Dispute Resolution in the Administrative Process: Evaluation of the Occupational 

Safety and Health Review Commission Settlement Part Program 

Lisa Blomgren Bingham, J.D.
 

Keller-Runden Professor of Public Service
 

Deanna Malatesta, Ph.D.
 

Assistant Professor
 

Susanna L. Foxworthy, M.P.A.
 

Timothy Reuter, M.P.A.
 

Indiana University
 

School of Public & Environmental Affairs
 

1315 E. 10th St.
 

Bloomington, Indiana, USA 47405
 

812-855-4556
 

Lbingham@indiana.edu
 

Indiana University Purdue University Indianapolis
 

School of Public & Environmental Affairs
 

801 W. Michigan St. BS 4075
 

Indianapolis, IN 46202
 

317-274-0876
 

Dmalates@iupui.edu
 

Corresponding author:
 

Prof. Deanna Malatesta
 

Dmalates@iupui.edu
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table of Contents 

Executive Summary............................................................... 1
 

Introduction........................................................................... 9
 

Design of Evaluation ....................................................... 10
 

Data Collection .............................................................. 13
 

Section A. Internal Stakeholders’ Assessments of 

Mandatory Settlement Part. ......................................................... 16
 

Introduction .......................................................................................... 16
 

Protocol /Interview Design................................................................... 17
 

Sampling and Responses...................................................................... 18
 

Results................................................................................................... 18
 

Topic 1: The Value of Settlement Part (SP) 

Compared to Conventional Proceedings................................................. 19
 

Topic 2: Reasons that Some Cases take Much Longer than Others ..... 20
 

Topic 3: Proposals for Reducing Time on the Docket........................... 21
 

Topic 4: Effective Techniques Used in the Facilitation Settlement........ 22
 

Topic 5: Appropriate Role of Discovery in Settlement Part..................... 22
 

Topic 6: The Usefulness of Requiring Parties to Bring Officials Who Have
 

Authority to Settle....................................................................................... 23
 

Topic 7: Dispute Resolution and Mediation Training Needs.................... 23
 

Topic 8: Ways in Which Settlement Part Program, Design, Management, or 

Administration Can Be Improved...................................................................24
 

Topic 9: Could Current Regulations of Settlement Part
 

Benefit from Revision ...................................................................................25
 

Topic 10: What Information Might Be Useful to Communicate to 

Congress, Other Agencies, or the Public Regarding the Work of OSHRC 

and Settlement Part.................................................................. 26
 

Conclusions and Recommendations......................................... 26
 

Appendix A-1 .......................................................................... 27
 

Appendix A-2 .......................................................................... 29
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section B. Efficiency and Effectiveness in Case Management
 

Through Analysis of Archival Case Records ..................................... 31
 

Introduction ................................................................................... 31
 

Efficiency of Settlement Part ......................................................... 33
 

Figure B-1. Comparison of Cycle Times for All Cases and 

Programs: 2000 -2011 ................................................................... 36
 

Figure B-2.
 Trend in New Cases Docketed: 2000 -2011 ............... 37 

..... 38 

..................... 39 

..... 40 

........ 41 

........................... 43 

...... 49 

.................................... 52 

Figure B-3. Changes in Distribution of Case Types 2000-2010

Figure B-4. Average Penalties Per Case: 2000-2010

Figure B-5.
 Citations Per OSHRC Case Over Time: 2000-2010

Figure B-6.
 Items Per OSHRC Case Over Time: 2000-2010

Table B-1 Regression Analysis on Cycle Time 

Table B-2 Dependent Variable Failure to Settle or Litigation 

Table B-3 Probabilities of Failure to Settle 

Predicting Future Compliance ............................................................ 53
 

Table B-4 Probit Predicting Future Compliance ............................... 55
 

Table B-5 Probabilities of Future OSHA Citations ............................ 56
 

Table B-6 Effect of Penalty Amounts on the Probability of
 

Subsequent OSHA Citations .............................................................. 57
 

Appendix B-2: Technical Appendix- Probit Analysis: Factors Predicting
 

Appendix B-3: Technical Appendix- Probit Predicting the Likelihood of
 

Table B-7 Additional Probit Results predicting Future Compliance ............ 58
 

Appendix B-1: Technical Appendix- OLS Regression Analysis ................. 60
 

Cases that will Fail to Settle in Settlement Part ............................ 65
 

Subsequent OSHA Violations for MSP and Conventional Cases ................ 66
 

Section C. Participants’ Perceptions of OSHRC Programs:
 

Summary of Survey Responses with Focus on Procedural and
 

Distributive Justice ........................................................................................ 68
 

Introduction ........................................................................................ 68 

Table C-i Response Rate for Mandatory Settlement Part ...................... 73
 

Table C-ii Response Rate for Convention Proceedings ......................... 73
 
 

 

 

 

 

 

 

 

Table C-iii: MSP Survey-Familiarity of Respondents with Different
 

OSHRC Programs by Role ..................................................................... 75
 

Table C-iv: Conventional Survey-Familiarity of Respondents with Different
 

OSHRC Programs by Role ............................................................................ 76
 

Table C-v. MSP Survey-Nature of Most Recent Case ................................... 77
 

Table C-vi. Conventional Survey- Nature of Most Recent Case .................. 77
 

Survey Response Summaries ........................................................................ 78
 

Tables C-1 to C-37. Cross-Tabulations ........................................................ 87
 

Appendi C
1

Executive Summary

In 2010, The Occupational Safety and Health Review Commission (OSHRC or the 

agency) and researchers from Indiana University began working together to evaluate and 

recommend improvements, if any, to OSHRC’s “Mandatory Settlement Part” Program 

(MSP). OSHRC adjudicates legal disputes that arise from workplace safety and health 

inspections conducted by the U.S. Department of Labor’s Occupational Safety and 

Health Administration (OSHA). According to OSHRC’s strategic plan for years 2010–

2015, the agency aims to be objective, fair, prompt, professional and respected in 

resolving contests arising from OSHA-issued citations. 

The procedures for Mandatory Settlement Part apply to notices of contest by employers 

in which the aggregate amount of penalties sought by the Secretary is $100,000 or more. 

29 C.F.R. § 2200.120 (b). Researchers in this investigation sought objectively to evaluate 

the effectiveness of MSP. The methods included conducting interviews with 

Administrative Law Judges (ALJs) and OSHRC personnel who provided qualitative 

insight into the program; review of case records and creating the life cycle of a case; 

conducting a regression analysis to isolate statistically significant factors that either 

expedited or slowed case progress; and administering surveys to samples of participants 

in both SP and conventional proceedings.

Interviews with Internal Stakeholders

To better understand the perspectives of ALJs and other internal OSHRC stakeholders 

and personnel, researchers conducted interviews in Washington D.C., Denver, and 

Atlanta. Interviews covered the value of Settlement Part, the reasons some cases take 

longer than others, possibilities for reducing case time, effective techniques used in 

facilitating settlement, the appropriate role and timing of discovery, areas in which 

Settlement Part can be improved, and areas for policy revision. 

Most of those interviewed found Settlement Part beneficial, but offered suggestions for 

improvement. These included conducting hearings in more convenient places or through 

video-technology, improving and standardizing reporting procedures, and possibly 

changing the threshold limit for cases that proceed to Mandatory Settlement as a way to 

identify cases most likely to settle. There were a wide variety of opinions that reflected 

the data from the regression analysis that suggests individual case management practices 

can greatly decrease or increase the lifecycle and time to disposition of a case.

In summary, the interviews yield several recommendations and next steps:

• Provide training and regular continuing legal education in mediation and dispute 

resolution to every ALJ who is expected to serve as a settlement judge.
2

• Reconsider current policies on assigning cases to various regions and judges. 

Consider factors such as geographic proximity to case, industry expertise, and 

preferences of judges to act as settlement judge or traditional ALJ trying cases.

• Use empirical analyses to identify factors contributing to delay in resolution and 

identify relevant changes in judicial case management practices.

• Use empirical analyses to identify factors contributing to failure to settle, and use 

these to identify relevant changes in case assignment practices to Mandatory 

Settlement Part.

Analyzing Case Management and Archival Records from OSHRC Database

Analysis of case management and archival agency records revealed a number of factors 

that contribute to time to final disposition in the lifecycle of a case.

Descriptive Statistics on Agency Docket

An analysis of OSHRC’s docketed cases over the past ten years revealed the following 

key findings about the enforcement environment in which the agency functions:

• On average, over the last ten years, Conventional cases with a hearing and those 

without a hearing settle in about the same amount of time. The average life cycle 

for Conventional/ with a hearing cases is about 178 days, while the average for 

Conventional cases that settle (most of which are MSP cases) is about 167 days. 

• The life cycle for MSP cases was the longest in 2009, about 224 days on average. 

The increase was likely due to a fifty percent increase in caseload from 2005 to 

2009. Specifically, the number of new cases docketed increased from about 2000 

cases in 2005 to over 3000 cases in 2009. 

• The number of items and citations per case varies year to year, yet there does not 

appear to be a clear pattern. 

• The average penalty amount was at its highest in 2009, over $58,500 which is 

more than double from 2008, when the average was around $21,500. The increase 

is due in part to a couple of very large complex cases on the docket in 2009. 

These findings suggest that there have been changes in the enforcement environment 

outside the agency that have put pressure on agency resources to handle caseload.

