49 CFR Part 1109 — Use of Mediation in Board Proceedings

PART 1109—USE OF MEDIATION IN BOARD PROCEEDINGS Authority: 49 U.S.C. 1321(a) and 5 U.S.C. 571 et seq. Source: 78 FR 29083, May 17, 2013, unless otherwise noted. § 1109.1 Mediation statement of purpose, organization, and jurisdiction. The Board favors the resolution of disputes through the use of mediation and arbitration procedures, in lieu of formal Board proceedings, whenever possible. Parties may seek to resolve a dispute brought before the Board using the Board's mediation procedures. These procedures shall not be available in a regulatory proceeding to obtain the grant, denial, stay or revocation of a request for construction, abandonment, purchase, trackage rights, merger, pooling authority or exemption related to such matters. The Board may, by its own order, direct the parties to participate in mediation using the Board's mediation procedures. The Board's mediation program is open to all parties eligible to bring or defend matters before the Board. § 1109.2 Commencement of mediation. (a) Availability of mediation. (1) Pursuant to a Board order issued in response to a written request of one or more parties to a matter; (2) Where the Board orders mediation by its own order; or (3) In connection with a rate complaint, as provided by § 1109.4 and part 1111 of this chapter. (b) Requests for mediation. § 1109.3 Mediation procedures. (a) Mediation model. (1) No person serving as a mediator may thereafter serve as an advocate for a party in any other proceeding arising from or related to the mediated dispute, including, without limitation, representation of a party to the mediation before any other federal court or agency; and (2) If the mediation does not fully resolve all issues in the docket before the Board, the Board employees serving as mediators may not thereafter advise the Board regarding the future disposition of the remaining issues in the docket. (b) Mediation period. (c) Party representatives. (d) Confidentiality. (1) All parties to Board sponsored mediation will sign an Agreement to Mediate. The Agreement to Mediate shall incorporate these rules by reference. (2) As a condition of participation, the parties and any interested parties joining the mediation must agree to the confidentiality of the mediation process as provided in this section and further detailed in an agreement to mediate. The parties to mediation, including the mediator(s), shall not testify in administrative or judicial proceedings concerning the issues discussed in mediation, nor submit any report or record of the mediation discussions, other than the settlement agreement with the consent of all parties, except as required by law. (3) Evidence of conduct or statements made during mediation is not admissible in any Board proceeding. If mediation fails to result in a full resolution of the dispute, evidence that is otherwise discoverable may not be excluded from introduction into the record of the underlying proceeding merely because it was presented during mediation. Such materials may be used if they are disclosed through formal discovery procedures established by the Board or other adjudicatory bodies. (e) Abeyance. (f) Mediated settlements. (g) Partial resolution of mediated issues. [78 FR 29083, May 17, 2013, as amended at 91 FR 4854, Feb. 3, 2026] § 1109.4 Mandatory mediation in rate cases to be considered under the stand-alone cost methodology. (a) Mandatory use of mediation. (b) Assignment of mediators. (c) Party representatives. (d) Settlement. (e) Confidentiality. (f) Mediation period. (g) Procedural schedule. [78 FR 29083, May 17, 2013, as amended at 82 FR 57378, Dec. 5, 2017] § 1109.5 Resolution of certain disputes involving the State Sponsored Route Committee and the Northeast Corridor Commission. (a) In addition to the mediation procedures under this part that are available following the filing of a complaint in a proceeding before the Board, Amtrak or a State member of the State Supported Route Committee established under 49 U.S.C. 24712 may request that the Board informally assist in securing outside professional mediation services in order to resolve disputes arising from: Implementation of, or compliance with, the cost allocation methodology for State-Supported Routes developed under section 209 of the Passenger Rail Investment and Improvement Act of 2008 or amended under 49 U.S.C. 24712(a)(6); invoices or reports provided under 49 U.S.C. 24712(b); or rules and procedures implemented by the State Supported Route Committee under 49 U.S.C. 24712(a)(4). With respect to a particular dispute, such a request for informal assistance in securing outside professional mediation services may be submitted to the Board: (1) In the absence of a complaint proceeding before the Board; or (2) If, while a formal complaint is pending before the Board, a motion is filed in that formal proceeding requesting that it be held in abeyance in light of the request for informal assistance. (b) In addition to the mediation procedures under this part that are available following the filing of a complaint in a proceeding before the Board, the Northeast Corridor Commission established under 49 U.S.C. 24905, Amtrak, or public authorities providing commuter rail passenger transportation on the Northeast Corridor may request that the Board informally assist in securing outside professional mediation services in order to resolve disputes involving implementation of, or compliance with, the policy developed under 49 U.S.C. 24905(c)(1). With respect to a particular dispute, such a request for informal assistance in securing outside professional mediation services may be submitted to the Board: (1) In the absence of a complaint proceeding before the Board; or (2) If, while a formal complaint is pending before the Board, a motion is filed in that formal proceeding requesting that it be held in abeyance in light of the request for informal assistance. (c) A request for informal Board assistance in securing outside professional mediation services under paragraph (a) or (b) of this section shall be submitted by letter duly authorized to be submitted to the Board by the requesting party. The request letter shall be addressed to the Director of the Board's Office of Public Assistance, Governmental Affairs, and Compliance, and shall include a concise description of the issues for which outside professional mediation services are sought. The Office of Public Assistance, Governmental Affairs, and Compliance shall contact the requesting party in response to such request within 14 days of receipt of the request. [81 FR 85904, Nov. 29, 2016]

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