Okla. Admin. Code § 260:130-3-2

Current through Vol. 42, No. 4, November 1, 2024

Section 260:130-3-2 - Mediation

(a)General. Mediation provides an opportunity for the parties to present and discuss settlement with each other and a mediator in order to resolve the issues of a complaint. The parties may discuss, negotiate and settle any differences or issues to reach a resolution to the complaint. The Civil Service Division will assign a mediator to the complaint as set forth in 260:130-3-4.

(b)Party responsibility. Each party shall be present and on time. Complainant's failure to do so may result in dismissal of the complaint unless good cause is shown. Each party is expected to negotiate in good faith, without time constraints, and put forth his or her best efforts with the intention to settle, if possible. Even if the parties do not reach a complete settlement, they may reach agreement on various issues.

(1) The complainant shall speak for himself or herself or with the assistance of a Representative.

(2) The Appointing Authority shall send one person to speak and act on behalf of the Appointing Authority with full settlement authority and a Representative.

(3) Each party attending mediation shall have knowledge and the ability to discuss the facts around the action.

(c)Party submissions. At the mediation, each party shall provide to the mediator a proposed settlement offer.

(d)Representation. Each party to the complaint may have a Representative, as defined within these Rules, accompany him or her to the mediation. Representatives will be expected to take an active role in mediation, but will not be allowed to interrogate or question any party. As set forth above in 260:130-1-1, an individual other than an attorney licensed to practice law in the state of Oklahoma may act as the representative of the party if approved by the mediator or ALJ.

(e)Mediator. The mediator shall:

(1) take an active role in the mediation to aid the parties in the discussion of settlement and resolution of the complaint;

(2) have the flexibility to adapt the mediation to the situation at hand;

(3) have the authority to require any party to produce documents, limited to the disciplinary file as defined within these Rules, for review at the mediation if to do so will aid in the discussion of settlement and resolution of the complaint. Documents produced and reviewed at the mediation shall not become part of the complaint record at that time; and

(4) terminate the mediation because of the disruptive behavior or conduct of a party or representative.

(5) approve or deny the attendance of non-participating observers for training purposes;

(6) reschedule the mediation if the party is determined to be impaired or otherwise unable to participate. All parties shall be required to attend the rescheduled mediation. The rescheduling of mediations pursuant to this provision shall conform to the statutory time requirements for conducting a hearing.

(f)Mediation. The mediation shall be informal, structured by the mediator, and not open to the public. The mediation shall be a confidential procedure and shall not be filmed or taped.

(1)Notice. At least seven (7) calendar days before the scheduled mediation, the mediator shall notify the parties of the date, time and location of the mediation.

(2)Location. The mediation shall be held at the appointing authority office or any other location determined appropriate by the mediator.

(3)Witnesses. Witnesses shall not appear or give testimony at the mediation.

(4)Caucus. The mediator may call a caucus at any stage of the mediation.

(5)Continuance. A request for continuance shall be submitted to the mediator in writing no less than three (3) calendar days before the mediation date. The mediator shall follow the requirements of OAC 260:130-5-13 and shall reschedule the mediation ensuring the timing requirements of OAC 260:130-5-13 are followed.

(g)Agreement. If agreement between the parties is reached, it shall be reduced to writing and signed by each party and the mediator. The agreement shall be reviewed and approved by the Civil Service Division Director or his or her designee for complaints arising from termination, suspension without pay, involuntary demotion, or punitive transfer before dismissal of the complaint shall be entertained. The agreement shall become part of the complaint record. All mediation agreements are enforceable by a court of competent jurisdiction.

(h)Conclusion. The mediator shall end the mediation when an agreement is reached and reduced to writing. If an agreement is not reached, the mediator shall end the mediation when he or she determines settlement is not possible, unless sooner terminated for just cause. If agreement is not reached:

(1) a complaint arising from termination, suspension without pay, involuntary demotion, or punitive transfer shall continue on for a prehearing conference and hearing or administrative law judge review.

(2) a complaint arising from written reprimand will be considered closed and the agency's action will stand.

Okla. Admin. Code § 260:130-3-2

Adopted by Oklahoma Register, Volume 39, Issue 07, December 15, 2021, eff. 11/17/2021

Adopted by Oklahoma Register, Volume 39, Issue 24, September 1, 2022, eff. 9/11/2022

Amended by Oklahoma Register, Volume 40, Issue 24, September 1, 2023, eff. 9/11/2023

Amended by Oklahoma Register, Volume 41, Issue 22, August 1, 2024, eff. 8/11/2024