Regression Analysis on Factors that Contribute to Increased Cycle Times

The regression analysis yielded insight into variables that statistically increased or 

decreased the time to final disposition in the lifecycle of a case. We summarize the key 

findings from this analysis below:
3

• Average cycle time is one of the agency’s performance indicators. The average 

cycle time for cases assigned to Mandatory Settlement Part is approximately 187 

days for cases used in this analysis (subset of cases include the years 2000 to 

2010). Yet, the data also show much dispersion around the mean. There is subset 

of outlier cases that take more than three (3) years to resolve. These cases distort 

the average for typical cases. We believe the agency can significantly improve 

mean cycle time for MSP cases by flagging cases at some interval, for example at 

180 days out, to reevaluate the potential for settling these cases. Certain cases 

may require more direct case management or need to be reassigned to trial.

• The 2005 policy change lowering the threshold for MSP case eligibility from 

$200,000 to $100,000 did not by itself reduce or increase the average amount of 

time it takes to resolve cases. Instead, the entire system was affected by changes 

outside of OSHRC’s control, specifically, increases in ALJ caseloads and the 

increases in case complexity after 2005. 

• The presence of a repeat violation is a significant factor in time to disposition in 

the life cycle of a case. Violations considered “repeat” add about 15 percent to 

case resolution times (see Table B-1, Models 2 and 4). As a result the estimated 

time to resolve a case extends from 187 days to 215 days. 

• A “willful” violation also significantly adds to time to disposition. Willful 

violations add between 8 percent and 11 percent to case resolution times (see 

Table B-1, Models 2 and 4). As a result As a result the estimated time to resolve a 

case extends from 187 days to between 202 days and 208 days.

• Regression results (Table B-1) suggest that the types of violations are more

important than penalty amounts in estimating the time it takes to resolve cases. 

However, the number of items and citations associated with a case do not 

meaningfully impact case resolution times.

• Case management activities have various effects on the time it takes to resolve 

cases. More case activity in the form of scheduling events, motions, and orders 

have a limited effect, adding only about three (3) percent or six (6) days to the 

average time it takes to resolve cases. However, when pleadings are suspended, 

the time to resolve a case increases by about 36 percent (67 days), bringing the 

estimated time to resolve a case to 254 days, on average. Similarly, when the 

initial settlement conference call is delayed more than 30 days, the life of a case 

extends by as much as 53 percent (99 days), extending the estimated time to 

resolve a case from 187 days to 286 days. 

• The management of a case, including the time at which a judge schedules 

conferences and other matters, is as important to reducing cycle times as other 

factors. The agency may wish to flag cases that do not reach certain milestones, 
4

including the deadlines specified in the Rules of Procedure. It may be useful to 

differentiate case processing delays from judge-granted extensions and stays to 

isolate the reason for longer than expected cycle times. It may be useful to count 

case cycle time with multiple metrics, not just from the date of assignment to the 

settlement judge. For example, a count from the date a case arrives at OSHRC 

and is docketed would isolate cases backlogged in the earliest period, while a 

count of days in discovery would help in determining both the efficiency and 

efficacy of discovery procedures. 

• Some judicial case management practices are more effective than others in 

contributing to quicker case resolutions. Specific practices appear to expedite 

cases by as much as 12 percent (24 days) or add as much as 21 percent (39 days)

to the life of a case. This finding suggests that improvements in average cycle 

times are possible if judges are encouraged to share best practices in case 

management.

• Cycle times vary substantially and significantly by DOL region. We believe these 

differences may be attributable to differences in industry, at least in part, as 

different industries have a higher presence in some areas of the country. The 

agency might consider whether it is feasible for some judges to “specialize” in 

facilitating resolution of cases involving certain industries, and whether to assign 

cases to judges based on their knowledge of relevant industry practices. 

Case Factors Associated with Failure to Settle in Mandatory Settlement Part

The agency’s case management database allowed us to examine what factors are 

associated with a failure of a case to reach settlement in MSP. In drawing conclusions 

about factors that lead to settlement failures, it is important to keep in mind that failing to 

settle a case while in MSP is not the same as failing to settle altogether. Some cases enter 

MSP but fail to settle while in the program. These cases are reassigned to a trial judge 

and may eventually settle; however, they do not settle while in MSP. The same ALJs 

serve as both settlement judges and trial judges who oversee settlement in Conventional 

proceedings, although not on the same case. We cannot determine from this data what 

practices facilitate settlement. However, we can identify case characteristics that may 

help predict cases that are better candidates for settlement.

The key findings and recommendations that stem from this analysis are as follows:

• The most important case characteristic associated with settlement failure is the 

type of violation. Specifically, cases that have willful violations increase the 

probability of settlement failure by 69%.

• Cases that involve workplace accidents increase the probability of settlement 

failure by 88%.

• However, repeat violations do not appear to significantly affect the probability of 
5

settlement failure while in MSP. 

• When the OSHA violation involves a unionized business, the probability of 

settlement failure increases about 73%. Unionized businesses are much more 

likely to be cited in the first place, probably because they are larger businesses, so 

we cannot conclude from this result that union involvement as a party in the case 

actually increases the probability of settlement failure. 

• Case management practices can increase the probability of settlement failure, and 

importantly settlement success. When cases are delayed as a result of suspended 

pleadings and orders granting extensions, the probability of settlement failure 

increases by about 76%. 

It is of course likely that these factors are both interrelated and cumulative. This suggests 

that cases entailing willful violations, workplace accidents, large, unionized employers, 

and issues that require suspended pleadings or extensions may be more appropriate for 

Conventional than Settlement Part proceedings. Mandatory Settlement Part is a program 

that is part of a larger dispute system design at the agency. While the use of a $100,000 

threshold in itself does not pose a problem for MSP, it is possible that improving 

selection of appropriate cases for MSP using these case characteristics will improve the 

efficiency of the system as a whole. 

The Impact of Participation in Mandatory Settlement Part on Future Compliance

The enforcement structure for national occupational safety and health policy involves 

OSHA inspections, citations for violations of rules, and assessments of penalties. 

Contested cases are subject to appeal to OSHRC. OSHRC’s case management database 

allowed us to do an analysis on the relationship between participation in Mandatory 

Settlement Part and the likelihood that participants would reoffend or have subsequent 

violations. The key findings and recommendations that stem from this analysis are as 

follows:

• Assignment to MSP appears to have a small yet positive effect on future 

compliance. Comparing MSP cases to Conventional cases, parties from MSP 

cases are about 20 percent less likely to receive subsequent violations of any type.

• Penalties are a deterrent. Larger penalty amounts are associated with a lower 

probability of future citations. In addition, assignment to MSP has the highest 

impact when penalty amounts are highest and cases are near the $100,000 

threshold. For cases near the $100,000 threshold that are also assigned to MSP, 

there is about a 69 percent probability that the case settled will not receive OSHA 

subsequent violations. 

• Businesses are less likely to be cited for subsequent violations if the OSHA 
6

inspection associated with the case was initiated because of a complaint by 

another party. This finding suggests that the complaining party may have an 

important role in the success of OSHRC cases in serving as an incentive for future 

occupational safety and health compliance. 

This finding is consistent with research on mediation more generally. It suggests that 

MSP as a program plays an important and useful role in the larger scheme of 

occupational safety and health enforcement.

External Stakeholder Satisfaction with Mandatory Settlement Part and Perceptions of 

Fairness

We conducted a mail survey to determine how participants in Mandatory Settlement Part 

and Conventional Proceedings perceive these procedures, their satisfaction with their 

experience, and their perceptions of fairness. Several key findings emerge from the 

surveys:

• The majority of recent participants of both Mandatory Settlement Part and 

Conventional Proceedings are more satisfied than dissatisfied with various case 

management processes. Moreover, where some dissatisfaction was expressed, 

complaints are more directly related to the level of cooperation from OSHA 

participants in the case rather than OSHRC. If there is room for improvement, it 

may be in scheduling; about 49 percent of MSP survey respondents believe the 

scheduling of motions, hearings, and other matters was prompt; however, about 

31 percent do not. Comparatively, participants in Conventional Proceedings 

appear to be generally more satisfied with the prompt scheduling of conferences, 

motions, and other matters; a total of 88 percent of survey participants either

agreed or strongly agreed that the scheduling of conferences and other matters 

was prompt.

• Participants in both OSHRC programs give the agency high marks for procedural 

justice. With majorities ranging between 70 percent and 90 percent respondents 

report satisfaction with the fairness of OSHRC processes, satisfaction with the 

respect with which they were treated, and the level of control they had over the 

process. Majorities in both groups also reported that they were able to participate 

in their case as fully as they needed (MSP 82 percent; Conventional 94 percent).

• Participants in both OSHRC programs give the agency high marks for clarity of 

rules. About 84 percent of MSP survey respondents agree or strongly agree that 

OSHRC’s rules of procedure are easy to understand, compared to 79 percent that 

express similar levels of agreement in the Conventional Proceedings survey.

• Distributive justice indicators also suggest high marks for the agency for both 

survey groups. A majority of MSP survey respondents reported that they were 

either very satisfied or satisfied (68 percent) with the overall outcome of their 

recent experience with the Mandatory Settlement Part compared to only 16% who 
7

were very dissatisfied or dissatisfied. MSP results are comparable to those of 

Conventional Proceedings, in which a total of 79 percent of survey respondents

were either satisfied or very satisfied with the overall outcome of the case

compared to only 3 percent were either dissatisfied or very dissatisfied.

• Participants in both OSHRC programs report mixed opinions on the timing of the 

information exchange in their respective programs. In MSP, 41 percent of all 

survey respondents felt that discovery occurred at “just the right time,” whereas 

about 57 percent of respondents felt that discovery occurred either too early or too 

late. Of the Conventional survey respondents, 74 percent felt that information 

exchange in advance of any trial began at just the right time; 6 percent thought it 

began too early, and 9 percent thought it began too late. Fifty-three percent of 

Conventional survey respondents felt that information exchange in advance of any 

trial ended at just the right time, compared to 18 percent that thought it began 

early, and another 18 percent that thought it began late.

