USDA Agricultural Mediation Program


by Chester A. Bailey

September 2004

I. Introduction

The Farm Service Agency (FSA) administers the United States Department of Agricultures (USDA) Mediation Program. Section 502 of the Agricultural Credit Act of 1987 (Pub. L. No. 100-233, January 6, 1988) authorized the Secretary of Agriculture to help States develop USDA Certified State Mediation Programs and to participate in USDA Certified Mediation Programs.

State Mediation programs are developed to assist agricultural producers, their creditors, and other persons directly affected by the actions of the USDA to resolve disputes thereby reducing the participant's cost associated with administrative appeals, litigation, and bankruptcy. The USDA Mediation Program gives farmers and ranchers a confidential way to resolve disputes involving farm loans, conservation programs, wetland determinations, rural water loan programs, grazing on national forest system lands, pesticides, and other issues determined by the Secretary of Agriculture. Mediation services can include counseling and financial analysis to prepare parties for the mediation session.

Agricultural mediation is a way of settling disputes within a producers own means. The program provides a neutral mediator that can sit down or work on the phone to resolve very sticky issues. Instead of years it can take for a case to filter through the courts, the mediation process generally takes a few meetings to complete.

II. History of the USDA Mediation Program

The USDA Certified State Mediation program was designated as a state's go-between for farmers with delinquent and distressed loans. The program aims to help borrowers and creditors resolve their disputes before they reach bankruptcy or litigation.

The mediation program is designed to give farmers and ranchers a confidential forum to work out differences concerning their business operations. Many farmers and ranchers will be uneasy if they don't have some assurance that the mediation will be confidential. All mediation documents are not to be used for any other legal action. This is one of the key requirements for state mediation certification. Confidentiality is the glue that makes mediation work.

Section 502 of the Agricultural Credit Act of 1987 (Pub. L. 100-233, January 6, 1988) authorized the Secretary of Agriculture to help states develop USDA Certified State Agricultural Loan Mediation Programs. This Act authorized an appropriation of $7,500.000 for each of the fiscal years 1988 through 1991 with matching grants limited to the lesser of 50% or $500,000 each year of the cost of any State program.

The Food, Agriculture, Conservation and Trade Act of 1990 (Pub. L. No. 101-624, November 28, 1992) extended this authority through fiscal 1995. The USDA Reorganization act of 1994 extended this authority through fiscal year 2000.

The Agriculture Credit Improvement Act of 1992 (Pub. L. No. 102-554, October 28, 1992) raised the matching grant level from 50% to 70%. Section 282 of Title II of the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 (Act) (Pub. L. No. 103-354, October 13, 1994) expanded the State Loan Mediation Program to include: wetland determinations, conservation compliance, agricultural credit, rural water loan programs, grazing on National Forest System lands, pesticides, and other issues the Secretary deems appropriate. Section 275 of the Act requires that if a USDA Certified State Mediation Program is available as part of the informal hearing process, the appeal participant will be offered mediation.

The United States Grain Standards Act of 2000 (Pub. L. 106-472), enacted on November 9, 2000, authorized the mediation program through fiscal year 2005. This law also clarified that grant funds appropriated by Congress to the mediation program must be used for farm credit cases and may be used for other USDA program disputes, and clarified that mediation services may include financial advisory and counseling services (as appropriate) performed by a person other than a State mediation program mediator to prepare parties to a dispute prior to mediation.

A. Certification of State Mediation Programs

FSA has a special procedure to help States develop mediation services. Under Federal Regulation 7 CFR 785, FSA officials determine whether a State program meets the following requirements:

1. August 1 of each year the Governor or designated state agency head notifies FSA Administrator of its interest to be certified and to be eligible to receive matching Federal support funds for their state mediation program.

2. The program provides mediation services to agricultural producer, creditors and other persons directly affected by the actions of the Department of Agriculture to help them reach mutually agreeable settlement of their disputes.

