Office of Administrative Hearings Procedures – Part 3

Section 1208 requires any neutral participating in mediation or arbitration pursuant to these regulations to comply in good faith with these standards. A neutral is required indicate compliance on the neutral’s résumé by appending the neutral’s signature on the sentence, which also has to be signed.

In addition, neutrals are required to adhere to the highest standards of integrity, impartiality, and professional competence in rendering their professional service. A neutral must maintain impartiality toward all parties. Impartiality means freedom from favoritism or bias either by word or by action, and a commitment to serve equally the interests of all participants. 

No person is allowed to serve as a neutral in any dispute in which that person, that person’s spouse, or immediate family has any financial or personal interest in the result of the mediation or arbitration, except by written consent of all parties. Upon accepting an appointment, the prospective neutral is required to disclose in writing any circumstance likely to create an appearance or presumption of bias or prevent a prompt meeting with the parties.

A neutral is required to decline appointment, withdraw, or request technical assistance when the neutral decides that a case is beyond the neutral’s competence. A neutral has to maintain professional competence in mediation and/or arbitration skills including at a minimum two specified actions.

A neutral is required to be truthful in advertising and soliciting ADR services. A neutral is required to be candid, accurate, and fully responsive concerning the neutral’s qualifications, availability, and all other pertinent matters.

Section 1210 requires the OAH to maintain a file containing the names and résumés of mediators and arbitrators. Information about these neutrals must be kept on file for a minimum of one year unless the neutral requests in writing to be removed. Neutrals may update their résumés not more than twice in a 12-month period, but must update them annually to remain on file. The file must contain a specified disclaimer.

While resumes must be submitted to a specified web page, these resumes have to include specified information, as well as a statement of compliance with specified regulations. Résumés cannot be advertisements but instead must be factual information pages. The fee schedule specified in the résumé are the fees charged for the duration of any mediation or arbitration agreed to while the résumé is on file.

Section 1212 explains that mediation refers to a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is a voluntary, informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable written agreement.

In mediation, decision making authority rests with the parties. The role of the mediator includes assisting the parties in identifying issues, fostering joint problem solving, and exploring resolution alternatives.

Section 1214 allows party to a dispute to initiate mediation by filing a request for mediation.

Section 1216 permits the parties to agree on a mediator to assist them in the resolution of their dispute. On occasion, parties may not be able to agree on a mediator. In that situation, each party may select 5 names either from the résumés on file with the OAH or from another source. If a mediator is chosen from another source, the party selecting that mediator is required to provide OAH with a résumé of that mediator.

Thereafter, of the names submitted to the OAH by the parties, a complete list is to be complied and sent to the parties by the OAH. Each party may strike 3 names and return the list to the OAH within 10 calendar days. If the OAH has not received notice within this period to strike names, the OAH will assume that all names are equally acceptable. On the next working day after the 10-day period, or as soon thereafter as is practicable, the OAH will choose a mediator at random from the remaining list of names.

Section 1218 provides that compensation of the mediator and any other associated costs are the responsibility of the parties to the mediation. An agreement regarding compensation and costs is required to be reached between the mediator and the parties before the mediation is commenced and must be memorialized in writing.

Section 1220 states that, in consultation with the parties, the mediator must set the date, time and place of each mediation session. The mediation is to be held at any convenient location agreeable to the parties and the mediator.

In addition, mediation is required to be completed within 60 days of the appointment of the mediator. Statutory, regulatory, and other timelines related to the dispute itself will not be affected unless by stipulation of the parties.

Section 1222 requires all involved parties to attend the mediation sessions. A party other than a natural person (e.g., a corporate or governmental entity or association) satisfies this attendance requirement by sending a representative familiar with the facts of the case, and that person has the authority to negotiate and to effectively recommend settlement to the governmental or corporate entity involved.

In addition, any party to the mediation may have the assistance of an attorney or other representative. Other persons may attend only with the permission of all parties and with the consent of the mediator.

Section 1224 requires the mediator to determine the manner in which the issues in dispute are to be framed and addressed. The parties should expect that the mediator will request a pre-mediation statement outlining facts, issues, and perspectives in advance of the mediation session. At the discretion of the mediator, these statements or other information may be mutually exchanged by the parties.

Section 1226 requires confidentiality to be governed by Government Code Section 11420.30, and Evidence Code Sections 703.5, 1152.5, and 1152.6.