• The preferences for different adjudicatory processes differ by program. Recent 

MSP participants are more likely to prefer formal or official settlement processes 

(48 percent), than a trial on the merits (18 percent). This result implies most MSP 

participants agree with the assignment of their case to Mandatory Settlement Part. 

Conventional Proceedings participants share a similar but less strong preference 

for formal or official settlement procedures over a trial: based on their most recent 

experience, 33 percent of Conventional participants prefer to engage in formal or 

official settlement processes before a settlement judge, compared to 24 percent 

who prefer a trial on the merits.

These results suggest that MSP is generally successful in the view of external 

stakeholders. Had there been a substantial difference between MSP and Conventional 

proceedings in participants’ perceptions of fairness or satisfaction with various aspects of 

the programs, this might have prompted some reassessment of the program. However, 

these findings corroborate results in other analyses that MSP is playing an important and 

useful role in the overall dispute system design for handling cases at OSHRC. 

Conclusions

The analyses of data from three sources, internal stakeholders, case management data, 

and external stakeholders, are consistent with each other and generally support the 

conclusion that Mandatory Settlement Part is successful in helping the agency achieve its 

objectives. The analyses also suggest that it may be possible to improve both the MSP 

program and the function of the overall OSHRC dispute system design of which it is a 

part by making adjustments in how cases are assigned to MSP using case characteristics, 

improving ALJ training in mediation and settlement practices, improving case 

management through sharing of best practices, and reconsidering certain internal 

organizational rules (e.g., regarding administrative stays and extensions). Considering the 
8

changes in the external enforcement climate within which the agency operates, it has 

done an admirable job addressing an increased caseload within constrained resources 

while at the same time meeting the expectations of its external stakeholders.
9

Introduction

Federal executive branch agencies have authority to use negotiation, mediation, and other 

dispute resolution processes under the Administrative Dispute Resolution Act of 1996 (5 

U.S.C.A. Section 571, et seq.; Federal Interagency ADR Working Group, www.adr.gov). 

The majority of federal agencies initially adopted dispute resolution in the areas of 

employment and procurement (Bingham and Wise 1996); the use of dispute resolution in 

civil adjudicatory proceedings and enforcement emerged more slowly (Nabatchi 2007). 

Under the Alternative Dispute Resolution Act of 1998, Congress directed federal civil 

trial courts to develop alternative dispute resolution (ADR) programs; many programs 

entailed mediation and the use of various designs to encourage settlement. Mediation is a 

process in which a third party who generally is neutral or impartial aids the disputants in 

negotiating a resolution to their dispute. Mediation usually entails identifying issues, 

using problem-solving communication techniques and caucusing with parties in 

confidential settings. While there is no consensus in using the term mediation to apply to 

settlement judges or judicial settlement conferences, it is generally accepted that judges 

use these techniques in this role.

The Occupational Safety and Health Review Commission (OSHRC) was one of the first 

agencies to develop an innovative program providing dispute resolution by agency 

Administrative Law Judges (ALJs) for cases involving civil enforcement. Settlement Part 

provides settlement judges for cases entailing certain penalty citations that come to 

OSHRC on appeal from OSHA. 29 C.F.R. § 2200.120, et seq. The program has both 

voluntary and mandatory procedures to promote settlement. A party may request that the 

Chief ALJ (CALJ) assign a case to a settlement judge for a period of not more than fortyfive (45) days in Voluntary Settlement Part (VSP), and if the other party agrees, a 

settlement judge will attempt to help resolve the case. 

A second program, Mandatory Settlement Part (MSP) applies to cases involving penalties 

of $100,000 or more. The pilot program of Settlement Part originally required citations 

for penalties in excess of $200,000 for mandatory referral into the program. In 2005, the 

regulations were amended to reduce the jurisdictional amount to $100,000. 

The regulations specify as follows for MSP. The CALJ assigns cases to a settlement 

judge. The settlement judge is a different ALJ from the one assigned to hear the case 

should it proceed to adjudication. The settlement judge has authority to issue a scheduling 

order and supervise discovery. At the conclusion of discovery the Settlement Judge will 

conduct settlement proceedings during a period not to exceed 60 days. 29 C.F.R. §

2200.120 (b)(2)(ii). If, at the conclusion of the settlement proceedings the case has not 

been settled the Settlement Judge notifies the CALJ, who in turn may, at his/ her 

discretion, allow an additional period of time, not to exceed 30 days. C.F.R. § 2200.120 

(f)(1). Settlement judges also have the authority to “confer with the parties on subjects 

and issues of whole or partial settlement of the case and seek resolution of as many of the 

issues as is feasible,” to “require the parties to provide statements of the issues in 

controversy and the factual predicate for each party's position on each issue and may 

enter other orders...,” to “suggest privately to each attorney or other representative of a 
10

party what concessions his or her client should consider and assess privately with each

attorney or other representative the reasonableness of the party's case or settlement 

position,” and to “convene and preside over conferences between the parties” either in 

person or by telephone, as well as discretion to engage in other settlement activities. 29 

C.F.R. § 2200.120(c) and (d). 1

MSP is part of a larger dispute system design at OSHRC that includes Simplified and 

Conventional Proceedings. Indiana University’s School of Public Environmental Affairs 

(under the aegis of the then Indiana Conflict Resolution Institute) conducted an 

evaluation of the pilot for MSP in 2001. Since that time, the MSP program has become 

permanent and has been in place across two presidential administrations with differing 

policy priorities. During this period, the nature and volume of cases brought to OSHRC 

have changed. The volume of cases has increased by about fifty percent; at the same 

time, the penalties OSHA assessed have increased and the nature of the citations has 

changed in that there are more willful charges. 

In the context of these changes in the program and its environment, OSHRC 

commissioned a new evaluation of Mandatory Settlement Part. We have organized this 

report into sections that include executive summary, introduction and design for 

evaluation, and three main sections reporting results of internal stakeholder interview 

results, analysis of archival records in the case management database, and external 

stakeholder participant surveys.

Design for Evaluation

We designed the evaluation in collaboration with the agency through the following steps:

1. Consult with staff, including subject matter experts (SMEs) from the 

Office of the Chief Administrative Law Judge (CALJ) and/or their designee, and 

other stakeholders to determine project priorities and clarify goals

2. Assist in the development of performance indicators

3. Review data from the existing event driven case tracking system 

4. Collaborate with staff to develop research design (survey instrument(s), 

interview protocol(s), and other preparation based on research questions)

5. Establish safeguards to ensure that the research design model is 

strategically focused on the quantitative and qualitative factors necessary to 

evaluate the overall effectiveness of the Agency’s Settlement Part Program

6. Collaborate with staff to identify and collect data

The design included three parts: internal stakeholder interviews, archival case 

management data, and external participant surveys.

Internal Stakeholder Interviews

																																																												 1 The procedural rules are set forth more fully at http://www.oshrc.gov/procrules/2200subh.html. 
11

The first part of the research design involved internal stakeholder interviews. We planned 

to conduct a series of interviews with Administrative Law Judges, Commissioners, and 

various staff at OSHRC. There are two purposes to this component of the research: (1) to 

illuminate other aspects of the program that may be important to OSHRC internal 

stakeholders that may not surface in the event history analysis and the surveys; and (2) to 

explore the explanations and key factors related to cases that in which the settlement 

period exceeded one year. According to OSHRC yearly performance reports and other 

agency documents, one outcome goal of the agency is to resolve the oldest cases on the 

docket and in particular to increase the percent of cases that settle within one year. These 

interviews were useful for identifying extreme cases that are pulling up the overall 

average settlement time. 

Case Management Database Analysis

To focus this portion of the evaluation, we identified the main research questions as 

whether Mandatory Settlement Part is more efficient that the conventional track for 

resolution of OSHA contested violations, and the efficiency in terms of cycle time of 

various Settlement Part processes. We then planned to conduct analyses including 

varieties of regression analysis on an appropriate sample of data from the case 

management database.

Research Question 1: Is Mandatory Settlement Part more efficient than the 

Conventional track for resolution of OSHA contested citations?

To answer this research question, we planned to compare outcomes of Conventional 

cases with those assigned to Mandatory Settlement Part while taking into consideration 

substantive case variations. More specifically, in May of 2005, the Commission lowered 

the threshold for cases eligible for Mandatory Settlement Part (29 CFR §2200.120) from 

$200,000 to $100,000. This provides a criterion for case selection. From a research 

design perspective, the first outcome of interest is the length of time in days until a case is 

resolved. (Most of OSHRC documentation refers to resolution time in days and key 

agency goals aim to reduce the average number of days for various categories of cases.) 

The Commission’s rule change had no effect on two groups of cases, those above 

$30,000 but less than $100,000 and those cases above $200,000. For analysis, we can 

treat the group affected by the change as the treatment group and those unaffected as 

control groups. Using a random sample of cases before and after the policy change date, 

we can test whether the lowered cap leads to quicker resolution of cases (all else equal). 

In other words, we can isolate whether the Mandatory Settlement Part processes or other 

factors are producing the observed outcomes. 