3. The program is authorized or administered by an agency of the State Government or by the Governor.

4. The program provides training for mediators.

5. The program provides that the mediation process be confidential.

6. The program ensures that all lenders and borrowers of agricultural loans and in cases of other issues covered by the mediation program that persons directly affected by actions of the Department of Agriculture receive adequate notification of the mediation services available.

B. Matching State Grants

If all the conditions are met, the FSA Administrator may certify the states agricultural mediation program and provide matching funds for up to $500,000 or 70% (whichever is less) of the operating and administrative costs of the program. These funds are to be used to pay the staff salaries, office expenses, supplies, training, travel, clerical support, and administrative costs necessary to provide mediation services.

Matching mediation grant funds are processed at the FSA National Office. This delegation of authority was previously established with the Assistant to the Assistant Administrator, Farmers Home Administration, Farmer Programs. The purpose of this delegation was to provide a neutral source of authority separate from the loan making and servicing program divisions.

The grant funds are disbursed monthly or quarterly from the National Office as states use their funds and request the matching funds. Checks are forwarded by Certified Mail along with the mediation work papers to the FSA State SED for delivery to the state mediation officials.

III. What is Mediation?

Mediation is a process in which a trained, impartial person, a mediator, helps people look at their mutual problems, identify and consider options, and determine if they can agree on a solution. A mediator has no decision making authority. Unlike a judge or an arbitrator, a mediator cannot decide what is right or "make" anyone do anything. Successful mediation is almost always based on the voluntary cooperation and participation of all the parties.

USDA enters mediation to explore all the options to help agricultural producers, their creditors, and other persons directly affected by the actions of the USDA to resolve disputes and reduce cost associated with administrative appeals, litigation, and bankruptcy.

In mediation, USDA representatives will try to set a positive, constructive tone, encouraging others to do the same. This is done to provide a positive atmosphere for good settlements.

Mediation can be requested by agricultural producers, their creditors, and other persons directly affected by the actions of the USDA at any time, but usually mediation occurs after a USDA official advises the USDA customer that mediation services are available before taking formal adverse action. The customer usually has a limited period of time to request mediation or waive the opportunity to use the service.

If mediation services are requested, the state mediation service contacts the requesting party to get a complete list of potential participants and their addresses and suggests steps the participants should take to prepare for mediation. The mediation service then assigns one or more mediators to the case.

Participants may select or eliminate the mediators offered by the mediation service. Once a mediator selected, all potential participants are advised that a mediation process is being started. If a meeting is scheduled, the parties are informed of the time, place, and nature of the mediation process. Ground rules are set to ensure that the conference is productive.

Once an agreement is reached, the mediator makes sure that it is in writing, is signed, and made available to all participants. If an agreement is not reached, the case is closed, all parties are advised of the outcome, and all remain free to pursue other legal courses.

A. Rights and Responsibilities

Participants using mediation will find the process fair to both sides of the dispute. Mediation does not produce miracles and cannot be used to force the participants to do or see things differently. Mediation does not favor one side or the other, but helps both consider their situation reasonably. The main idea is to provide a low cost alternative to expensive, lengthy litigation or bankruptcy.

B. Decisions That Can Be Mediated

Generally a participant will be offered the right to mediate any issue that is appealable. The following are examples of issues that can be mediated if an applicant guaranteed lender, loan note holder, borrower, or grantee is directly and adversely affected by an adverse decision:

  • documentation and calculations necessary to determine program eligibility

  • calculations and documentation to determine ability to repay farm loan program assistance, either in connection with loan servicing or a request for a new loan

  • all matters relating to fair application of regulations pertinent to determination of an issue of fact

  • whether the producer is farming in a workmanlike manner

  • appraisals of security during farm loan program and loan serving. The participant bears the burden of showing why the appraisal is in error.

