Accredited Certifiers
Association
P.O. Box 85, Mabel, MN 55954
(844) 783-7974
www.accreditedcertifiers.org
Utilizing Mediation and Settlement Agreements
Questions and Answers
Resources
Version # 3
Revised August, 2018
Utilizing Mediation and Settlement Agreements
Table of Contents
Topic
Page
Background Information
1
The Adverse Action Process
3
Questions and Answers
4
Mediation and Settlement Agreement Resources
10
Settlement Agreement Template A
11
Settlement Agreement Template B
12
Settlement Agreement Template C
16
Acceptance of Mediation Request & Proposed Settlement Agreement or
Mediation Scheduling Template
18
Mediation Accepted and Settlement Agreement Template
21
Sample Mediation FAQ
23
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Utilizing Mediation & Settlement Agreements
Originally drafted 7.19.2016
Updated 10.10.2017
Updated 8.14.2018
Background
An ACA Working Group convened in 2016 to discuss the topic of Mediation and Settlement
Agreements and the many questions regarding implementation of these practices in the
noncompliance process. The group noted that individual state regulations may have specific
requirements for the mediation process in that state.
The National Organic Program (NOP) encourages the use of mediation and settlement
agreements by certifiers as an alternative to having operations appeal to the NOP or to
facilitate a quicker outcome. Certification agencies also recognize that the suspension process
utilizes extensive staff labor, and in an effort to reduce the number of suspensions, other
means can be used to conclude the noncompliance process, such as mediation leading to a
settlement agreement.
The group determined that since certification agencies have similar but different systems that
are currently working for their agencies, discussing of areas in question and providing
information on the experiences of others would be the most beneficial outcome. The Q & A
format is used. In addition, the Mediation and Settlement Agreement Resources section
includes tools and resources to assist agencies with this process, including templates for
Settlement Agreements and a sample FAQ document for certified operations.
This document was originally compiled by an ACA Working Group in July of 2016, and it has
undergone two rounds of NOP feedback and successive revision since then. Initial changes
(2017) included clarification that mediation must be requested in writing, even for
noncompliances that are simply related to late paperwork updates or payment of fees.
Revisions also clarified what is meant by formal and informal mediation. The working group
had originally described informal mediation as suitable for addressing administrative issues
and low-level organic integrity issues, available at the verbal request of the operator. Formal
mediation was described as the most suitable pathway for addressing major areas of
noncompliance, requiring a request from the client in writing. However, the NOP has clarified
that formal mediation simply refers to mediation activity using an outside mediator; there are
no other stipulations. Conversely, informal mediation does not use an outside mediator.
Other circumstances related to the nature of the noncompliance, or the methods by which
the mediation is conducted, do not have an effect on whether the mediation is classified as
formal or informal.
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This two-level mediation process is supported by NOP Training for certifiers:
NOP Training Slide 2014, Appeals Update
The original working group also noted that state certification programs, while they may have the
assistance of their legal department, may also have more rigid policies regarding the mediation
process and may not have the flexibility of choosing between formal and informal mediation.
Mediation processes may begin informally and proceed to formal mediation if a settlement
agreement cannot be reached using informal mediation. If mediation is offered by the certifier, they
must proceed to formal mediation if requested by the operator. Mediation may be terminated by
the certifier if the operator refuses to agree to a compliant course of action or if the operator
becomes otherwise uncooperative. In general, as long as the mediation process is moving forward
and progress is being made, then the process should continue. If certifiers see barriers to this
process, they should contact their Accreditation Manager to make sure next steps are acceptable.
Most recent revisions (2018) clarify and emphasize that settlement agreements are an
outcome of the mediation process and that a settlement agreement is not to be offered
before mediation is requested. Additional revisions related to timelines and procedures are
included in this updated version.
The Questions and Answers that follow are based upon the Adverse Action process as
depicted below.
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The Adverse Action Process
Notice of Noncompliance Issued
(including combined notices)
Resulting in:
•
No corrective action proposed by an operation
•
Corrective action is not completed within an established timeframe
•
Rebuttal of the NONC is unsuccessful
ACA Issues Adverse Action
Operator requests
mediation
Operator accepts
adverse action
Operator appeals to NOP
ACA accepts mediation
ACA rejects mediation
Either formal or
informal mediation
ACA proposes
settlement
agreement
Outcomes:
• Operator accepts settlement agreement.
• Operator proposes amendments to the
settlement agreement.
• Operator requests further mediation.
• Operator appeals to NOP.
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Questions & Answers
A. What can a mediation request look like?
1) Can a request for mediation be verbal?