We planned to use various regression equations to analyze the data. Regression is a 

widely used statistical technique for predicting the influence of various factors 

(independent variables) on an outcome (dependent variable). In the context of this study, 

we want to understand the influence that case characteristics have on the average number 

of days to resolution (cycle time). These include, but not limited to, industry type, market 

factors, nature of the case, level of complexity, area office, region, attorney 
12

representation, prior history of complaints or relationship history, number of parties in a

case, and others factors (for both Settlement Part cases and conventional cases). Using 

regression methods we can also report confidence levels; that is, we can definitively say 

which findings are not due to chance. We also want to account for the fact that cases may 

differ systematically in the different time periods. Regression allows us to analyze these 

factors to explain variation in time to resolution in ways useful to the Commission. 

Research Question 2: How efficient are various Settlement Part processes?

This research focuses on the different structural elements of Settlement Part and how 

much time they add to (or subtract from) overall time to resolution. To identify the 

elements for our focus, we reviewed the narratives on proposed and amended rules (29 

CFR Parts 2200 and 2204) and gleaned from them various elements in the dispute 

systems design for Settlement Part that the Commission may consider important. 

Likewise, it is clear from the various rule proposals and changes that the Commission 

continues to consider various rules that provide or restrict process flexibility. 

More specifically, the Commission proposed amending rule 29 C.F.R. §2200.51 to 

eliminate the requirement for a pre-hearing conference to give judges more discretion in 

establishing deadlines for motions, completion of discovery, joining of parties, and 

similar matters. This rule was passed. Thus, the structure of Settlement Part raises more 

specific questions, for example:

• What is the time added or saved when the Settlement Judge requires the 

Respondent to be represented by a company official with authority to settle? 

• What effect, if any, do the rules for the time and place for the settlement 

conference have on case resolution? 29 C.F.R. §2200.120 (d). 

For this part of the study we planned to confine our selection to cases that entered 

Settlement Part and actually settled. Litigated cases will not be part of the sample. As 

framed, the outcome of interest is settlement and the time to settlement is the number of 

days a case remains in Mandatory Settlement Part, which we call cycle time. 

The population of interest includes all those cases that are contested that meet the 

established criteria (> $200,000 prior to May 2005; >$100,000 after May 2005). The case 

selection method is considered “stratified random sample.” This method will ensure a 

sufficient sample of relevant subgroups while also guarding against an unrepresentative 

sample (e.g. cases from one region settled in voluntary settlement period). For analysis 

purposes, the time period of interest begins when the case is marked “complex” and 

qualifies for MSP. 

We originally planned to use an analytical technique that focuses on the effect of factors 

that determine the length of time until the occurrence of an event, which is called event 
13

history analysis (sometimes referred to as survival analysis). However, the nature of the 

case records in the database did not allow for that technique, so instead we relied on 

linear and logistic regression. 

External Stakeholder Surveys

The external stakeholder survey was aimed at participants in Settlement Part and 

Conventional proceedings, specifically, solicitors from the Department of Labor (the 

attorneys who represent OSHA), Representatives of employers who contested the citation 

(attorneys and non-attorneys), and Representatives of Employees or unions (attorneys 

and non-attorneys). We planned to survey a sample of those individuals who were most 

recently and directly involved in all aspects of the Mandatory Settlement Part. We 

believed this group was unique in their first-hand experience. Their overall perceptions 

and/or concerns are key to evaluating satisfaction with process (procedural justice) and 

the outcome (distributive justice). This group is also likely to have important insights on 

the case management factors related to a cooperative solution (settlement) versus a noncooperative solution (litigation). We assumed at some point members of this group made 

a rational choice between the two options. 

The survey sample was not planned to be entirely random, but instead was stratified. In 

other words, we planned to systematically select cases that reflect a range of variation 

with respect to the outcome (perceptions about the efficiency and efficacy of Settlement 

Part) as well as the factors that impact the outcome (attorney and non-attorney 

representation, location of place cited, industry type, level of complexity, and parties with 

and without previous experience with OSHRC). Toward that end, we planned to explore 

the dataset to determine the various combinations of these characteristics. 

Data Collection 

In order to provide a comprehensive picture of the program, the evaluation design 

entailed triangulation of data sources: data from internal stakeholders, case management 

software at the agency, and external stakeholders who participate in OSHRC processes. 

Data collection methods included conducting qualitative interviews, collecting records 

relating to the recent history of the agency, creating a database of archival case records, 

and administering a mail survey. 

We gathered recent historical records on OSHRC and its various programs for case 

resolution. We reviewed several reports and agency-issued guidebooks to understand 

agency’s goals, the criteria used for case assignment, and the various tasks associated 

with handling the different types of cases:

• Year-end Performance and Accountability Reports available through the agency 

website (FY 2009, FY 2010, FY 2011), 

• Performance Budget and Justification Reports available through the agency 

website (FY 2009, FY 2010, FY 2011)

• OSHRC Strategic Plan 2010-2015
14

• OSHRC Guide to Conventional Proceedings (Nov 2007)

• OSHRC Guide to Simplified Procedures (March 2010)

• OSHRC Rules of Procedure (Aug 2005) 

• Employee Guide to Review Commission Procedures (May 2006) 

The agency also supplied samples of many of the documents used for case management 

and several sample legal documents (motions, scheduling orders, notice of decision). We 

reviewed various documents, rules and procedures from Occupational Safety and Health 

Administration (OSHA) to understand the different types of citations, items, and 

penalties assessed as well as to understand the timing of events pre-OSHRC. Our 

working understanding of the life cycle of a case from the time the employer receives an 

OSHA citation to the time it is resolved at OSHRC is illustrated in Figures 1 and 2. 2

Figure 1: Timeline for case processing pre-OSHRC

																																																												 2 Deadlines are typically counted as “working days.” See generally, Part 2200 Rules of Procedure 

at: http://www.oshrc.gov/procrules/. 
15

Figure 2: Timeline for OSHRC Settlement Part

The agency’s information technology department supplied us with sample documents 

used for case processing and also provided us with data files and records dating from 

1993 to September 2011 to use in our analysis. We worked closely with that department 

over several months to collect and prepare for analysis data stored in the Microsoft 

Access database and case management system. Because MS Access is a relational 

database, we had to convert files to a flat format compatible with our statistical software 

before we could undertake statistical analysis of the records. 

We worked with four main files from MS Access and merged records to create one flat 

file compatible with our statistical software, Stata:

• Main case file (38, 834 records)

• Citation file (55,689 records) 

• Events file (628,663 records)

• Hearings file (18, 927 records)

For the surveys, we entered responses into Qualtrics for analysis. For clarity of reporting 

purposes, we consolidated some categories of responses in the tables.

The researchers made every reasonable effort to verify the accuracy of the data, including 

identifying, verifying and correcting to the extent possible any discrepancies in the data. 

The validity of our analysis and conclusions are, in part, a function of the accuracy in 

OSHRC’s records.
16

Section A. Internal Stakeholders’ Assessments of Mandatory Settlement Part

Introduction

Settlement Part uses a settlement judge design to mediate and resolve cases rather than 

adjudicate them. There is a limited body of early research on judges as mediators. 

Empirical field research on judicial mediation in civil trial courts tells us that judges are 

unlike most other mediators in that they are more powerful than the disputants; they can 

undertake a variety of techniques including “blunt utilization of power.”1

From surveys of state and federal judges, Professors Wall and Rude identified three 

strategies judges use in settlement conferences; they named these the logical, aggressive 

and paternalistic strategies.2 Their survey of lawyers revealed that they believed the 

logical mediation strategy to be most effective; a factor analysis identified this strategy as 

suggesting a settlement figure after asking for lawyers’ input, evaluating or analyzing the 

case for one or both parties, or suggesting they split the difference.3

Wall and Rude found that lawyers believed that an aggressive judicial mediation strategy 

was least effective; this strategy included techniques where the judge coerces parties to 

settle, threatens a lawyer for not settling, and penalizes a lawyer for not settling. 

Somewhere in between fell what they called the paternalistic strategy, involving judges 

who meet with lawyers in chambers, talk to both lawyers together and separately about 

settlement, and call a certain figure reasonable. 

Interestingly, judges in the Wall and Rude study did not identify a client-oriented 

strategy, but the independent survey of lawyers found that they highly valued this 

approach, which included judicial attempts to enhance attorneys’ relationship with 

clients, persuade clients to accept a settlement, and convince clients that they are 

receiving their day in court.4 Nevertheless, a separate survey of judges and in-depth study 

of one judge’s mediation cases indicated that the perceived and actual probability of 

settlement increased as the judge used more assertive techniques.5

These settlement judge techniques reflect either evaluative or facilitative mediation, 

which are more commonly practiced in courts. They do not use transformative mediation, 

which is a model that focuses on interpersonal relationships between disputants and more 

commonly practiced in divorce, employment, and community settings (Bingham, 

Hallberlin, Walker, and Chung 2009). 

																																																												 1 James A. Wall, Jr. and Dale E. Rude, Judicial Mediation: Techniques, Strategies, and 

Situational Effects, 41(2) J. of Social Issues 47 (1985).

2 Wall and Rude at 58.

3 Id.

4 Id. at 57.

5 James A. Wall, Jr. and Dale E. Rude, The Judge as Mediator, 76(1) J. of Applied 

Psychology 54 (1991).
17

Robinson (2012) conducted a more recent study that examined judicial settlement 

techniques in state courts, and found that “judges regularly encourage settlement by 

emphasizing costs and risks of litigation;” that they “are generally competent at 

encouraging compromise;” that “most judges can improve their effectiveness at 

facilitating communication” in settlement, and that “most judges avoid an intimidating 

approach and, in contrast, attempt to be likeable.”6 Robinson has also found that judges 

differ in the extent to which they consider their work promoting settlement to be 

mediation. Some judges embrace the concept of mediation as describing their work, 

while others consistently term it settlement. This study was not yet published at the time 

we conducted interviews, but is consistent with our findings here.