C. Decisions That Cannot Be Mediated

The following issues cannot be mediated:

  • formula used to calculate payments

  • requirement that a producer provide a cash flow statement

  • demand the loan or other assistance be provided to a type of organization not identified as an eligible participant under the applicable regulations

  • demand for program assistance denied because of confirmed income that is above the program thresholds under applicable public law

  • determination of ineligibility for program assistance on basis of a confirmation or verification provided by another Federal Agency

  • interest rates set forth in procedures and guidelines, except that denial of limited resources rates, or alleged use of an incorrect interest rate may be mediated

  • denial of program assistance because of a conviction under Federal or State Law for planting, cultivating, growing, producing, harvesting, or storing a controlled substance

  • program decisions based on clear and objective statutory or regulatory requirements

  • requirements and conditions designated by law to be developed by Federal agencies. These include but are not limited to flood plain determinations; archaeological area preservation requirements; designation of areas that have been determined to be inhabited by endangered species.

IV. Requesting Mediation

The participant is responsible for contacting the Certified State Mediation Program that mediates Agency issues. The Certified State Mediation Program will make all arrangements for the mediation process. The Agency notification to a participant concerning the mediation will indicate how the participant should contact the Certified Mediation Program to exercise the mediation option, including any applicable forms required by program procedures. If the Certified State Mediation Program does not offer mediation for the specific issue in question, the participant can request mediation through the Agency, that will:

  • determine whether Agency financial resources are available for mediation

  • locate and select a mediator

  • provide the participant notice of the mediation.

If the participant objects to the selected mediator, the participant may request that another mediator be selected. A participant must request mediation within 30 calendar days after the date that written notice of the Agency=s decision is mailed or otherwise made available. A participant may exercise the option to mediate a particular issue only once during the Agency=s appeal process.

V. Mediation Process

The mediation process is a step-by-step determination of where you are, where you want to go, how you wish to get there, when you want to arrive, who will do the work, and how much you are willing to pay.

The mediation process is goal oriented and focuses on specific measurable action. It is based on available and factual information and assumptions regarding the future of all participants. It clarifies relationships, promotes understanding of established objectives, and assigns specific responsibilities, tasks, and time schedules. It includes orderly reviews of progress by the disputants.

Mediation is based upon a problem solving process that is conducted by a neutral, impartial, mediator in a neural setting. Mediation takes time and commitment from all involved. However, since the parties control the results of mediation (what is agreed to) there is generally much greater satisfaction with the results of obtained than is the case for appeals or litigation. In mediation, everyone wins.

Mediation takes time and commitment from all involved. However, the time it takes to mediate a dispute is usually much less than the administrative appeal process. The mediator helps participants disclose what the values and beliefs of the participants are and how the mediation session will be conducted. With these statements in mind, an overall mission or purpose can be developed.

A. Location and Facilities for Mediation

Use an informal meeting site away from the participants' place of business for the mediation sessions. Time should be scheduled when all participants can be present.

B. Mediator's Role

The mediators role is to lead the participants and help make the participants' discussion easier. The mediator must be perceived as impartial and neutral. The mediator assists in planning the agenda, setting up equipment, and maintaining the climate of the meeting.

The mediator establishes the ground rules for the mediation sessions, maintains the participants focus, and encourages participation to be creative. The mediator leads the mediation process, suggests ways to proceed, finds and defines points of agreement and disagreement, restates comments through active listening, but does not evaluate ideas as good or bad.

Keep in mind the following guidelines for starting a mediation session:

- Don't suggest or feel that you have all the information or answers to the dispute.

- Mediation is a process that may take time.

- Start simple and build on a few ideas at first.

- Develop successes at the beginning of the initial meeting that are measurable.

- Realize that it may take several meetings before an agreement becomes a reality.

C. Participants Duties

Gather all relevant documents to the dispute. For agricultural producers, the appropriate FSA staff will help farmers and ranchers put their production and/or financial information into a plan describing how the farming or ranching operation might work in the future. Agricultural management analysis services are provided by most of the 30 USDA certified state programs through "quasi-contractual" agreements between their programs and their state departments of agricultural. FSA employees must be considerate and understanding of producers that chose to use services of their state government or private consultants to resolve agricultural disputes. After all, it is their family life and business that is at stake.