Not solely. Per §205.663, mediation requires a written request to the certifier. In
the instance of an informal mediation, a written request is still required. It is not
sufficient to accept a verbal request and then document the outcome, regardless of
the nature of the Noncompliance. It can be acceptable for certifiers to send the
operator a letter with a checkbox where the request is documented. However,
these forms need to be legally defensible; it is recommended that certifiers send
draft forms to NOP prior to use for confirmation of acceptability.
An ACA’s internal policies should specify the methods by which written requests for
mediation can be documented (i.e., email, fax, letter from operator, form letter
with checkbox or other).
2) If the operator simply submits missing information, can this be interpreted as a
mediation request?
No. The client should be contacted to determine whether they understand the
mediation or appeal options to address the adverse action. Requests for
mediation must be made in writing. (See question # A1.) If a request for
mediation is not clear, the certifier should seek additional confirmation in
writing to clarify that mediation is being requested.
B. What can an informal mediation look like?
1) Can we proactively offer a settlement agreement ahead of receiving a mediation
request?
The settlement agreement is an outcome of mediation. ACAs cannot send the
operator a settlement agreement that includes a statement such as, “by signing
and returning this agreement you are agreeing to the mediation requirements.
However, ACAs could include a statement in the Proposed Suspension that says,
“Mark this box if you want to engage in mediation.”
ACAs should only offer a settlement agreement after receiving a mediation request.
2) Can informal mediation be conducted on the phone and/or by e-mail?
While the mediation can be conducted on the phone and/or by email, the final
settlement must be agreed to by both parties and documented in writing.
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3) Should ACAs document the details of the mediation session?
All the details of the mediation process should be documented, including the dates
of phone calls or emails, and included with the settlement agreement, or in the
event that the mediation failed, the communication sent to the client identifying
next options.
C. Process Questions
1) Should we opt for informal or formal mediation?
The internal policies of the ACA should specify criteria for accepting/rejecting
mediation and whether the mediation would be informal or formal. The
determination of whether the mediation is informal or formal is generally made on
a case-by-case basis; considerations could include logistics, the likelihood of
reaching a satisfactory outcome, and the costs associated with each type.
Some examples of issues that may be suited for informal mediation include:
Not submitting updated OSP by deadline
Late payment of fees
Requests for additional information from certifier not addressed by client
Some examples of issues that may be better suited for a more formal mediation
process include:
Issues involving organic integrity
Repeating noncompliances for the same issue
Issues of communication or interpersonal conflicts between certifier and
operator
2) If informal mediation is not working what are the options?
● Keep talking
● Client can request formal mediation involving a third party
● Client can abandon mediation efforts and accept the original adverse
action, or appeal to NOP
● Certifier can end mediation process (in cases where clients is
unresponsive or refuses to come into compliance)
3) If we have accepted informal mediation, can we refuse a request for formal
mediation?
The internal policies of the ACA should specify criteria for rejecting mediation. If the
ACA determines that an operator is unwilling to comply with the National Organic
Standards, they can reject a formal mediation request. Otherwise, requests for
formal mediation should be accepted by the certifier.
4) How might we assess fees for mediation/settlement work?
Any fees to be charged for the mediation/settlement agreement process should be
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outlined in the mediation acceptance letter. The settlement agreement should include
details of any fees to be charged for follow up activities, such as compliance inspections
or testing.
The determination of whether to charge for the mediation/settlement process
varies from agency to agency. Some assess an hourly administrative fee, travel
expenses, and mediator fees (generally for outside third party mediator).
5) Can an updated certificate be issued while continuing with the noncompliance,
mediation, settlement agreement process?
Yes. Certifiers are required to continue providing certification services during
the mediation and appeals process.
6) What tools may be used to avoid going to Notice of Proposed Suspension?
Additional phone contact (multiple) by agency staff; explain the options in
more detail, including the impact of ignoring the noncompliance
Additional inspection to obtain the information, with client covering costs
Remind clients if they have a noncompliance from last year that is pending
inspector verification this year
7) What is the time line involved with Mediation?
The Regulation has no set time line between agreeing to mediation and starting
the mediation; however, in the interest of customer service certifiers may wish to
establish an internal policy for this.
Applicants or certified operations filing an appeal must do so within 30 days from
the date of the written notification of rejection of the request for mediation.
There is also no time line specified for the actual length of the mediation process once
mediation has started. In general, the process should continue as long as the operator
is responsive and progress is being made.
Following the mediation and offer of the final settlement agreement, the operator
has not more than 30 days to sign and execute the settlement agreement.