We interviewed key personnel of OSHRC, including judges, commissioners, and key 

staff to obtain their insights on OSHRC programs and how they might be improved. We 

also asked about best and most effective settlement practices. Eighteen interviews were 

completed in total. Most of the interviews were conducted face-to-face during December 

2011 in Atlanta, D.C, and in Denver. Two interviews were completed by phone in early 

2012. Since the interviews were conducted during the early stages of the research project, 

the responses provided the added benefit of informing the record analysis and design of 

the survey. 

Protocol /Interview Design

In February 2011, Indiana University provided a draft of interview questions as part of 

the original research proposal. Over several months, every administrative law judge at 

OSHRC had the opportunity to review and comment on the interview protocol and the 

questions. The protocol was then further developed and refined in conjunction with the 

OSHRC’s contracting officer (CO) and the contracting officer’s technical representative 

(COTR). We submitted the protocol for voluntary interviews and questions to the Indiana 

University Human Subjects Committee, its research ethics Institutional Review Board 

(IRB), which approved them.

The final interview design consisted of two different sets of questions (Attached as 

Appendix A-1 and A-2), one for judges and one for OSHRC stakeholders who are not 

judges. Questions for administrative law judges covered general background 

information, including length of service, previous experience, and the extent of their 

training in dispute resolution techniques. We also asked questions to ascertain individual 

judges’ perspectives on various aspects of Mandatory Settlement Part (MSP), for 

example, why some cases take much longer than others to settle, what factors are likely 

to delay or expedite cases, what is the appropriate role of discovery, and what techniques 

they have found to be most effective in resolving cases. We asked non-ALJs about their 

role and familiarity with various aspects of the MSP program. We also asked this group 

whether they thought MSP could be improved in its design and management, and 

whether current regulations should be revised. Lastly, we inquired asked other internal 

																																																												 6 Peter Robinson, An Empirical Study of Settlement Conference Nuts and Bolts: 

Settlement Judges Facilitating Communication, Compromise, and Fear. 17 HARV.

NEGOT. L. REV. 97, 101 (2012).
18

stakeholders what information might be useful for Congress, the public, or other agencies 

regarding MSP and OSHRC programs more generally. 

Sampling and Responses

Our aim was to obtain the unique insights of OSHRC “insiders.” From a sampling 

perspective, we wanted to ensure a maximum diversity of interviewees, covering three 

groups of respondents: judges, commissioners, and key staff. Maximum diversity is best 

achieved through purposive sampling, not random sampling. Given the structure of the 

interview, results cannot be generalized to a wider population.

We interviewed key people from all three OSHRC offices (Washington, DC; Denver, 

CO; and Atlanta, GA) including nine active administrative law judges and two active or 

former commissioners. We also interviewed nine others key personnel from the major 

offices within OSHRC. Interviewees’ length of service with OSHRC ranges from three 

and one-half months to over thirty years. Interviewees also have a broad range of 

previous litigation and mediation experience. Participants in our sample span at least 

three presidential administrations. 

All three targeted groups (judges, commissioners, and key staff) are represented in the 

responses. The interviews were fully voluntary and all respondents were informed on 

several occasions that they did not have to participate if they did not want to. In designing 

the process, we conducted the interviews where the respondents would feel most 

comfortable, which meant that interviewers traveled to Denver, Atlanta, and Washington 

D.C. All of the interviews were conducted by one of the two IU research co-principal 

investigators. With the help of the project CO, we made appointments ahead of time to 

accommodate tight schedules of the interviewees. 

All respondents were told the purpose of the research, why they were chosen, and the 

expected duration of the interview. We designed the interview to take under 30 minutes, 

but also encouraged the respondents to take as long as they wanted to share answer the 

questions and share their thoughts. We also assured the interviewees that we would not 

disclose names or associate individuals with specific responses in our final report. 

Results

We grouped the responses by topic and sub-topic based on the frequency of the 

sentiments and ideas expressed and also on the research goals. So as to maintain the 

confidentiality of the respondents we report responses in aggregate form. We only 

indicate categories of respondents where confidentiality will not be compromised. 
19

Topic 1: The Value of Settlement Part Compared to Conventional Proceedings

ALJs 

Most of the ALJs believe that MSP is a valuable part of OSHRC and very effective 

compared to more formal conventional proceedings. The judges cited several important 

characteristics of MSP. It requires less time than cases that demand a trial and does not 

require the judge to write a formal decision. Appeals are much less likely. With respect 

to benefits to the parties involved, some judges believe MSP is less adversarial and less 

stressful. As one judge commented, MSP is always better than long-term litigation 

because it allows parties to get on with their life. One individual expressed that MSP is 

used as a tool for managing a caseload that is growing in an environment where the 

budget is constricted. 

A few judges did not express negative sentiments about MSP, but were also not 

necessarily convinced that MSP was always better than formal proceedings. As one 

judge expressed, one is not better than the other; the processes are complementary, and 

the value of MSP depends on the nature of the case. Another judge explained that 

complex cases with 150 citations should not be subject to MSP. This individual had a 

better experience in MSP with cases under $500,000. Two judges expressed that 

mandatory settlement is a good concept for a certain range of cases. A few judges 

expressed some skepticism with respect to the comparative value of MSP. One said, "I 

don't think we know which process is better because it depends on whether the case 

should have been assigned to Settlement Part in the first place." A couple of judges 

believe that most cases will settle regardless of whether it is assigned to MSP or not. 

Another expressed “mixed feelings” and “mixed success” in MSP. One suggested 

adopting the concept used in the U.S. district court: make a meet and confer mandatory to 

determine if a case can be settled, certify to court, and hire a third party neutral for 

settlement.

One judge was not at all comfortable with requiring or mandating settlement for any 

cases, suggesting that assignment may conflict with the Commission’s statutory mandate 

to provide all parties with the opportunity for a hearing. Another judge thought that there 

was no substitute for common law adversarial proceedings.

These comments reveal that there is wide variation in how ALJs view MSP and their 

roles both as ALJs and mediators or settlement judges. Some are more comfortable in the 

role of settlement judge than others.

Non- ALJs 

Overall, internal stakeholders who were not judges (non-ALJs) were more skeptical of 

the value of MSP. Non-ALJs frequently expressed the belief that many cases would 

probably settle regardless of who they were assigned to or whether or not they were 

assigned to Mandatory Settlement Part. Another frequently expressed concern involved 

the criteria used to assign cases to MSP. A few non-ALJs believed that too many cases 
20

are assigned to MSP that should instead be assigned to trial initially or designated as 

“simplified.”

Others expressed concern with the amount of time spent on settlement. According to one 

individual, settlement is not a complete panacea and too much time is spent on cases that 

are not likely to settle. Another suggested that settlement is not always the best answer, 

and that the public would not be satisfied if government settled some cases, suggesting 

that some cases require adjudication to set a public precedent or implement government 

responsibilities.

Non-ALJs also expressed some positive sentiments about the Mandatory Settlement Part 

program. One suggested that the amount of time and other resources spent on MSP is 

justified because settlement provides parties with ownership of the outcome and is 

important to ongoing relationships; more specifically, settlement is likely to increase 

compliance and promote a better relationship between businesses and unions. Settlement 

provides a big advantage if the workplace becomes more safe as a result. The same 

respondent added that it is also possible that settlement decreases the number of cases 

that reach the Commission level. 

Topic 2: Reasons that Some Cases take Much Longer than Others 

Only administrative law judges were asked directly, “Why do you think some cases take 

more than a year and sometimes more than two years to settle?” Thus, most of the 

sentiments expressed on this topic come directly from the judges. However, some 

responses to other questions by non-ALJs appropriately fit under this topic. 

Judges frequently noted and discussed the criteria for case assignment, sometimes 

directly and sometimes more indirectly. For example, one judge stated plainly that case 

assignment does not always reflect the nature of the case. A few judges said the 

likelihood of settlement is often not driven by the amount of the penalties but by the 

larger agenda of the parties. As one judge put it, “Many cases have a back story that does 

not show up in the bare facts of the complaint.” Judges frequently gave examples of cases 

with larger implications for the parties than appeared on the surface. For example, some 

cases affect multiple locations for a business or have industry-wide implications. Also, 

businesses often want to avoid getting tagged with certain types of violations that 

adversely affect their ability to secure large contracts with government or have negative 

insurance implications. 

For OSHA’s part, some judges believe that the Solicitor of the Department of Labor 

(DOL) is often not willing to settle from the start. A couple of judges observed that DOL 

often wants to send a message to industry regarding cases involving “willful” violations 

and cases involving “egregious” conduct. One judge suggested that DOL has varying 

priorities regarding the types of cases and violations for which it is willing (or not) to 

settle. Specifically, willingness varies with the priorities set by the presidential 

administration. Two judges observed that scheduling of cases and the likelihood of 

settlement are often hampered by jurisdictional issues. Specifically, some types of cases 
21

involving willful violations require the involvement of multiple OSHA offices or 

approval from the OSHA Washington office. This adds days to the life of a case or 

reduces the prospects of settlement. Cases involving criminal allegations that invoke the 

jurisdiction of the Department of Justice (DOJ) also fall into this category. OSHRC has a 

policy of issuing a stay on these cases until the DOJ has finalized its action on the case. 

One judge suggested that OSHRC might want to revisit the practice of staying cases until 

after DOJ resolution. 