Make a list of all participants including appropriate creditors, business partners, relatives and USDA officials who should be involved in the mediation. All monetary and non-monetary obligations affecting the dispute should be considered. By bringing all the involved participants together at once, mediation can help to ensure that all the pertinent information and points of view will be considered at the same time. That can save a lot of time and effort compared with working things out with participants one by one.

Consider what is most important to the other participants of the dispute. What options are there? What are the alternatives if an agreement cannot be worked out? What family members should come to the mediation sessions? Who should be consulted before a final agreement is made? What USDA agencies have or will likely render an adverse determination as a result of actions taken or to be taken by the producer?

Keep an open mind. An idea might develop which has not been considered. Mediation is not a formal procedure, but it can help resolve very difficult problems if everyone approaches it with a constructive attitude.

Identify all relevant information that may help resolve the dispute. For example, in a credit dispute it will not help a major creditor to make a deal which falls apart because another major creditor was not participating.

Determine what bargaining authority the representatives to the mediation session have. Can the representative at the mediation agree to a settlement, or must the deal be approved by someone else. If representatives do not have full authority, all parties need to know this up front.

Assess the value of the assets on hand including formal contracts and other written agreements and consider various options and scenarios.

D. Developing Ideas and Solutions

Brainstorming is a tool used throughout the mediation planning process. This is useful in allowing everyone to have a say. At different points in the planning process, the mediator will engage the participants in a brainstorming session. The mediator states his fundamentals and rules for use at this point.

Brainstorming stimulates creativity and brings out ideas that might otherwise be overlooked. It is a way to generate as many ideas as possible, without judgement. Ideas must be related to the dispute problem, cause, or solutions.

Some general rules for participants in mediation might be:

- Participant should not be interrupted.

- No criticism or comments are allowed by other participants, either positive or negative including body language, laughing, or sighting, etc.

- All ideas are listened to, no matter how strange they may seem

- Record all ideas in full view.

- Note taker writes ideas exactly as stated, without paraphrasing.

- Participants may pass. If several participant pass, open discussion to all participants.

- Evaluate after the brainstorming session.

- Review for clarity, then combine, rewrite, add, or eliminate as decided by the participants; and condense to a handful of ideas chosen to be most useful.

Some general processing ideas are provided as follows:

- Give participants ample time to think through their ideas and suggestion.

- Go round robin.

- Get active participation from all participants.

- Take breaks to revitalize the thinking process.

- Present ideas in a conversational manner, brief and on the issue.

- Listen attentively to all participants and don't interrupt.

E. Steps in mediation

The mediation process is often described as containing a number of distinct steps, even though the process is flexible enough to allow changes to fit the situation at hand. One possible description of the steps in mediation is described as follows:

1. Step I- Getting an Agreement to Mediate a Dispute

Step I begins by making all participants familiar with the mediation planning process. A commitment to mediate must be made. Each Participant represents the interest of its family, business partners and organizations. Mediation planning may mean choosing a different direction and making some changes in the participant's way of doing things. Making changes requires commitment from all affected participants. It is important during this step that everyone is working with the same facts and assumptions. The facts and assumptions of the participants need to be discussed so everyone knows and understands them.

Roles and responsibilities of each participant may need to be clarified by the mediator as follows:

- Participants represent a range of interest and concerns. Each participant must respect the other participants and expect the same in return.

- No single participant has all the answers. Participants must listen carefully to each other, make statements that will educate or explain the situation. Ask for clarification if necessary.

- Participants should state needs, problems, and opportunities and be frank and constructive in the discussion.

- Discussions will be reached by mutual agreement. Participants agree to disagree to support open discussion of issues.

General rules for starting the a mediation session include:

- introducing the participants.

- stating the purpose of the meeting.

- providing an agenda for the mediation planning session.

- identifying the steps to the planning process to the participants.

- explaining the role of the mediators.

- explaining the role of the note taker (if available).

- explaining each participants commitment to mediate in good faith.

- asking what the participants would like to accomplish.

- agreeing to the form of written agreement if one is developed.

2. Step II- Gathering Facts for a Mediation Meeting

Two sets of facts will be needed by the participants. The first set is extended or outside the control of the participants. The second is internal and concerns the factors the participants can control.