If mediation is unsuccessful, the applicant or certified operation has 30 days
from the termination of mediation to appeal.
8) What if an operation surrenders in the midst of the mediation process?
An operation can voluntarily surrender at any time; if surrender is chosen after
proposing an adverse action, ACAs must indicate to the operation that the adverse
action process must continue to conclusion. The adverse action process could
result in the operation being suspended even though they have surrendered. The
act of the suspension would ensure that the operation would be required to
correct the noncompliances and proceed through the reinstatement process.
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For issues concerning operators not submitting updated OSPs or paying
certification fees, some ACAs have issued an adverse action, which would permit
mediation or appeal, and also issued a settlement agreement that includes
surrender. Surrender must be voluntary; operators would be required to indicate
they wish to surrender.
D. What constitutes a qualified mediator?
Qualified Mediator is not defined under the NOP. The only consideration identified in
§205.663 is that the mediator be mutually agreed upon by the parties to the mediation.
Merriam Webster definition of mediator: one that mediates between parties at variance.
ACA staff can serve as mediators in informal mediation processes. A staff person from
another agency could serve as a mediator in a formal mediation process. Ideally, agency
staff acting as a mediator would have some background and training in mediation process.
There are many online mediator training courses, plus in person training programs. ACAs
are identifying specific staff to take mediator training courses. (See Resources at end)
Each ACA must set criteria to determine what constitutes a conflict of interest in a
mediation between agency staff and operators. Some examples could be:
• Familiarity with the file
• Previous reviewer interaction with the client
• Previous inspection of the client
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E. Contents of Settlement Agreements
A portion of the information in this section is based upon the National Organic Program
Certifier Training Module: Appeals and Settlement Agreement Updates, 2015
1) What information should be contained in the settlement agreement?
• Name of certifier, operator, and responsibly connected parties
• Address of the certified operation.
• Corrective actions and/or other terms the operator agrees to
• The outcome if the terms are met (i.e. certifier agrees to close
proposed adverse action)
• Timeframe for implementation of corrective actions
• Consequences to the operator if terms are not met in the
prescribed timeframe
• Effective date of the settlement agreement
• Signatures of the certifier and operator
2) How prescriptive can settlement agreements be?
Settlement agreements by their nature are generally prescriptive. They may
provide specific actions agreed to by the operator with aggressive
timeframes to demonstrate compliance.
Some examples of terms that may be included are:
• Additional residue testing over a set period of time, potentially at
the operation’s expense
• Shorter suspension time than originally offered under
certain circumstances or a suspension to mitigate a
proposed revocation
• Additional unannounced inspections over a set timeframe
Some examples of specific actions including timeframes are:
• Provide specific elements of a revised recordkeeping system
that demonstrates compliance
• Provide specific subset of records at a future time which
demonstrate compliance
• Adjust a practice and provide evidence that practice is
implemented to bring an operation into compliance
• Agree to notify certifier within a specified timeframe if a specific
element of an OSP changes (beyond already required notifications)
3) Must the settlement document be signed by the operator?
Yes, it must be signed.
4) Must a settlement always include a change to an organic plan to avoid
recurrence of the issue, or can "mea culpa" be an adequate correction?
The operation must demonstrate the noncompliance has been corrected.
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Simple acknowledgment and correction of error (e.g. lack of payment, late
submission of OSP) is not adequate. Since there was a system failure, they
would need to issue a corrective plan such as, “I will put it on my calendar
to remember.”
5) What is the effect of a failure to comply with the settlement agreement?
Failure to comply with a settlement agreement results in a termination of the
settlement agreement, with a reissuing of the adverse action. The operator
retains the right to appeal to NOP.