The Judges noted several other characteristics of cases that are likely to add to the 

number of days a case remains active, including when technical reports are necessary to 

ascertain facts; when the underlying violations involve severe injuries or deaths; when 

many attorneys are involved in a case; when a case is highly publicized, when a union is 

involved and the union is simultaneously involved in collective bargaining for a contract; 

when cases are funded by a trade association; and when the underlying OSHA inspection

was initiated by a grievance or complaint. One judge stated that when parties want to go 

through discovery, it adds time to the case. Another pointed out that when there are 

3,000 pages of transcript, it is going to take a considerable amount of time considering 

the amount of citations. In addition, the recent retirement or departure of ALJs combined 

with the increase in caseload by fifty (50) percent has added to a delay in processing 

time.

Several respondents suggest that some case delays are avoidable. One respondent said 

that most judges can find a creative solution when they want to. Another said that “a 

sharp judge” recognizes the characteristics of a case that contribute to delays or 

settlement failures and that these cases can be reassigned.

Two respondents commented that the assignment of cases to specific judges may 

contribute to delays. A couple respondents said that some judges are better at settlement, 

while others are better at trials, suggesting the length of a case could be shortened by 

matching the type of case to the individual skill set of the judge. Similarly, one 

respondent suggested that some judges have developed an expertise regarding specific 

industries. One respondent said that assignments and scheduling are sometimes based on 

what is most convenient for the judge and not the parties. Another respondent suggested 

that assignments should be based on which OSHRC office was closest to the complainant 

business. 

Topic 3: Proposals for Reducing Time on the Docket

All ALJs provided suggestions for reducing time a case spends on the docket. Several 

judges proposed setting early trial dates to encourage settlement. One judge thought this 

would increase the sense of urgency and help parties focus on the issues. Another judge 

contrasted this viewpoint by questioning the role an ALJ fulfills if parties are pressed to 

go forward when the case is not ready. 

Other solutions included facilitating the exchange of documents and conversations. To 

better manage multiple cases, one judge advocated for sophisticated writers for judges 
22

and instituting a case tracking system such as ProLaw. Another suggested consolidating 

cases by region and then by issue. One judge recommended separating the part of the 

case that will settle from that part that will go to trial to reduce time spent on the docket. 

Although non-ALJs were not directly asked this question a few expressed their opinions 

on how to reduce time spent on the docket. One questioned why the agency did not use 

distance to hearing location as the basis for scheduling or assigning cases. This echoes 

the sentiment of the judge who suggested consolidating cases by region. Another 

believed that figuring out a way to recognize and manage novel cases would reduce the 

length of time spent on non-novel cases.

Topic 4: Effective Techniques Used in the Facilitation Settlement

Only ALJs provided responses for effective techniques used in facilitation settlement. 

Each judge used a variety of strategies. An overarching theme was that each case is

unique and requires different methods. 

Several judges viewed their role primarily as a facilitator and mediator. One judge uses 

storytelling to help people open up. Two judges preferred face-to-face meetings rather 

than telephone calls. One judge encourages parties to consider what they really need to 

get out of the case. Another found that keeping proceedings less formal and less 

adversarial works better. One judge uses role-playing exercises learned in a Civil 

Mediation course. This judge observed that when you start to see a case from the 

different perspectives of the parties, you get a better sense what will help and what will 

hinder settlement. Other tactics used by judges included avoiding hard and fast rules, 

attempting to make the pie bigger, using shuttle diplomacy, pushing the tables together in 

talks, and requiring the submission of a confidential statement from both sides.

In contrast to this, one judge expressed opposition to serving as a facilitator. This judge 

refuses to engage in shuttle diplomacy and likened it to negotiation for a used car. 

Another judge expressed a wish for videoconferencing, to reduce cost and time and cited 

the Social Security Administration as an example of an agency that currently does this. 

Another judge threatens a cutoff date for the reason that it is the only thing that promotes 

settlement. One judge expressed that there is some resistance internally to using 

techniques promoted by the Administrative Conference of the United States. Another 

said that some judges are better in trial and others are better at facilitating settlement or 

conducting mediation, and that judges should be matched to cases depending on what 

skills the case requires.

Topic 5: Appropriate Role of Discovery in Settlement Part

Only ALJs provided responses to the appropriate role of discovery in Settlement Part. 

The majority of those interviewed either preferred limited discovery or none at all. One 

observed that if a judge believes discovery will cause the parties to cement their position, 

it can be better not to engage in discovery or alternatively delay discovery. Other judges 

echoed similar thoughts including that the judge needs to be flexible in how much 
23

discovery is appropriate or to only allow discovery for the purpose of exchange and 

production. One judge thought that discovery helped in some cases but not all, and 

another expressed that discovery has limited utility in the settlement process.

Conversely, one judge stated that although discovery requires more work from judges, 

the earlier it is done the better. Another offered that there should be a defined minimum 

and maximum amount subject to specific court approval, but that they could not imagine 

a meaningful discussion in which their had not been some discovery. 

Topic 6: The Usefulness of Requiring Parties to Bring Officials Who Have Authority 

to Settle

Only judges were asked about the usefulness of requiring parties to be represented by 

officials who have authority to settle. Almost all judges thought it was critical and 

necessary to require this. The reasons for this included that egregious cases must go 

through Washington DC and that it could delay the settlement if no one was there. One 

judge stated that it could waste substantial time if parties strike what appears to be a 

bargain and then one of them says, “All I have to do is call the president of the company 

to get approval.” There is the possibility the president will say no because he/she was not 

present at the settlement conference.

Judges who did not think it was necessary observed there are cell phones now, so parties 

can easily reach out to a decision maker. Another expressed that even if no one is there 

on the day of the discussion, settlement can always be done the next day or the day after. 

One judge thought that having an attorney there as the authority added objectivity, but 

another thought that lawyers can sometimes complicate things when playing that role.

Topic 7: Dispute Resolution and Mediation Training Needs

Only judges were asked about prior training and areas of improvement for training. All 

of the judges interviewed had completed some sort of mediation training ranging from a 

single-day course to certification in dispute resolution by the National Judicial College. 

The majority of judges believed that training was useful and thought that there were areas 

of improvement for education.

Areas of improvement included teaching techniques for mediation, negotiation, roleplaying, and dispute resolution. One judge thought that education about the politics of 

OSHA would be helpful. Similarly, a judge thought it would be useful to focus on 

OSHA specific training, citing changes from administration to administration in pressing 

cases or labeling violations as willful. Another recommended waiving fees for judges to 

take courses. One took the Civil Mediation course and believes all judges can benefit 

from these courses and techniques. Several judges recommended a Reno, Nevada course 

as being educational and helpful.

One judge thought that experience was the most pivotal part of learning techniques for 

Settlement Part and stated that although courses would be helpful for some judges, it was 
24

not necessary for all. Another echoed this by stating that time spent on cases is the best 

training. One of the challenges cited by judges was cost and limited resources to 

complete training.

Topic 8: Ways in Which Settlement Part Program, Design, Management, or 

Administration Can Be Improved

ALJs

Judges gave a variety of responses for ways the Settlement Part program could be 

improved. Several judges recommended that the case system management be improved 

by providing more complete case files and more detailed information at the beginning of 

the case. One judge wanted information to be provided about injuries or fatalities with 

respect to citations.

Several judges thought that the process management system should be improved. This 

included early assessment of expected number of days for trial, systematization of 

reporting data, and training for judges to handle complex cases that require discovery 

beyond exchange of documents.

Specific recommendations included kicking back or flagging a case that takes over two 

years to process. One judge thought that there should be leeway for threshold amounts 

that go to Settlement Part, and that the decision should be based on judges' caseload and 

number of judges available. Another judge thought settlement should always be optional 

and that videoconferencing would speed the process up and cut costs. One recommended 

that new judges be sent as soon as possible to the Reno, Nevada training for civil 

mediation and that they should accompany more than one judge when he/she goes out 

into the field to conduct mediation.

In addition to these suggestions, one judge thought that there should be an ongoing 

process internally for the judges and the agency to look at aspects of the Settlement Part 

program to ensure it is working well. They recommended establishing a number of 

questions that usually come up in cases and establishing a system for better recognizing 

high profile cases. Several judges proposed questions that should be standard or included 

in case files including the following: What occurred at OSHA? Who are parties? Were 

there deaths? How many parties were affected? What is really important to parties?

Non-ALJs

Non-ALJs also had recommendations that covered a broad spectrum. They expressed 

concern that cases are heard in inconvenient places and that costs can be significant to 

businesses. One individual thought that there should be higher accountability for 

reporting, and another recommended that judges be trained on what information should 

be tracked. One stated that the judges' mindset is too informal, and that there are no 

briefs, but rather ruling from bench with a minimal record.
25

Several individuals thought that willful citations presented a challenge in Settlement Part. 

Another stated that settlement is not always the best answer, and that government should 

not settle some cases. Another expressed that the term willful is a "problem for many 

parties and a barrier to settlement." One individual stated that it is difficult to draw a line 

between negligence and willfulness.

Other recommendations included increasing awareness of OSHA policy statements, 

changing e-mails from personal to government domain names, figuring out why some 

cases take as long as they do, and sending a case to pretrial first. Several individuals 

recommended expanding the number of categories for cases and developing new 

standards for handling criminal and/or novel cases. This included making a list of factors 

that underlie very tough cases including if the case involved willful violations, what the 

Solicitor's position is on settlement, and the type of violation being presented. Other 

suggestions included redefining what makes a case "complex" and assigned to judges for 

Settlement Part or trial based on their skill set.

