Parties in FAA administrative hearings may use mediation to resolve their case.  Mediation is voluntary and does not waive the right to a hearing if the matter is not resolved.  Starting the process is as easy as sending a short request to the FAA Office of Adjudication, as explained below.

Types of Cases Using Mediation

Regulations specifically allow the use of mediation in the following types of aviation matters: 

• Civil penalties, in cases before a DOT administrative law judge under 14 CFR Part 13, subpart G;
• Informal hearings before an administrative judge under 14 CFR Part 13, subpart D, which relate to:
  • Proposed orders of compliance
  • Proposed cease and desist orders
  • Proposed orders of denial
  • Some proposed orders suspending or revoking a certificate of registration, and
  • Other matters that do not provide a specific administrative hearing process.

How Mediation Works

Mediation works by having a neutral person—called a mediator—help the parties negotiate the outcome of their case.  Mediation is a voluntary alternative to having a judge hear the evidence and decide the outcome.  Unlike a judge, a mediator does not decide the case.  Instead, the parties decide their own future by reaching a mutual settlement agreement or by ending the mediation so that the judge can decide the case.

The parties choose their mediator. 

The FAA’s Office of Adjudication offers the services of experienced, impartial mediators at no cost to the parties.  Alternatively, the parties can choose their own mutually acceptable mediator from other sources.  Regardless of the source, professional mediators are specifically trained in helping the parties express their views, listen to the other side’s views, consider relevant issues, and identify options for an agreeable outcome.  

Different from Prior Negotiations  

Mediation often works even when the parties previously tried negotiating without a mediator.  Mediators bring a new perspective, can ask hard questions of both sides, help consider the answers, and hold private discussions.  Through the mediations process, settlement becomes more likely when parties:

• Learn new things about their case;
• Identify misunderstandings;
• Gain a new level of trust in the process; and,
• Know that somebody—especially the other party—listened to them.

Confidential under the Law

A statute called the Administrative Dispute Resolution Act of 1996 protects “dispute resolution communications” from unauthorized disclosure.  See 5 USC § 574 for details.

With or Without Lawyers

Whether in a hearing or a mediation, lawyers provide their clients with valuable advice, counsel, and advocacy.  If a party has a lawyer, the party would participate in the mediation with its lawyer.  However, a party is not required to have a lawyer in 14 CFR Part 13 proceedings.  

Voluntary Resolution

The terms of settlement agreements can vary.  While both parties can hope for a “complete victory,” in reality, many cases will settle somewhere between what both sides see as appropriate.  The parties must assess for themselves—often in private discussions with a mediator—the strength of the evidence, financial impact, time, effort, and cost to litigate.  The mediator cannot require a party to settle a case, and parties are free to end a mediation at any time.

Mediating is not a sign of weakness.

At first, some people think that offering or agreeing to mediation is a sign of weakness.  They believe that expressing a willingness to just talk about the case suggests that they do not believe their case can succeed if it goes to a hearing.  Nothing is farther from the truth.  Using mediation does not signal weakness but rather shows reasonableness and business acumen that could save time, money, and effort.  

What happens with the judge while the mediation is in progress?

Adjudication before the judge and mediation are separate processes.  Parties often ask a judge to give them time to focus on the mediation by granting a delay or timeout to the adjudication schedule.  The judge has the discretion to grant such a request but is not obliged to do so.  When judges grant delays, they usually give a limited period of time, depending on the complexity of the matter and other factors.

If the parties can resolve their case, they usually file a motion to end the adjudication before the judge.  If they do not resolve the case, they inform the judge so that the adjudication can continue.

Mediators serve only as mediators.

The role of the mediator is different from that of a judge, arbitrator, witness, or attorney-advisor.  

Mediators often discuss laws and facts with the parties.  They can also provide legal information and express their views on the case.  But they do not represent either party, nor do they form an attorney-client relationship with either party.  

Without the power to decide the case, mediators clearly are not judges or arbitrators.  In fact, FAA regulations expressly state that a mediator must not participate in the adjudication of any matter in which the mediator provides mediation services.  See 14 CFR §§ 13.69(a) and 13.236. 

Getting Started

If parties wish to use an experienced mediator from the FAA Office of Adjudication, a simple letter will start the ball rolling.  The parties should jointly send their letter requesting mediation to the Director of the Office of Adjudication:

Office of Adjudication
Federal Aviation Administration
800 Independence Avenue, SW
Washington, DC 20591
Attention: Director, AGC-70, Wilbur Wright Building – Suite 2W100

To avoid delays, send the letter as a PDF attachment to an email addressed to 9-AGC-FAA-HearingDocket@faa.gov.  The letter will not be “filed” with your case record unless required by law.

The letter should:

• Be addressed to the “Director of the Office of Adjudication”;
• State the case name and docket number(s); 
• Come from the representatives of the requesting parties;
• Identify all lawyers who represent the requesting party; and,
• Include contact information like email and phone numbers for all representatives and lawyers.

The letter must not:

• Discuss the facts or details of the matter.  (The mediator will have plenty of time to understand the facts and details.  The Director of the Office of Adjudication does not want nor need those details to offer a mediator.)

In most cases, the parties will hear from a mediator within a few days from sending their letter.  The mediator will have some preliminary conversations (jointly or separately) with the parties to answer questions about the process.  The mediator will help the parties write a joint mediation agreement that defines the process and procedures they will use.  The parties are free to use the designated mediator or obtain one from other sources.