be bound to make any appointment from such nominations. The Secretary of Administration or his designee shall serve as Chairman of the Council.
- The Council shall:
- Conduct training seminars and educational programs for the members and staff of agencies and public bodies and other interested persons on the use of dispute resolution proceedings.
- Publish educational materials as it deems appropriate on the use of dispute resolution proceedings.
- Report on its activities as may be appropriate and on the use of dispute resolution proceedings, including recommendations for changes in the law to the Governor and the General Assembly.
- Every public body shall cooperate with, and provide such assistance to the Council as the Council may request.
6. Confidentiality Between Parties: FOIA Exemption
- All dispute resolution proceedings shall be subject to the Virginia Freedom of Information Act (Section 2.2-3700 et seq.); provided, however, all confidential materials or communications as set forth in Paragraph B shall be exempt from the Virginia Freedom of Information Act.
- All memoranda, work products, or other materials contained in the case file of a mediator are confidential and all materials in the case file of a mediation program pertaining to a specific mediation shall also be confidential. Any party's lack of consent to participate in the mediation, at any point in the process, is confidential. A written settlement agreement shall not be confidential, unless the parties agree in writing. Confidential materials and communications are not subject to disclosure or discovery in any judicial or administrative proceeding except (i) when all parties to the mediation agree, in writing, to waive the confidentiality; (ii) to the extent necessary in a subsequent action between the mediator and a party for damages arising out of the mediation; (iii) statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation; (iv) where communications are sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against the mediator; (v) where a threat to inflict bodily injury is made; (vi) where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime; (vii) where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during a mediation; (viii) where communications are sought or offered to prove or disprove any of the reasons listed in Section 8.01-576.12 which would enable a court to vacate a mediated agreement, or (ix) as provided by law or Rule other than the Virginia Freedom of Information Act. The use of attorney work product in a mediation shall not result in a waiver of the attorney work product privilege.
Unless otherwise specified by the parties, no mediation proceeding shall be electronically or stenographically recorded.
This page last modified: October 18, 2002