Topic 9: Could Current Regulations of Settlement Part Benefit from Revision

ALJs

Several judges recommended that the threshold limit be revised for Settlement Part. One 

said that the "$100,000 threshold is arbitrary and may be too low. Case load has 

increased 50 percent in the last year, and $100,000 is not much anymore." Another 

recommended that the threshold be raised to $150,000 or $200,000. One thought that the 

threshold for Simplified Proceedings should not go up, and threshold for Conventional 

should not go down.

A few judges did not believe that rules needed to be revised; they thought the rules are 

already liberal and include a good deal of flexibility. One judge stated that timetables do 

not work. Another recommended that cases be assigned to different tracks and that 

regulations should reflect this. One judge did not like discovery and did not think it was 

as important as some judges do. Another thought that formal discovery process created a 

time constraint and that parties should be encouraged to provide voluntary information to 

each other. One suggested mandating meet and confer and letting parties hire private 

mediators.

Non ALJs

Non-ALJs offered suggestions for revision, including setting intervals for updating 

policies, upgrading the computer system, and expanding ADR. One individual was 

interested in feedback on threshold amounts, and another thought that judges needed to 

be trained in rules of federal procedure and best practices. One suggested that the 

Solicitor's office believes that judges often abuse their positions by demanding 

settlement. This individual also believed that judges were lax in record keeping. Another 

thought that there were issues regarding FOIA, but was not sure how this would be dealt 
26

with in current regulations. A final suggestion was to get positions of parties early in the 

process for discovery.

Topic 10: What Information Might Be Useful to Communicate to Congress, Other 

Agencies, or the Public Regarding the Work of OSHRC and Settlement Part

Only non-ALJs were asked this questions regarding useful information to communicate 

to Congress, other agencies, or the public. Some of the suggestions included educating 

people that when there is a shortage of commissioners, it interferes with completing work 

at the agency. Another indicated Congress and the public need information to understand 

the good work and positive results produced by the agency. One individual stated that 

although Settlement Part requires a lot of resources, there are benefits if it increases 

compliance and promotes relationships between business and unions. If workplace 

becomes safer as a result, this is a big advantage. 

Several individuals brought up that Congress, the public, and other agencies should be 

aware of the legacy of OSHRC and that it and OSHA are two different agencies. One 

thought that law clerks were unaware of the structure of agencies and different aspects of 

the process. Another was not sure if Congress recognized the importance of the agency. 

Conclusions and Recommendations:

Mediation and settlement are an art, not a science. There is considerable variability in 

practice across the ALJs. There are observations among both judges and non-judges that 

various factors may be contributing to case delay, including scheduling, discovery, the 

nature of the violations and penalties, stays pending DOJ action, and possibly, individual 

ALJ familiarity with dispute resolution practices and mediation.

• The interviews yield several recommendations and next steps:

• Provide training and regular continuing legal education in mediation and dispute 

resolution to every ALJ who is expected to serve as a settlement judge.

• Reconsider current policies on assigning cases to various regions and judges. 

Consider factors such as geographic proximity to case, industry expertise, and 

preferences of judges to act as settlement judge or traditional ALJ trying cases.

• Use empirical analyses to identify factors contributing to delay in resolution and 

identify relevant changes in judicial case management practices.

• Use empirical analyses to identify factors contributing to failure to settle, and use 

these to identify relevant changes in case assignment practices to Mandatory 

Settlement Part.

With this focus for further analysis, we turn to the analysis of the case management 

database.
27

Appendix A-1. Final Internal Stakeholder Interview Protocol for ALJs

Interview Protocol for OSHRC Administrative Law Judges

Introduction: Thank you for taking time out of your busy schedule to answer questions to 

help in our study. The main goal in this research is to assess Occupational Safety and 

Health Review Commission's (OSHRC) “Settlement Part” and to recommend 

improvements, if necessary, that will enable OSHRC to provide fair and timely resolution 

of disputes relative to OSHA citations. Your opinion is very valuable to us, especially 

given your direct experience with the process. Once we get through the initial questions, 

which should take about 30 minutes, please feel free to comment on any other aspects of 

Settlement Part you think are important to cover that we have missed. 

Before we begin, I want to emphasize that your participation is voluntary. You do not 

have to answer any questions that you are uncomfortable with. In addition, we will be 

reporting on aggregate not individual responses. This means that your name will not be 

associated directly with any comments/ opinions that you give. If, after completing the 

interview, you later wish to withdraw from the study, you may do so. In that event, we 

will not use your responses in any analysis.

Before proceeding, do you have any questions or concerns about the research ? [Pause to 

listen and respond]

[Proceed with open-ended questions, pause between questions to provide participants as 

much time as they need]

1. How long have you been a Judge for OSHRC?

2. About how many total cases have you been assigned in the past 12 

months?

3. About how many cases for Mandatory Settlement have you been assigned 

in the past 12 months?

4. About how many cases for Voluntary Settlement have you been assigned 

in the past 12 months?

5. In your opinion, is Settlement Part preferable or not to conventional 

proceedings? If it is preferable, how or why? If it is not preferable, why not?

6. In your opinion, why do some cases take more than one year, and 

sometimes more than two years, to settle?

7. Is it possible to reduce the time these cases spend on the docket? If so, 

how? If not, why not?
28

8. What techniques have been particularly effective for you in facilitating 

settlement?

9. In your opinion, what is the appropriate role for discovery in Settlement 

Part?

10. In your opinion, how useful is it to require that the parties be represented 

by officials who have the authority to settle?

11. What dispute resolution or mediation training have you had, if any? Was it 

helpful? How might it be improved?

12. In your opinion what training might be most helpful for Settlement Part?

13. Are there ways in which the Settlement Part Program, its design, 

management, or administration, could be improved? If so, how?

14. Do you believe that the current regulations on Settlement Part could 

benefit from revision? If so, how?

15. We welcome any other information, observations, or suggestions 

regarding Settlement Part that you think we should consider in this study.

[Pause. Record notes on any other information that the participant would like to 

share]
29

Appendix A-2. Final Internal Stakeholder Interview Protocol for Non-ALJs

Introduction: Thank you for taking time out of your busy schedule to answer questions to 

help in our study. The main goal in this research is to assess Occupational Safety and 

Health Review Commission's (OSHRC) “Settlement Part” and to recommend 

improvements, if necessary, that will enable OSHRC to provide fair and timely resolution 

of disputes relative to OSHA citations. A large part of the study focuses on your case 

processing system and analysis of that data. Another part deals with the experiences of 

the judges and other stakeholders directly or indirectly involved in the process. Even 

though you do not participate directly in Settlement Part in the same way the judges, 

attorneys, and union representatives do and do not have access to any confidential 

information shared during settlement conferences, you are an important part of OSHRC 

and your opinion is valuable to us. 

We want to make sure you have the opportunity to share any thoughts about the process 

that you think are important for us to know. We also want to give you the opportunity to 

ask us any questions about the study. We only have a few questions, which should only 

take about 30 minutes. Please feel free to comment on any other aspects of Settlement 

Part you think are important to cover that we may have missed. 

Before we begin, I want to emphasize that your participation is voluntary. You do not 

have to answer any questions that you are uncomfortable with. In addition, we will be 

reporting on aggregate not individual responses. This means that your name will not be 

associated directly with any comments/ opinions that you give. If, after completing the 

interview, you later wish to withdraw from the study, you may do so. In that event, we 

will not use your responses in any analysis.

Before proceeding, do you have any questions or concerns about the research? [Pause to 

listen and respond] 

[Proceed with open-ended questions, pause between questions to provide participants as 

much time as they need. It is also important to allow the participants to take the responses 

in whatever direction they feel is most appropriate] 

What is your current position at OSHRC?

How long have you worked with OSHRC?
30

How would you describe your involvement in the settlement part process at 

OSHRC?

Are there ways in which the Settlement Part Program, its design, management, or 

administration, could be improved? If so, how?

What information do you think might be useful for us to communicate to Congress, 

other agencies, or the public regarding the work of OSHRC, and in particular, 

regarding Settlement Part.

Do you believe that the current regulations on Settlement Part could benefit from 

revision? If so, how

We welcome any other information, observations, or suggestions regarding 

Settlement Part that you think we should consider in this study.

Notes: 
31

Section B. Efficiency in Case Management through Analysis of Archival Case 

Records

Introduction

Dispute resolution efficiency is often measured in the time it takes to resolve a case and 

the degree to which disputants actually comply with the resolution, usually measured in 

terms of repeat disputes in a civil trial context or recidivism in the context of victimoffender mediation in the criminal context.

Researchers who study court-connected dispute resolution have used archival data 

sources to examine how long cases remain on the court’s docket with and without ADR.1

For example, researchers found that arbitrated cases had shorter disposition times than 

litigated cases,2 and that arbitrated cases had shorter disposition times than cases litigated 

before the arbitration program was implemented, without slowing the disposition of cases 

left for litigation.3 Researchers studying ADR programs in Maine courts compared time 

to disposition and settlement by examining case records before and after the ADR 

program;

4 they found support for the general proposition that scheduling an ADR 

intervention earlier in the life of the case is better.5 So too, researchers studying an 

arbitration program in civil trial courts in Arizona found that the earlier in the life of the

case a county tended to assign a case to arbitration, the shorter the mean disposition 

time.6

																																																												

1 The following discussion is drawn in large part from Lisa Blomgren Bingham, Tina 

Nabatchi, Jeffrey Senger, and M. Scott Jackman. Dispute Resolution and The Vanishing 

Trial: Comparing Federal Government Litigation and ADR Outcomes, 24(II) OHIO 

STATE J. ON DISP. RESOL. 225 (2009).

