Mediation Services – Say What?

The OPEN Government Act of 2007 amended the Freedom of Information Act (FOIA), in part, to create OGIS. In establishing OGIS’s mission, the newly amended FOIA directs OGIS to offer “mediation services” to resolve disputes between FOIA requesters and Federal agencies.

Seems straightforward, right? An agency or a requester approaches OGIS with a problem related to a FOIA request, OGIS offers “mediation services,” a lawsuit is avoided, and everyone walks away happy. As the OGIS staff opened the office and established procedures for doing our work, we discovered that there is no simple definition for “mediation services.”

Alternative Dispute Resolution (ADR) — the discipline encompassing mediation — has grown rapidly in recent decades in response to dissatisfaction with the litigation process. Mediation is what comes to mind for most people when they think of alternatives to litigation. Considering this, why don’t we at OGIS simply offer mediation for FOIA requesters and agencies that find themselves in a dispute?

We often say that we at OGIS had to figure out how to do our work while doing our work — FOIA disputes awaited OGIS Director Miriam Nisbet the day she opened the office. We were able to learn first-hand what our customers need and how we can best serve those needs. In handling our early cases, we discovered that while mediation may be useful in some situations, other customers had issues that could be resolved using a less formal (and less expensive) process.

In recognition of this need, we interpreted the term “mediation services” to include three separate processes:

• Formal mediation, which uses an outside neutral (a mediator) who assists parties in reaching a mutually agreeable solution;
• Facilitation, in which an OGIS staffer (facilitator) facilitates communication between the requester and the agency, helping them to reach a mutually agreeable solution without the perceived formality or cost of mediation; and
• Ombuds services, an informal role in which the Office receives complaints and offers advice and a listening ear.

So far, we have found that these three OGIS processes meet the needs of our customers. However, we know that the world of FOIA can be unpredictable, so we look forward to continuing to fine tune our services to meet the needs of our customers.

How do you think we could better meet the needs of our customers? We’d love to hear your thoughts in the comments.