Mediation
There are two primary settings in the Firm’s practice which involve formal mediation which will be addressed here. Members of the Firm are actively involved in mediation activities on a regular basis. Mediation is an arena where the attorney’s reputation and credibility are absolutely critical. Education of the mediators as to the issues, as well as preparation of the Licensee for a face to face meeting are extremely important. An effective attorney must not only possess communication skills, but also experience, understanding, and creativity.
Mediation involving state licensing matters are held at the State Office of Administrative hearings (SOAH). Once a licensing agency has provided an opportunity to a licensee to show compliance with the statute and rules of the agency, typically through an Informal Settlement Conference (ISC) or “show cause” proceeding, if a matter is not dismissed or resolved by agreement, the licensee has a right to a formal hearing (trial) with rules of evidence and procedure before an Administrative Law Judge (“ALJ”). This hearing is docketed and conducted as a trial by SOAH. As a part of the SOAH process, mediation is allowed by consent of the parties (the Agency and the Licensee). This mediation occurs before the hearing and may even occur prior to discovery. It is intended to save the parties time, money, and the uncertainty of a hearing’s outcome. Mediation is conducted in a traditional manner, with SOAH mediators who, though not assigned as hearing judges on the contested case at hand, have experience hearing cases as well. Representatives of the licensing agency, the licensee, and the attorneys for both parties meet together in a neutral setting to seek a resolution of the case. The proceedings are confidential and may not be used for any purpose if the case fails to settle and proceeds to hearing. Mediation is usually very successful in reaching resolution though less so in matters where there is stringent and wide disagreement as to the facts or legal interpretations on issues.
Mediation is not subject to any rules of evidence or procedure, and in fact much of the success of the mediation depends on the parties’ preparation and the ability to communicate and persuade the opponents regarding the particular strengths and weaknesses of a specific case. Strategically, the practitioner’s legal counsel and the practitioner must be prepared to adjust to different viewpoints or settlement offers (and to foresee the effects of any settlement) made throughout the mediation process. Mediators may help move the parties to an agreeable resolution but cannot force the parties to agreement. Lack of resolution puts the parties back into the formal hearing process before an ALJ who will hear evidence and ultimately render a recommendation to the licensing board, referred to as Proposal for Decision.
Texas law also provides a right to physicians to demand mediation in a medical staff peer review proceeding. As Texas law does not specify at which stage of the process it may be conducted, hospital medical staff bylaws will usually specify the procedural stage for mediation. Sometimes the mediation is afforded prior to the peer review fair hearing, sometimes afterwards. There are benefits and risks to both procedural alternatives. The hospital or entity is required by law to mediate if requested by the provider, but it is not required to reach agreement. Depending upon the reasonableness of the parties and the dynamics of internal medical politics, mediation in the medical staff peer review process either can be extremely successful or disappointing. Generally, each side pays for part of the mediation costs.
Sharp & Cobos, L.L.P. is a boutique law firm handling all types of Administrative Law cases in Austin and throughout Texas. Our Austin Health Law Attorneys represent licensed professionals in proceedings before licensing boards, hospitals, and other third-party entities. Call (512) 473-2265 to have your case reviewed by an experienced Austin Administrative Law attorney at Sharp & Cobos, L.L.P.