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Mediation and Settlement Agreement Resources
Training Programs for Mediators (this is not an all-inclusive list)
The Free Online Mediation Training Course http://www.freemediationcourse.com/
Universal Class, on-line mediation course
https://www.universalclass.com/i/course/mediation-training.htm
Mediation Training Institute International: http://www.mediationworks.com/mti/
American Institute of Mediation: http://www.americaninstituteofmediation.com/pg37.cfm
NOP Training Presentations
2016
https://www.ams.usda.gov/sites/default/files/media/Resolving%20Proposed%20Suspensio
n%20and%20Revocation.pdf
2015
https://www.ams.usda.gov/sites/default/files/media/NOP%20Appeals%20and%20Settleme
nt%20Agreement%20Updates%20Training.pdf
See slides 11 and 12
2014
https://www.ams.usda.gov/sites/default/files/media/NOP%20Appeals%20Update%20Traini
ng%202014.pdf
Slide 6 is the same as that slide from 2013
2013
https://www.ams.usda.gov/sites/default/files/media/NOP%20Settlement%20and%20Medi
ation%20Training%202013.pdf
NOP Noncompliance and Adverse Action Flow Chart
https://www.ams.usda.gov/sites/default/files/media/NCandAdvActionFlowChart.pdf
Settlement Agreements
Settlement agreements composed by the NOP during enforcement actions can be viewed on
the USDA/AMS Organic Enforcement webpage:
https://www.ams.usda.gov/services/enforcement/organic
Mediation Providers (not an all inclusive list)
USDA agencies offer mediation services in many states. The link below identifies states with
current agricultural mediation services programs:
http://aces.nmsu.edu/ces/nmamp/certified-states.html#anchor_17091
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Settlement Agreement Templates
Settlement Agreement Template A
This settlement agreement is entered into by [insert name of ACA] and [insert name and address
of operator and any individual person(s) responsibly connected to the operator], and any other
person responsibly connected with [insert name of operator].
[Insert name of ACA] and [insert name of operator] have decided to compromise and settle the
issues among them related to alleged violations of the Organic Food Production Act of 1990 (7
U.S.C. §§ 6501 et seq) (OFPA), and regulations promulgated thereunder (7 C.F.R. §§ 205 et seq).
Accordingly, the parties agree to the following:
1. [Insert name of ACA] agrees not to [describe original proposed adverse action] charging
[insert name of operator] with [sample language: alleged violations of the regulations
for any actions disclosed by the investigation] which gave rise to this agreement.
2. [insert name of operator] agrees that failure to comply with the settlement agreement
shall automatically void paragraph 1 above, and that [insert name of ACA] may thereafter
institute the [describe original proposed adverse action] against [insert name of operator],
refer the matter to the National Organic Program (“NOP”) and pursue any and all
remedies available under the OFPA and the regulations.
3. [insert name of operator] agrees to [describe corrective action(s), outcomes and time
frame].
This agreement will become effective upon [date].
Date:
[insert name of authorized operator representative]
[insert title of above-named representative]
[insert name of operator]
Date:
[insert name of authorized ACA representative]
[insert title of above-named representative]
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Settlement Agreement Template B (Might be more than what is required for some certifiers
who are not State Departments of Agriculture)
LETTERHEAD
USDA NATIONAL ORGANIC PROGRAM
SETTLEMENT AGREEMENT
In the Matter of the Organic Certification of:
Organic Certification # XXX
NAME
ADDRESS
WA State UBI #: XXXXXX
NAME County
On DATE [Name of Certifier] NAME a Notice of Proposed Suspension of Organic Certification, pursuant
to National Organic Standards (NOS) 7 CFR Part 205.662(c). The Notice of Proposed Suspension was
issued for LIST ISSUES. This action violated the following standards:
• NOS 205.XXX
• NOS 205.XXX
On DATE, [Name of Certifier] received a notice from NAME, owner of NAME, requesting mediation
of the DATE Notice of Proposed Suspension.
The request for mediation was accepted by [Name of Certifier] in a letter dated DATE.
This settlement agreement between [Name of Certifier] and NAME is in lieu of entering into formal
mediation.
The parties agree to the following:
Findings:
1. NAME applied PRODUCT NAME, a prohibited input material under the National Organic Standards,
on 7.6 acres of Site 4 (SITE NAME) that were contaminated with prohibited materials.
2. The 7.6 acres of Site 4 (SITE NAME) that received the application of PRODUCT NAME are ineligible
for organic status for 36 months following the application. According to records reviewed by [Name
of Certifier]on DATE, the application occurred on DATE, and, therefore, the land is ineligible for
organic status until DATE. The National Organic Standards prohibits selling, labeling or representing
crops grown on this land prior to DATE as organic.
3. The remaining 11.6 acres of Site 4 (NAME) which did not receive an application of the prohibited
material remains eligible for organic status.
4. NAME did not update their system plan and obtain approval from [Name of Certifier] prior to
changing cleaning procedures used on equipment that cuts and plants both organic and
conventional seed potatoes.
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a. [Name of Certifier] originally approved NAME potato seed cutting and planting cleaning
procedures on DATE.
b. The records submitted to [Name of Certifier] on DATE indicated that seed cutter and
planter cleaning procedures were modified to no longer utilize soap and a pressure washer
and instead only use high pressure air.
c. This change was made without prior notification or approval by [Name of Certifier].
5. NAME’s cleaning procedures of potato seed cutting and planting equipment were inadequate to
prevent the contamination of potato seed with prohibited substances.
