11 AAC 114.350. Mediation

(a) If the commissioner's decision under 11 AAC 114.335 or 11 AAC 114.345 disapproves the district plan or significant amendment, in whole or in part, the district may

(1) amend the district plan or revise the significant amendment to comply with the commissioner's directive; or

(2) submit the disapproved portion to mediation as set out in (b) - (i) of this section.

(b) Before the mediation session, the office may call for a public hearing in the district to discuss the part of the plan or significant amendment subject to mediation. The office shall issue public notice of the hearing at least 30 days before the hearing. Upon request and consistent with AS 44.12.320 - 44.12.340, a district shall provide translation into and out of a Native language prevalent within the district. The public hearing must be electronically recorded. A person may submit oral or written testimony. The oral and written testimony constitutes the hearing record, which shall be transmitted to the mediator.

(c) Parties to the mediation are the office and the district. The parties shall, within 10 days after the date of the commissioner's decision under 11 AAC 114.335 or 11 AAC 114.345, agree upon the selection of a mediator. If the parties cannot agree, the parties shall immediately, in writing, ask the Federal Mediation and Conciliation Service to appoint a mediator. If that mediator is unacceptable to either party, that party shall request the Federal Mediation and Conciliation Service to submit to the parties the names of three qualified mediators. Upon receipt of these names, each party shall strike one name from the list and the remaining name shall be the mediator. If each party strikes the same name, the Federal Mediation and Conciliation Service shall select the mediator from the remaining two names. A mediator shall perform duties in a manner consistent with the standards of conduct set out in the Code of Professional Conduct for Labor Mediators, set out as an appendix to 29 C.F.R. Part 1400 (July 1, 2003), adopted by reference.

(d) A mediation session must be held within the district. The mediator shall schedule a session, with due regard for the convenience of the parties, upon at least seven days' notice, except that the parties may, by mutual consent, waive the notice period. The parties shall mutually agree upon the place of the meeting.

(e) The mediator shall schedule the first mediation session to be held as soon as possible after the mediator has been selected. At the initial session, the mediator shall establish reasonable rules of procedure. A mediation session must be conducted in a manner so that the parties are assured and confident that information disclosed to the mediator will remain confidential. The mediator shall determine the length and frequency of a mediation session. If an accord is not reached within 60 days after the initial session, the mediator shall declare an impasse, except that the parties and the mediator may agree to extend the 60-day period by no more than 30 days.

(f) If the mediator determines that an impasse has been reached, the mediator shall notify the parties in writing within 10 days after the determination is made.

(g) If the mediator determines that an accord has been reached, the mediator shall direct the parties to set out in writing the terms of the agreement. This agreement signifies the final agreement of the dispute, subject to review and approval of the commissioner and to review and ratification by the district at a public meeting within 20 days after the parties reach the accord. With the approval of the parties, mediation may be used to resolve a difference that may arise as the result of the commissioner's review or the district's public meeting. After approval by the commissioner and ratification by the district, the agreement may be set aside only for fraud, misconduct, or gross mistake.

(h) If the accord reached under (g) of this section becomes binding, the office shall, within 20 days after approval by the commissioner and ratification by the district, distribute a modified commissioner's decision that reflects the accord to the district and each person who was served with the commissioner's decision under 11 AAC 114.335(h) or 11 AAC 114.345(1) and shall place the modified decision in the record file. The modified decision will contain findings and conclusions, based on the record file and additional material presented during mediation, necessary to demonstrate that the modified decision is consistent with AS 46.40, this chapter, and 11 AAC 112.

(i) If a binding accord is not reached under (g) of this section, the commissioner will, consistent with AS 46.40.060 (c), enter a final order resolving the dispute as the commissioner determines appropriate.

History: Eff. 7/1/2004, Register 170

Authority: AS 46.39.010

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