Section 1228 requires agreements resolving the mediated dispute to be written, signed, and dated by the parties or an authorized representative of the party or parties.

Section 1230 states that any party or the neutral may terminate the mediation at any time by written notice to the mediator and other parties. If any party or the neutral terminates the mediation, or if mediation does not result in resolution, the parties are required to resume the same status as before mediation and proceed as if mediation had not taken place.

Section 1232 explains that arbitration under these regulations is an adjudicative process in which an arbitrator or panel of arbitrators issues a decision on the merits after a hearing. In general, arbitrations are governed by the APA.

Before the arbitration, the parties are required to agree that the decision by the arbitrator is binding or non-binding upon the parties. If the parties select non-binding arbitration, any party may reject the non-binding decision. If a party rejects the non-binding decision, the parties must resume the same status as before arbitration and proceed as if arbitration had not taken place.

In addition, the arbitrator is prohibited from engaging in private communication with any party upon the merits or substance of the dispute at any time prior to the issuance of the decision.

Section 1234 provides that, at any time prior to a formal administrative hearing, a matter may be referred to arbitration by request. The written consent must indicate whether the arbitration is binding or non-binding. Unless all parties agree to binding arbitration, the arbitration is non-binding.

Section 1236 explains that, once the parties agree to arbitration, they must then confer to select a single arbitrator or, if the parties so agree, a panel of three arbitrators. Unless the parties agree otherwise, selection of the arbitrator must take place within 21 days of the agreement to arbitrate. If the parties are unable to agree to a single arbitrator, then each party may agree to select one arbitrator and the selected arbitrators then select a third arbitrator who acts as chair to the arbitration panel.

Section 1238 states that responsibility for the payment of arbitrator fees and all other costs of the arbitration are to be established by written agreement among the parties and the arbitrator, and executed not less than 10 calendar days before the first scheduled hearing date.

Section 1240 requires the parties and the arbitrator to confer and mutually agree on the date(s) and time(s) for hearing. The date of hearing must be scheduled to commence not more than 120 days after selection of the arbitrator. The hearing may be held at any location within California selected by the arbitrator. In selecting a location, the arbitrator is required to consider the convenience of the parties and witnesses.

Section 1242 provides that discovery must be commenced in arbitration cases by service of requests for discovery. Parties may serve requests for discovery by regular mail or personal discovery, with proof of service, to the last known address of the party served.

In addition, all discovery must be concluded no less than 20 calendar days before the arbitration hearing and may not be reopened after commencement of the arbitration hearing except on order of the arbitrator for good cause shown.

Section 1244 requires the arbitrator to schedule a brief joint conference with counsel for the parties or with the parties themselves, if they are not represented, at least 15 days before the arbitration hearing to discuss matters such as whether the arbitration will be binding or non-binding, allocation of costs and expenses, the procedures to be followed, whether supplemental written material should be submitted, which witnesses will attend, how testimony will be presented (including expert testimony), and whether and how the arbitration will be recorded. 

This conference may be by telephone or any other real-time or simultaneous electronic means. The arbitrator’s costs associated with conducting the conference are to be allocated among the parties, as determined by the arbitrator.

Section 1246 states that, no later than 10 calendar days before the arbitration hearing, each party is required to submit directly to the arbitrator, and serve on all other parties a written arbitration statement by regular mail, facsimile, or other acceptable electronic means, accompanied by a proof of service. The statements must be concise and do four specified items.

Section 1248 states that each party and/or the party’s counsel is required to attend the arbitration hearing. A party other than a natural person (e.g., a corporate or governmental entity or association) satisfies this attendance requirement if represented by a designated legal representative who has immediate access to a representative of the entity.

In addition, the representative of the entity must be familiar with the dispute and have the power and authority to enter into stipulations and binding agreements on behalf of the entity.

Section 1250 explains that arbitrators are authorized to administer oaths and affirmations; make reasonable rulings as are necessary for the fair, impartial, and efficient conduct of the hearing including, but not limited to, granting continuances for good cause shown; and, make Statements of Factual and Legal Basis, Orders, and/or Awards, as appropriate.

The failure or refusal of a party to comply with any lawful and duly noticed order of the arbitrator given prior to or at the hearing is cause for holding that party in default. If a party is held in default, the arbitrator conducts the hearing according to Regulation 1254.