Requirements:
To maintain organic certification, NAME shall:
1. Submit a completed application for organic certification by the annual renewal due date
(currently February 1
st
) every year while certified as an organic producer.
2. Submit the following to ensure that the certification renewal is complete:
a. Signed Operator Agreement with current business information, including the legal name and
business structure. This information must match the information contained on the
operation’s Washington State business license.
b. Sales and yield information with accurate reporting of gross annual income (reported by
calendar or fiscal year) and previous year yields for all crops.
c. Site information outlining any crop changes for each organic or transitional site.
d. Updated and complete Organic System Plan. This plan must identify current practices and
procedures regarding all aspects of organic and transitional production and must include all
material inputs that will be used. The input material list must be detailed (specific brands
and/or types) and must accurately reflect the use on the farm.
e. Any additional information deemed necessary by the [Name of Certifier] Organic Food
Program in order to evaluate compliance with the National Organic Standards.
3. Submit updates to the certification renewal prior to the implementation of any changes on the
operation. Updates include, but are not limited to, changes in practices and procedures,
equipment, recordkeeping systems, and input materials.
4. Develop and implement new cleaning procedures for all equipment used for both organic and
conventional production. These cleaning procedures must adequately prevent the future
contamination of organic seed, crops, or production sites with prohibited materials. These
cleaning procedures must be submitted to the [Name of Certifier] Organic Food Program as a
system plan update and must be agreed to by [Name of Certifier] prior to implementation.
5. Ensure that adequate and complete records are maintained regarding all organic crops raised by
NAME pursuant to 7 CFR Part 205.103. NAME shall have all records available at each inspection.
These include, but are not limited to, production records, yield records, harvest records, sales
records, material application records, and any other records as appropriate to verify compliance
with National Organic Standards.
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6. Make a representative available for inspections. Pursuant to 7 CFR Part 205.403, all announced
on site inspections will be conducted by [Name of Certifier] when an authorized representative
of the operation is present. Unannounced inspections will be conducted by [Name of Certifier]
during normal business and operating hours.
7. Submit to the minimum of two additional inspections over the course of the next two years,
and, if necessary, in subsequent production years, which are in addition to the inspections
otherwise required by regulation. [Name of Certifier] reserves the right to make inspections
in addition to the two identified in this paragraph. The NAME shall compensate [Name of
Certifier] for costs of all additional inspections at a rate of $550.00 per inspection. The
additional inspections will take place at [Name of Certifier]’s discretion after one week
notification from NAME regarding the estimated dates for the following activities:
a. LIST ACTIVITIES REQUIRING NOTICE
8. Allow [Name of Certifier] field inspector access to production sites and facilities for the
purposes of collecting samples for pesticide residue analysis. These samples will be
collected and analyzed at [Name of Certifier]’s expense.
Other terms of this Settlement Agreement:
1. NAME, representing NAME, acknowledges that she has had an opportunity to consult with legal
counsel concerning this agreement, that she is executing this agreement of her own free will, and
that she fully understands and accepts the terms of this agreement.
2. This agreement contains the entire agreement of the parties and is binding upon the parties, their
legal successors, representatives, agents, employees, officers, subcontractors, executors,
administrators, heirs and assigns.
3. This agreement shall be subject to and governed by the laws of the state of Washington.
Jurisdiction of any action arising hereunder shall be proper only in the Superior Court for Thurston
County, Washington.
4. If any provision of this agreement shall be held invalid by the courts or the National Organic
Program, such invalidity shall not affect the other provisions of this agreement that can be given
effect without the invalid provision, and to this end the provisions of this agreement are declared to
be severable.
5. It is mutually agreed and understood that no alteration or variation of the terms of this agreement
shall be valid unless made in writing and signed by the parties.
6. Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or
breach. Any waiver shall not be construed to be a modification of the terms of this agreement.
7. By signature below, NAME, agrees to the findings listed above and will enter into an agreement with
[Name of Certifier that will fulfill the requirements outlined for maintaining organic certification. If
at any point, [Name of Certifier] determines that NAME is in violation of this agreement or the
National Organic Standards, a Notice of Proposed Suspension or Revocation may be issued.
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8. This agreement will terminate after NAME maintains its organic certification for three (3) continuous
years from the date the agreement is signed, provided minor noncompliances are addressed with
corrective measures accepted by [Name of Certifier] within the required timeframe, and, no
noncompliances that are determined by [Name of Certifier] to be uncorrectable.
