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Legally Speaking

 

Issue: December, 2006
Author: Lucy Pauley

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Wyoming's Agriculture and Natural Resource Mediation Program

• A borrower is referred to a financial analyst to help develop a financial plan. Through the mediation process, the borrower and FSA loan officer settle on a plan that allows the borrower to avoid foreclosure.

• The mediation coordinator receives a request and sets up a technical review team (TRT) to look at a Forest Service grazing allotment. Based on the TRT report, the grazing permittees and USFS district manager agree to changes in the permit that protect the resource and allow grazing to continue.

• A mediated family meeting is held to discuss the parents’ plans for distribution of the family ranch. The family reaches an agreement outlining the key elements of an estate plan to distribute the ranch assets when the parents die.

• A split estate conflict arises. The mediator helps the parties resolve a surface use agreement dispute to ensure the economic development of the coalbed methane while minimizing disruption of the agricultural operation.

These are a few of the examples of mediations carried out under the Wyoming Agricultural and Natural Resource Mediation Program created by the Wyoming Legislature in 1987. Under the statute, mediation is a voluntary and confidential process in which a trained, neutral third party, the mediator, meets with primary decision-makers to help them develop a mutually satisfactory agreement.


The Program’s Background

During the first half of the 1980s, Wyoming's farmers and ranchers—like agricultural producers throughout the U.S.—faced severe financial stress. A 1984 survey of Wyoming's farmers and ranchers indicated that 44% suffered net losses in their operations. Another 20% had net income under $5,000.

These numbers, though dramatic, do not fully capture the emotional as well as the financial pressure faced by Wyoming's producers during this period. A number of private, nonprofit and public organizations sprung up to provide emotional and financial counseling to Wyoming's rural residents. Starting in 1986, one private, nonprofit organization, the Wyoming Rural Support Network, hosted several meetings on the agricultural debt crisis. Nedalyn Testolin, the Network's director, was a strong supporter of the use of mediation. Through the meetings, the Network met with agriculturalists, agricultural lenders, and legislators and obtained support for the use of agricultural mediation to help resolve credit disputes.


Adoption of Wyoming's Agriculture Mediation Act of 1987

Encouraged by the response, the Network worked with state legislators to develop a state agricultural mediation act. The legislation focused exclusively on mediating agricultural credit disputes. It established a three-member board within the governor’s office to oversee the program. Participation in mediation under the 1987 Act was strictly voluntary, which remains true today.

In 1993, oversight of the Wyoming Agriculture Mediation Board moved from the governor’s office to the Wyoming Department of Agriculture. In 1998, the Legislature greatly expanded the program to include rural water loan programs, grazing on public lands or other agricultural or natural resource issues. This amendment also increased the number of board members from three to six, including the director of the Department of Agriculture or his designee.

In its 2005 session, the Legislature passed a split estate bill. The bill included language addressing conflict resolution procedures including mediation. W.S § 30-5-402 gave the Board responsibility to provide mediators to assist parties in resolving surface use agreement conflicts.


Mediation and Technical Assistance

Parties initiate mediations by submitting a written request. The program’s coordinator then contacts the other parties to determine their willingness to participate. Then the coordinator provides the parties with a list of certified mediators in their area or if the parties agree, assigns a mediator to the case.

In carrying out mediations under the Agriculture and Natural Resource Mediation Program, mediators contract directly with the parties. Typically the parties sign an agreement to mediate with the mediator. This agreement specifies the subject material, payment terms, and other information regarding the process.

The Board’s rules require potential mediators to complete an initial 30-hour training course and an eight-hour recertification class every two years. Under W.S. § 11-41-105(d) mediators acting under the statute are immune from any civil liability for any "good faith" act or omission. Additionally, W.S. § 11-41-106 makes “all documents and discussions…. confidential” and “[a]ll data regarding the finances of individual borrowers and creditors which is created, collected and maintained by agricultural mediators and which are not already matters of public record…confidential and …not public records…”

Today, there are more than 50 individuals on the program’s roster. These mediators are located statewide and have a variety of backgrounds, including representatives from government agencies, farmers and ranchers, University of Wyoming faculty and staff, attorneys, and professional mediators.


Technical Review Teams (TRTs)

In 1998, the Board developed a new program to provide parties with technical review teams to assist in resolving natural resource conflicts. Today, TRTs are used most frequently to address grazing disputes on USFS and BLM lands. The team reviews the grazing allotment and develops a list of recommendations for the permittee and the agency. While the TRT requests have been primarily limited to grazing disputes, the potential exists to use the process for any type of natural resource dispute with a scientific question at the heart of the conflict.


OPPORTUNITIES AND CHALLENGES

Opportunities - During the past two years, the program has offered recertification training workshops for its mediators that also qualified for CLE credit. Similarly, a number of Wyoming attorneys have taken the Board’s basic mediation training.

The coordinator has also supplied attorneys with names of certified mediators to assist parties in working out legal conflicts. These conflicts have ranged from contract and lease disputes to negotiations over split estate concerns. Frequently, the program receives requests for mediations outside of the natural resource arena, usually for workplace or organizational conflicts. In those cases, the coordinator puts the parties in contact with mediators or other organizations providing those services.

Challenges - Mediation is traditionally conducted by parties rather than their attorneys. Attorneys play a vital role in advising their clients throughout the process. Mediators often will stop a mediation to permit clients and their attorneys to caucus and will ask the attorneys to work with the mediator in drafting the final agreement.

Some attorneys expect mediators to provide parties with insight into how their case might be resolved if it went to court. Mediation literature refers to this as an “evaluative” style. The program’s mediators do not use this style. Most of the mediators are neither lawyers nor technical experts; their expertise is in the mediation process. Mediators help the parties find their own solution but do not render a decision regarding past actions.

The key challenge is finding additional ways to work with the Wyoming State Bar and other organizations to promote the effective use of mediation in the state. Not all disputes should be mediated, but more public education needs to be done on the value of the process. There is also the need for more attorney mediators to be on the program’s roster to be available to mediate certain issues. Mediation is slowly growing in the state but the Wyoming Agriculture & Natural Resource Mediation Program recognizes that there is still a lot of work to be done.


Lucy Pauley is the coordinator for the Wyoming Agriculture & Natural Resource Mediation Program, a service of the Wyoming Department of Agriculture. Lucy has worked for the Department of Agriculture since 1997. She graduated from the University of Wyoming in 1995 with a B.S. in Animal Science and in 2004 with a Masters of Public Administration. Lucy can be contacted at (307) 777-8788 or by e-mail at lpaule@state.wy.us.


Copyright © 2006 – Wyoming State Bar

     

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