• By a Panel Representative With Recommendations for Settlement

In important disputes involving issues of first impression, heightened public interest, or of a highly technical nature, a factfinding hearing creates a complete record of documentary evidence and expert witness testimony on which to base a decision.  It is the most formal of the Panel's procedures.  A pre-hearing conference is conducted to facilitate preparations for the hearing and to explore settlement possibilities.  To expedite the process, the Panel asks parties to stipulate through joint exhibits to any facts that are not in dispute.

During the factfinding hearing, the Panel representative (factfinder) in charge of the proceeding has the authority to issue subpoenas, and to allow the parties to call witnesses who are under oath.  The parties may question the witnesses through direct and cross examination; the factfinder may also question the witnesses and the parties' representatives as necessary to ensure creation of a complete record.  An official transcript of the proceeding is made; the parties make arrangements to purchase copies from the court reporting service for their own use.

After the hearing, the parties are normally permitted to submit post-hearing briefs.  The factfinder issues a report summarizing the evidence and arguments presented, the parties' final offers and positions, and his or her recommendations for settlement.  Copies of the report are sent to the parties, who have 30 days in which to reach an agreement or present their reasons, in writing, as to why the factfinder's recommendations should or should not be adopted.  If the issues are not resolved as a result of the factfinder's recommendations, after considering the entire record, the Panel subsequently takes final action on the matter, usually by issuing a Decision and Order.

• By a Panel Representative Without Recommendations for Settlement

This procedure is identical to factfinding with recommendations, except that the factfinder is not given the authority to provide the parties with his or her recommendations for resolving the dispute.  In such cases, the factfinder's responsibility is complete upon the issuance of a factfinder's report, within a period normally not to exceed 30 calendar days after the receipt of the transcript or post-hearing briefs, if any.

The factfinder's report summarizes the evidence and arguments presented, and the parties' final offers and positions.  The Panel then takes whatever action it may consider appropriate or necessary to resolve the impasse, which most often takes the form of a Decision and Order.

• Private Factfinding (With or Without Recommendations for Settlement)

In certain circumstances, often, but not always with their concurrence, the Panel may direct the parties to hire a mutually acceptable private individual to conduct a factfinding hearing.  The parties share all of the expenses of the private factfinder that they select to conduct the proceeding.  Although the private factfinder is without authority to issue a binding decision to resolve the parties' impasse, he or she normally has latitude in determining scheduling and the manner in which the proceeding is conducted.  As in those cases where one of its own representatives is designated to conduct a factfinding hearing, the Panel requires that an official transcript of the proceeding be submitted to it along with the private factfinder's report.  In those instances where the private factfinder is granted the authority to make recommendations to the parties and the Panel for settlement of the dispute, the parties have 30 days in which to reach an agreement or present their reasons, in writing, as to why the private factfinder's recommendations should or should not be adopted.

If the issues are not resolved as a result of the private factfinder's recommendations, after considering the entire record, the Panel subsequently takes final action on the matter, usually by issuing a Decision and Order.  If the private factfinder has not been given the authority to make recommendations for settlement, his or her responsibility is complete upon the issuance of the private factfinder's report summarizing the evidence and arguments presented, and the parties' final offers and positions.  The Panel then takes whatever action it may consider appropriate or necessary to resolve the impasse, which most often takes the form of a Decision and Order.