IN WITNESS WHEREOF, the parties have executed this agreement
NAME, NAME DATE
Name of Certifier and Title
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Settlement Agreement Template C
THIS SETTLEMENT AGREEMENT is entered into by <CERTIFIER> and <NAME OF RESPONSIBLY
CONNECTED PARTY(IES)>/<ENTITY NAME AND ADDRESS>.
<CERTIFIER> and <NAME OF RESPONSIBLY CONNECTED PARTIES> /<ENTITY NAME> have
decided to compromise and settle the issues among them related to alleged violations of the
Organic Foods Production Act of 1990 (7 U.S.C. §§6501 et seq.) (OFPA), and USDA organic
regulations (7 C.F.R. §§205 et seq.).
On <DATE>, <CERTIFIER> issued a Notice of Proposed Suspension of organic certification
pursuant to the National Organic Standards 7 C.F.R. §205.662(c) to <NAME OF RESPONSIBLY
CONNECTED PARTIES> /<ENTITY NAME>.
On <DATE>, <CERTIFIER> received a request for mediation of the <DATE> Notice of Proposed
Suspension from <NAME OF RESPONSIBLY CONNECTED PARTIES> /<ENTITY NAME>. The
request for mediation was accepted by <CERTIFIER> on <DATE>.
This settlement agreement between <CERTIFIER> and <NAME OF RESPONSIBLY CONNECTED
PARTIES> /<ENTITY NAME> is in lieu of entering into formal mediation.
Accordingly, the parties agree to the following:
Findings:
<describe findings that resulted in the NC/PS>
Requirements:
To maintain organic certification, NAME OF RESPONSIBLY CONNECTED PARTIES> /<ENTITY
NAME> shall:
<describe requirements that the entity must follow>
Other terms of this Settlement Agreement:
1. NAME, representing NAME, acknowledges that he/she has had an opportunity to consult
with legal counsel concerning this agreement, that he/she is executing this agreement of
his/her own free will, and that he/she fully understands and accepts the terms of this
agreement.
2. This agreement contains the entire agreement of the parties and is binding upon the
parties, their legal successors, representatives, agents, employees, officers, subcontractors,
executors, administrators, heirs and assigns.
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3. If any provision of this agreement shall be held invalid by the courts or the National Organic
Program, such invalidity shall not affect the other provisions of this agreement that can be
given effect without the invalid provision, and to this end the provisions of this agreement
are declared to be severable.
4. It is mutually agreed and understood that no alteration or variation of the terms of this
agreement shall be valid unless made in writing and signed by both parties.
5. Waiver of any default or breach shall not be deemed to be a waiver of any subsequent
default or breach. Any waiver shall not be construed to be a modification of the terms of
this agreement.
6. By signature below, NAME, agrees to the findings listed above and will enter into an agreement with
<CERTIFIER> that will fulfill the requirements outlined for maintaining organic certification. If at any
point, <CERTIFIER> determines that NAME is in violation of this agreement or the National Organic
Standards, your operation will return to state of proposed suspension.
IN WITNESS WHEREOF, the parties have executed this agreement
Client Signature DATE
Client Printed Name
Certifier Representative Signature DATE
Certifier Representative Printed Name
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Acceptance of Mediation Request & Proposed Settlement Agreement or Mediation
Scheduling
[DATE]
[CERTIFIED MAIL or REGISTERED EMAIL]
[FIRST NAME, LAST NAME]
[OPERATION NAME]
Operation #: [OPERATION #]
[ADDRESS]
[STATE, CITY ZIP]
[EMAIL ADDRESS]
Acceptance of Mediation Request
& [Proposed Settlement Agreement OR Mediation Scheduling]
Dear [OPERATOR],
Thank you for requesting mediation with [CERTIFIER]. We accept your request for mediation. Our
mediation session will address the issues described in the [SPECIFIC LETTER] letter dated [DATE OF LETTER].
--------------------------------------------------------------------------------------------------------------
Mediation Scheduling (if the purpose of this letter is to schedule formal mediation)
[We will contact you shortly to schedule the mediation session. OR We plan to conduct the mediation
session over the phone by calling you at [PHONE NUMBER] at [TIME] on [DATE].] If you have a different
phone number you would like us to call or need to reschedule, please contact me.
[I OR FILE REVIEWER, TITLE] will be on the call with [MEDIATOR, TITLE] serving as the mediator. We
consider your participation in the mediation session your agreement to work with these [CERTIFIER] team
members. Please be prepared by having the [SPECIFIC LETTER] letter dated [DATE OF LETTER], something to
write with, and any questions you have for us.
We look forward to speaking with you. Please let me know if you have any questions.