The mediator in some cases may choose to research which external, internal trend, or other topics may be useful to the participants' mediation planning efforts. Information packets concerning these topics can be prepared and distributed well in advance of the mediation meeting. Topics can then be discussed by the mediation participants with little loss of time. This gives participants time to think about the implications ahead of time and participants don't have to read while solutions are explained.

Statistical tables, graphics, and documents can be prepared that tell the story clearly and quickly. Studies, feasibility plans, extension information, court records, university research articles can be sources of information.

The external evaluation is a consideration of the forces and trends beyond the control of the participants. Stockholders in the agreement such as relatives, business partners, government, and lenders are also part of the external environment. The internal factors include the resources under the control of the participants. These are factors the participants can change.

Participants should not rely on perceptions alone during the evaluation of internal factors to a dispute. Participants should use real or numerical data whenever possible. Start simple and build on a few ideas first. Examples of internal factors include income, expenses, value of assets, market prices, interest rates and participants experience and history.

3. Step III- Evaluating Mediation Information

The participants must decide on the basic purpose of the mediation process. The basic assumption is that the affected participants must mutually agree to the agreement to be agreed upon. When an agreement has been established, a close and critical analysis of its strengths and weakness is done by the participants. Any resource persons invited to the mediation session can provide insight to the participants. Brainstorming can be useful at this point. No opportunity to solve the dispute should be overlooked.

The mission and purpose of mediation planning are based on information that is fact and true. Because the information is considered true, it provides a basis from which to make decisions, select options, and develop a plan of action.

Participants may assume that everyone feels as they do and conflicts arise in discussions when differences in assumptions and values arise. Assumptions should be discussed and not taken for granted by other participants. Assumptions should be discussed by the participants so they can determine how new information is interpreted.

Options often involve conflicts of issues such as to what ends the options may lead and who will benefit. Alternative options are those fundamental policies, problems, or opportunities that could be costly if the participants took no action to resolve the dispute.

Two concerns must be addressed when examining options. First, can the participants do something about the dispute? Second, what are the consequences of not addressing the options? If There are no consequences, there are no options.

Mediation should focus on options, not answers. Participants should consider only one solution to the dispute at a time. Participants should ask questions instead of making direct assertions and support every solution with evidence that will support the solution.

This step is very fluid and frequently requires a neutral mediator to ensure that all ideas are presented, and acted on in a fair manner.

4. Step IV- Writing a Mediation Agreement

Certain options may become clear to participants by the end of the mediation planning session. The discussion may not be easy for the participants. The strongest option may be negotiated or discussed until everyone feels comfortable with the solution.

Every participant has a goal but without a formal plan of action, these goals may not be written and implemented. The mediator is responsible for carefully written statements of goals, objectives, and activities. The written agreement needs to be consistent with the identified needs of the participants. The written agreement should state what the participants want to achieve and have a clear finish line.

The written agreement can be a barrier and hard to implement. The mediator must reframe from using unfamiliar terminology that will result in participants misunderstanding the final outcome. The Mediator must keep the wording simple so that the participants will commit to a fast implementation and completion goal.

5. Step V- Implementation of a mediation agreement

Implementation action should be started immediately upon signing of the mediation agreement. Despite the best agreement, changes may occur. Being alert to these changes, and determining revisions to the agreement will improve the participants chances for a successful recovery. Mediation planning is an alternative event. Participant in mediation, like any skill, will improve with practice. All mediation takes planning, implementation and evaluating to obtain the desired results.

An unaddressed dispute or opportunity could saddle potential participants with unbearable administrative cost and litigation. It is critical to examine the consequences of not addressing the issues in a dispute.

VI. Mediation Results

Since August 1988 USDA has obligated over $29 million for USDA Certified State Mediation Programs. Last fiscal year 30 States participating in the mediation program requested $4,871,994 in matching grant funds. The FY 2004 Appropriation Act provided $3.9 million for State mediation grants. In FY2003 mediation grant requests were prorated at 81.5 percent to give all States the same percentage of available grant funds. States participating in the FY 2004 mediation program budgeted over $2 million as their match for the USDA Mediation Matching Grant Program for a total program budget of over $6.8 million.

