Mediation is a process in which parties attempt to resolve a dispute, with the assistance of a trained, neutral, third-party mediator. Mediation is only binding if the parties reach an agreement; the mediator cannot impose an agreement or solution on the parties. The Board offers mediation services in an effort to find common ground between shippers and transportation providers. These services have resulted in the resolution of a number of disputes that otherwise would have had to be adjudicated, saving parties involved time and money.
Mediations are usually conducted by Board staff who have had mediation training. If mediation is unsuccessful, Board mediation staff are recused from working on the formal proceeding. This means that they are not permitted to discuss the case with anyone else at the Board.
In recent years, the STB has contracted with a separate agency, the Federal Mediation and Conciliation Service (FMCS), to help conduct mediation. In these instances, FMCS will assign one of its highly-trained mediators to serve as the mediator on behalf of the Board, while members of the Board staff will assist the mediator by providing subject matter expertise. Many of the mediations in which the FMCS has been involved have resulted in settlements and so it is likely that the Board will continue using FMCS mediators where possible.
Parties involved in a formal proceeding before the Board always have the option of voluntarily requesting mediation. In addition, the Board has the authority to direct parties in certain formal proceedings to mediate – with or without the consent of the parties. The Board also requires that parties involved in a dispute over railroad rates must engage in mediation at the beginning of the case. (Mediation is not available in Board proceedings in which the agency is required to grant or deny a license or other regulatory approval or exemption, and those that involve labor protection.)
The mediation process is governed by a strict confidentiality policy, which is set forth in the Alternative Dispute Resolution Act (5 U.S.C. § 574(a)-(b)) and the Board’s rules (49 C.F.R. § 1109.3(d) and § 1109.4(e) [copy provided above under “Resources”]). At the beginning of mediation, the parties are required to sign an Agreement to Mediate, in which they agree to adhere to the Board’s confidentiality rules.