Sincerely,
[AUTHOR]
[JOB TITLE, x###]
-----------------------------------------------------------------------------------------------------------------
Proposed Settlement Agreement (if the purpose of this letter is to offer a settlement agreement)
We need you to carefully review the proposed Settlement Agreement below and decide the following:
➢ If you agree to the terms described in the proposed Settlement Agreement, complete and return the
signed Settlement Agreement and all the items requested in it.
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➢ If you do not agree to the proposed Settlement Agreement, you have the following options:
o Contact us to discuss the terms in the proposed Settlement Agreement
o File an appeal with the NOP
o Accept the partial suspension
Settlement Agreement between [NAME] Certification and [NAME, OPERATION NAME – CERT #]
[ADDRESS]
[STATE, CITY ZIP]
[DATE]
As an alternative to suspension and as the simplest form of mediation, we would like to offer you the
opportunity to enter into the following agreement:
1. I agree to send the following information to [NAME OF CERTIFIER] by [35* DAYS FROM TODAY]:
NOTE: DELETE the following box from the letter to be sent to the operation – it is only for your
reference.
TERMS MAY INCLUDE (please number the terms you choose):
□ Provide specific elements of a revised recordkeeping system that demonstrates compliance
□ Provide specific subset of records at a future time which demonstrate compliance
□ Adjust a practice and provide evidence that practice is implemented to bring the operation
into compliance
□ Agree to notify [NAME OF CERTIFIER] within a specified timeframe if a specific element of
their OSP changes (beyond already required notifications)
□ Additional residue testing or unannounced inspections over a set period of time, potentially
at the operation’s expense
2. At my next inspection, I agree to have available for the inspector adequate and complete
[information needed to verify records/etc.], demonstrating that I have met the terms listed above.
---------------------------------------------------------------------------------------------------------------------
This agreement describes the terms [NAME OF CERTIFIER] determined will address this/these issue(s). In
order for mediation to be considered fully successful, the next inspector will need to verify that you fulfilled
Guidance for creating settlement agreement terms
Create terms which accomplish the following:
1. Correct the cause of the noncompliance
2. Provide documented, objective evidence that the noncompliance was corrected
3. Prevent the reoccurrence of the noncompliance in the future
4. Provide documented, objective evidence of how the noncompliance will be prevented
in the future
5. Describe how noncompliant product has been controlled (correcting product labels,
selling and marketing product as conventional, etc.) as applicable
ACA Utilizing Mediation and Settlement Agreements
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the terms of the Settlement Agreement. If the inspector is able to confirm that the terms have been met,
the noncompliance(s) will be considered resolved and the proposed suspension issued to you in the Notice
of Noncompliance and Proposed Suspension dated [DATE OF LETTER] will be closed. However, if s/he is not
able to verify that all the terms have been met, you will receive notice from [NAME OF CERTIFIER] that
mediation was unsuccessful and you will have 30 days from this termination of mediation to appeal the
proposed suspension to the NOP.
If you agree to the terms listed above and wish to enter into this Settlement Agreement with [NAME OF
CERTIFIER] please sign BOTH copies, keep one for your records, and return the other to [NAME OF
CERTIFIER]. The date of your signature is the effective date of our agreement.
_______________________________
Printed Name
_______________________________ ______________________________
Signature Date
This signed agreement and the requested information must be sent to [NAME OF CERTIFIER]by [35* DAYS
FROM TODAY].
[AUTHOR SIGNATURE]
[AUTHOR]
[JOB TITLE, x###]
Enclosure:
(1) Copy of this agreement
[*If agreement is being sent as a follow-up to a mediation session, make deadline 30 days from date of
mediation session (NOP requirement
ACA Utilizing Mediation & Settlement Agreements
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Mediation Accepted and Settlement Agreement Template
Letterhead
USDA NATIONAL ORGANIC PROGRAM
MEDIATION ACCEPTED
[DATE]
FIRST CLASS AND CERTIFIED
LETTER: RETURN RECEIPT
REQUESTED
Organic Certification Number: [### – Producer/Handler, etc.] County: [XXX]
WA State UBI Number*: [### ### ###]
[NAME]
[COMPANY]
[ADDRESS]
[CITY STATE ZIP]
Dear [NAME]:
On [DATE] the [Name of Certifier] issued your operation a [Notice of Proposed Suspension of Organic
Certification (could also be combined NONC/NOPS)], pursuant to National Organic Standards (NOS) 7
CFR Part 205.662(c). The [Notice of Proposed Suspension] was issued for [explain reason for issuing
NOPS.] This action violated the following standards:
• [NOS 205.XXX – Title of Section (Land Requirements, Seeds and Planting Stock Standards, etc.)]