State Mediation Grants have enabled a number of States to develop programs to deal with conflicts involving distressed agricultural loans. The Department of Agriculture Reorganization Act of 1994 expanded the program from farm credit cases only, to include disputes concerning wetland determinations, conservation compliance, pesticides, and other agricultural issues. Operated primarily by State universities or departments of agriculture, the program provides neutral mediators to assist producers, primarily small farmers, in resolving disputes before they culminate in litigation or bankruptcy. Moreover, this program supports FSA’s initiative to achieve savings through alternative means of dispute resolution since mediation, at $687 to $700 per case, offers significant savings over national level administrative hearings, which cost about $3,000 to $4,000 per case.

The USDA Agricultural Mediation Program has been very effective in resolving FSA program disputes at the field level. FSA’s most frequent domestic program conflicts include: Conservation Reserve Program payment eligibility/limitation (farms, ranchers & third parties), Highly Erodible Land/Water Conservation Program requirements (producers), price support payments (farmers and ranchers) Farm Loan and Servicing Programs (farmers, ranchers and guaranteed lenders), and Production Flexibility Contracts (farmers, ranchers & third parties). The most difficult disputes to resolve involve the Farm Loan Programs (60%). The Conservation Reserve Program (20%) and Production Flexibility Contracts (20%) involve the second and third highest level of domestic disputes in FSA.

The annual funding for mediation has been $3 million to $4 million for agricultural loan mediation only. With the program now greatly expanded beyond agricultural loans to a variety of USDA programs benefiting individual farmers, ranchers, and rural communities, it is expected that funding will become a critical issue for many States now considering developing a State mediation program.

VII. National Performance

The USDA Agricultural Mediation Program was cited for its efficiency and effectiveness in Vice President Gore's Report of the National Performance Review, Creating a Government that Works Better and Costs Less. The program was singled out as an example of activities which Agencies throughout the Federal government should use more frequently. USDA customers will view the mediation as "putting them first" and cutting red tape. Government employees will be empowered by a process (mediation) that allows them to remain in control at the local level.

End Notes The National Association of State Departments of Agriculture (NASDA) policy statement dated February 2003 supports the expansion of agricultural mediation. NASDA reported that funding of the State Certified Agricultural Mediation Programs is more important now than ever. NASDA stated that the State Certified Agricultural Mediation Programs have played a significant role in resolving agricultural credit and other disputes. NASDA’s policy statement supports the expansion of the state mediation program and urges that risk management/crop insurance, civil rights, rural housing and other rural development issues be added to the programs currently authorized under the mediation expansion. NASDA further urged the expansion of mediation to include other federal agencies which play a role in land and resource management, including the Department of Interior and Army Corps of Engineers.

The States participating in the USDA Certified State Mediation Program for fiscal year 2004 are Alabama, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Louisiana, Kansas, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming.

Web Sources on USDA Certified State Agricultural Mediation: http://www.fsa.usda.gov/outreach/mediation.htm http://www.fsa.usda.gov/pas/publications/facts/html/mediate03.htm http://agecon.nmsu.edu/mediation/CAMP.htm http://www.ceris.purdue.edu/fedweb/0209/10/0000.html http://www.usda.gov/directives/files/dr/DR4710-001.htm

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Biography




Chester A. Bailey is the manager of the United States Department of Agriculture (USDA) Agricultural Mediation Program administered by the Farm Service Agency (FSA) Outreach Staff, Washington, D.C. Since 1994, Bailey has managed the USDA Agricultural Mediation Program that has been located at several levels of FSA including the Farm Loan Program, the former Corporate and Advisory Staff, the Appeals and Litigation Staff, the former FSA Executive Director Office for State Operations and currently with the FSA Outreach Staff.

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Website: www.fsa.usda.gov/outreach/mediation.htm

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