Section 1252 provides that the arbitrator is not to bifurcate the arbitration. Where a panel of three arbitrators has been selected, any two members of a panel constitute a quorum, but the concurrence of a majority of the entire panel is required for any action or decision by the panel, unless the parties stipulate otherwise.

Attendance of witnesses and production of documents may be compelled in accordance with the Government Code. Service of subpoenas may be accomplished by personal delivery with proof of service or service by certified mail, return receipt requested, postage prepaid, to the last known address of the subpoenaed party.

All testimony is required to be taken under oath or affirmation and is subject to reasonable cross-examination. Affidavits submitted must comply with the law. In receiving evidence, the arbitrator must be guided by Government Code Section 11513, but are not precluded from receiving evidence which the arbitrator consider relevant and trustworthy and which is not privileged.

In non-binding arbitration, the proceedings cannot be recorded or reported unless otherwise agreed by all parties. In binding arbitration, a party may cause a transcript or recording of the proceedings to be made and provide a copy to any other party who requests it and who agrees to pay the reasonable costs of having a copy made.

Section 1254 explains that the absence of a party is not grounds for continuance. If a party is not present and that party’s absence is not excused, the hearing may proceed and a default entered against the absent party.

When the matter is heard on a default basis, the party not in default has the burden of proof of affirmative allegations, and affirmative findings are to be based only on the express admissions of the defaulted party, judicially noticeable facts, or on evidence which would support findings of fact in an uncontested civil trial, or any combination.

Section 1256 requires the arbitrator to issue a decision after a completed arbitration hearing under this regulation. The decision must be issued within 30 days after the matter is submitted and contain statements of factual and legal basis, orders, and/or awards.

In addition, an arbitrator may not assess the costs of items previously agreed to in the agreement to arbitrate between the parties. Costs not agreed to by contract of the parties may be awarded in the arbitrator’s discretion.

The arbitrator is required to file the decision with the OAH and serve the decision on all parties, including the agency head, by regular mail, or personal delivery, with proof of service, within 30 days after the matter is submitted. The arbitrator decision becomes effective 30 days after service of the decision upon the parties.

If no party has filed a demand for proceeding de novo, the arbitrator’s decision is final. In binding arbitrations, the statements of factual and legal basis, orders and awards of the arbitrator are final and no proceedings de novo are available.

Section 1258 allows any party to a non-binding arbitration to reject the decision and request a proceeding de novo by filing with the OAH and serving on all parties by regular mail, or personal delivery, with proof of service, a demand for proceeding de novo within 30 calendar days after service of the decision.

If any party files with the OAH and serves the other parties a demand for proceeding de novo within 30 days after service of the arbitrator decision, the action will proceed in the normal course of the administrative proceedings before the respective board or agency. Failure to file and serve a demand for proceeding de novo within this 30 day period waives the right to proceeding de novo.

The contents of a decision issued after non-binding arbitration cannot be disclosed to any judge who might be assigned the case until the action is final or has otherwise been terminated. At the administrative hearing’s proceeding de novo, no evidence is to be admitted concerning the conduct of the arbitration proceeding unless the evidence would otherwise be admissible or the parties stipulate otherwise.

Section 1260 contains the following definitions:

An “Agency” is any board, bureau, commission, department, division, office, officer, or other administrative unit, including the agency head, and one or more members of the agency head or agency employees or other persons directly or indirectly acting on behalf of or under the authority of the agency head.

An “Applicant” is any Person who files with an Agency an application for a Declaratory Decision.

A “Declaratory Decision” is a written opinion containing a statement of undisputed or assumed facts and a determination of issues relating to the application of a state agency rule, regulation, order, statute, or administrative decision as it applies to a Situation in which the Agency has primary jurisdiction.

A “Declaratory Decision Proceeding” is a quasi-adjudicative proceeding to provide an inexpensive and expeditious means for Persons to obtain information as to applicability of Agency administered law to the persons particular circumstances.

A “Person” includes an individual, partnership, corporation, governmental subdivision or unit of a governmental subdivision, or public or private organization or entity of any character having an interest in the application of a rule, order, statute, or administrative decision in a particular Situation. “Person” includes the Applicant, and any intervenors or parties determined in Regulation 1282.

A “Situation” is any undisputed set of facts, actual or hypothetical, to which a rule, order, statute, or administrative decision might apply.