Since the issuance of the [DATE] Notice, the following has occurred:
1. [Insert details of timeline of events (letters, requirements, operation’s submissions of information &
documents, etc.]
2.
This notice is to inform you that the conditions we required before mediation could take place have
been met, thus this is our official acceptance of your request for mediation.
Before entering into a formal mediation proceeding, however, our office would like to offer the attached
Settlement Agreement in lieu of mediation. If you and [Name of Certifier] enter into this agreement, the
matter of the [DATE] notice will be resolved provided that [COMPANY NAME] complies with the terms of
the Settlement Agreement.
If you reject the enclosed settlement agreement, the next step is to initiate formal mediation. In this
case, you must sign the enclosed Mediation Agreement and contact a qualified mediator mutually
agreed upon by our agency.
Please submit to me by [4 WEEKS FROM FRIDAY] either the Settlement Agreement signed by you or the
Mediation Agreement signed by you. If I receive nothing from you by close of business on [4 WEEKS
ACA Utilizing Mediation & Settlement Agreements
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FROM FRIDAY], [Name of Certifier] will deem your inaction a rejection of mediation and will
continue with enforcement of the [DATE] Notice of Proposed Suspension.
If you have any questions, I am available at [XXXX], fax [XXXX], and email: [XXXX.]
Sincerely,
[NAME]
[TITLE]
Enclosures: Settlement Agreement
Mediation Agreement
[XX/xx]
*The WA UBI (Unified Business Identifier) number is a unique identifier assigned to all businesses in WA
when they register with the state as a business entity or apply for a business license.
Resources for finding a qualified mediator:
Washington Mediation Association: http://www.washingtonmediation.org/
Lawyer Referral Services: http://www.wsba.org/atj/contact/lawref.htm
Dispute Resolution Centers: http://www.courts.wa.gov/court_dir/?fa=court_dir.dispute
Page 23 of 23
ACA Utilizing Mediation & Settlement Agreements
7.2016
MEDIATION FAQ
The goal of mediation is agreeable, positive outcomes for both parties.
What is mediation?
Mediation is a process by which you and Oregon
Tilth can resolve a Notice of Proposed Suspension,
a Notice of Proposed Revocation or a Notice of
Denial. Most situations will allow you to mediate
with a trained Oregon Tilth staff member by phone
or in person if you wish. This is called “Informal”
Mediation. In other cases it will be required that
we mediate by using a third-party mediator that
both sides agree on. This is called “Formal”
Mediation. In both situations, mediation offers a
clear process by which both parties attempt to
maximize agreement and understanding of an
issue in order to address a concern or unresolved
situation.
Why use mediation?
The Oregon Tilth Procedures manual allows for
two options once an adverse action* letter has
been issued. In such cases, once an adverse action
has been issued the only way to remedy the
situation is by either requesting mediation or filing
an appeal. * An adverse action is defined as a
notice that adversely affects your certification (for
instance, a Proposed Suspension or Notice of
Denial, etc.).
What is the process for requesting and
completing mediation?
The first step is to contact the Oregon Tilth office
and formally request mediation. You will be
notified whether you qualify for Informal or
Formal Mediation if we accept the request to
enter into mediation. In some cases, Oregon Tilth
reserves the right to deny request for mediation.
Upon acceptance, we will then schedule a time for
you to speak with an Oregon Tilth staff mediator
or for us to mediate using a third party. Both
options will result in a Settlement Agreement that
will describe the actions that you and Oregon Tilth
will take in order to keep you in compliance with
the standards to which you are certified. This may
require a short-term response to provide
documentation or description of corrective actions
to be taken over a period of time to resolve the
issue.
What happens after a Settlement Agreement?
After the signed Settlement Agreement is received
and all actions or documentation requests are
received, Oregon Tilth will clear the
noncompliance and continue your certification
under the agreed upon terms defined in the
Settlement Agreement.
Is it possible mediation might be
unsuccessful?
Yes. For instance, mediation may be unsuccessful
if the agreed upon terms of the Settlement
Agreement are not honored and met. Additionally,
if the two sides cannot come to mutually
acceptable terms then mediation will not proceed
to a Settlement Agreement. If mediation is
unsuccessful, you will be given an additional 30
days to appeal the decision to the USDA or the
Oregon Tilth adjudication committee for a
situation that is not certified to the National
Organic Program Standards, such as certification
to the Canada Organic Regime, ACB EU or NSF 305
standards.
Oregon Tilth | (503) 378-0690 | www.tilth.org