2 E.g., MEIERHOEFER, at 95 (citing Eastern Pennsylvania results using a before and after 

design reported in E. LIND & J. SHEPARD, EVALUATION OF COURT-ANNEXED 

ARBITRATION IN THREE FEDERAL DISTRICT COURTS (Federal Judicial Center rev. ed. 

1983)).

3 Roger A. Hanson & Susan Keilitz, Arbitration and Case Processing Time: Lessons 

from Fulton County,

14 JUST. SYS. J. 203 (1991).

4 Howard H. Dana, Court-Connected Alternative Dispute Resolution in Maine, 57 ME. L.

REV. 349, 375 (2005).

5 Id. at 390–91 (2005) (reporting on a study of the courts comparing data from 2000, 

2002, and 2003). A study of 1995–1997 Maine pilot program also found support for an 

earlier intervention. Id. at 372. Similarly, Schmitz argues that earlier in the life of the case 

is better. Suzanne J. Schmitz, A Critique of Illinois Circuit Court Rules Concerning 

Court-Ordered Mediation, 36 LOY. U. CHI. L.J. 783, 792 (2005).

6 Roselle L. Wissler & Bob Dauber, Court-Connected Arbitration in the Superior Court 

of Arizona: A Study of Its Performance and Proposed Rule Changes, 2007 J. DISP.

RESOL. 65, 79–80 (2007).
32

The most comprehensive evaluation of court-annexed programs to date is popularly 

known as the Rand Report.7That study found no significant decrease in time to 

disposition in six court programs using mediation or early neutral evaluation. In one 

district, ADR increased time to disposition, but this was apparently a function of 

selection bias, in that judges encouraged the most intractable cases to use mediation and 

thus delayed trial. Similarly, the study found no significant evidence of cost savings. 

Meierhoefer found no overall evidence that court-annexed arbitration reduced time to 

disposition in a random assignment design.8 Other scholars, using a random assignment 

design to evaluate court-ordered arbitration in North Carolina, found that various 

programs reduced disposition time by 10%–45%.9Another group of researchers also used 

a random assignment design in the evaluation of the Western District of Missouri’s 

Federal District Court Early Assessment Program.10Early assessment is a form of early 

neutral evaluation in which a third party examines the merits of the case and gives an 

opinion on its strengths and weaknesses to the disputants. The evaluation examined the 

program over a period of four and one-half years, using random assignment including 

over three-thousand cases assigned to one of three treatments: mandatory, voluntary, or 

no assessment. In mandatory assessment, the parties received a neutral evaluation of the 

merits of their case whether they asked for one or not.11 In voluntary assessment, the 

parties could request the evaluation.12 In the no assessment condition, there was no 

neutral evaluation of the strengths or weaknesses of the case before trial.13 They found 

that mandatory assessment cases terminated significantly earlier than both the voluntary 

assessment and no assessment groups.14The researchers attributed the result in part to the 

timing of the assessment, in that a notice of session date was sent to the mandatory 

assessment cases when they were ready, while an invitation to participate was sent to the 

voluntary cases, creating a lag time during which the court and parties scheduled the 

session.15

Maine courts also used random assignment to assess impact on disposition time; while 

cases opting into ADR voluntarily had the shortest mean disposition time, cases 

																																																												 7 KAKALIK, et al., An Evaluation of Mediation and Early Neutral Evaluation Under the 

Civil Justice Reform Act (1997).

8 MEIERHOEFER, supra note 7.

9 STEVENS H. CLARKE ET AL., INST. OF GOV’T, COURT-ORDERED ARBITRATION IN 

NORTH CAROLINA: AN EVALUATION OF ITS EFFECTS (1989).

10 DONNA STIENSTRA ET AL., FED. JUD. CTR., REPORT TO THE JUDICIAL CONFERENCE 

COMMITTEE ON 

COURT ADMINISTRATION AND CASE MANAGEMENT: A STUDY OF THE FIVE 

DEMONSTRATION PROGRAMS ESTABLISHED UNDER THE CIVIL JUSTICE REFORM ACT OF 

1990, 219 (1997).

11 Id. at 226–231.

12 Id.

13 Id.

14 Id. at 247–248.

15 STIENSTRA ET AL., supra note 16, at 250.
33

randomly assigned to ADR also terminated more quickly.16 However, recent studies 

reveal that the length of time a case spends on the court’s docket is partly a function of 

the timing of the ADR intervention.17Spurr found that early intervention by a judge 

imposing a time schedule created a deadline effect and resulted in earlier settlement.18 In 

comparison, where mandatory arbitration is scheduled relatively late in the life of a case, 

it will tend to lengthen the time cases spend on the court’s docket.19This is because 

litigants delay their own bilateral settlement discussions and instead wait for the ADR 

intervention.20Lawyers delay settlement negotiations until the eve of—or after—

arbitration.

Compliance, also called durability of settlement, is also a feature of efficiency in dispute 

resolution. Wissler (2004) surveyed the empirical literature on durability of settlement in 

civil trial court mediation programs, and found that “eight studies assessed compliance 

with the mediated agreement, typically between one and six months after mediation, and 

found the rate of full compliance to be between 62 and 90 percent;” she also found that as 

compared to cases that went to trial, most studies “found a higher rate of full or partial 

compliance with mediated agreements than with trial decisions.”21

The key finding in much of the research on efficiency in time to settlement is that it is a 

function of dispute system design, more specifically, the precise structure of the program 

for case management. How deadlines are set and events scheduled has a significant 

impact on time to settlement. A key finding on compliance or durability is that, despite 

variations in dispute system design, mediation tends to improve compliance.

Efficiency of Settlement Part

At OSHRC, cases are first docketed by Office of the Executive Secretary (OEXSEC), 

when the agency receives notice that an employer or affected Employees have contested 

an OSHA citation. From there, the case is sent to the Chief Administrative Law Judge 

(CALJ), who in turn assigns the case to an administrative law judge in one of the three 

offices (Denver, Atlanta, or Washington, D.C.). Based on OSHRC’s past reports, the 

agency begins counting “cycle time” with the date of assignment to the judge. The end 

																																																												 16 Dana, supra note 10 at 368 (examining 1988–1990 pilot in superior court). 17 Id.

18 Id.

19 Robert J. MacCoun, Unintended Consequences of Court Arbitration: A Cautionary 

Tale from New Jersey, 14 JUST. SYS. J. 229 (1991); ROBERT J. MACCOUN ET AL.,

ALTERNATIVE ADJUDICATION: AN EVALUATION OF THE NEW JERSEY AUTOMOBILE 

ARBITRATION PROGRAM (1988).

20 Some have recommended mandatory mediation programs specifically to create a 

deadline effect to trigger settlements. See e.g., Christopher Fugarino, Mandating 

Mediation for Cases Before the U.S. Court of Appeals for Veterans Claims Can Improve 

the Efficiency of the Court and the Experience of the Parties, 16 FED. CIR. B.J. 379, 384

(2006/2007).

21 Roselle L. Wissler, The Effectiveness of Court-Connected Dispute Resolution in Civil 

Cases, Effectiveness, 22 CONFLICT RES. Q. 55, 60 (2004) (see studies cited).
34

date is marked by the date the parties reach a settlement agreement, or alternatively by 

the judge’s decision.

Cases proceed along two main tracks: Simplified or Conventional. Mandatory Settlement 

Program (MSP) is an alternative dispute resolution program within the Conventional 

Track. Simplified cases are identified in OSHRC’s database with the data field “EZ 

Trial.” If the case is not marked as “EZ Trial,” we assume it has been assigned to the 

Conventional track. By definition all cases not assigned to “Simplified” are considered 

“Conventional.” Cases assigned to Simplified and Conventional can settle one of two 

ways, that is, either with or without a without a hearing. 

As a preliminary step we look at cycle times for the various categories of cases from the 

OSHRC database. We exclude records with a docket date prior to the year 2000 and 

focus on records from 2000 to the most recent cases in the database, which are dated 

September, 2011. 

The average cycle times over 10 and one-half year period are as follows: 

• The average cycle time for cases assigned to Simplified and settled (no hearing) is 

85 days. 

• The average time for Simplified cases that required a hearing is 181 days. 

• The average cycle time for Conventional cases that settled is about 167 days 

(Most cases assigned to Mandatory Settlement are also in this group). 

• The average cycle time for Conventional cases with a hearing is 178 days. 

OSHRC over a decade: Descriptive Statistics

Changes in Presidential administrations are likely to change the environment for the 

Settlement Part Program, which in turn will impact the timely resolution of cases. 

Figures B-1 to B-6 present a series of descriptive statistics drawn from the various 

Microsoft Access database files supplied to us by OSHRC. At this point we are interested 

in general trends so we do not differentiate cases that are assigned to MSP and then fail to 

settle (about 5%), nor do we differentiate the small number of cases considered 

“voluntary settlements.” 

These illustrate changes in the environment for the Settlement Part program in 1) Cycle 

Times for All Cases and Programs; 2) New Cases Docketed; 3) Changes in Distribution 

of Case Types; 4) Average Penalties Per Case; 5) Citations Per OSHRC Case; and 6) 

Items Per OSHRC Case. 
35

A Spike in Cycle Times and Variability

Figure B-1 depicts cases over time according to how they were resolved. Cases are 

resolved in one of four ways: in Simplified, without a hearing; in Simplified with a 

hearing; in Conventional without a hearing; in Conventional with hearing. 

Referring to Figure B-1, resolution times are shortest for Simplified cases (yellow/green 

line) that settle and do not require a hearing. Cases on this track hit their shortest cycle 

times (about 74 days on average) around 2005 and hit their longest cycle times (about 

130 days on average) in 2009. Resolution times for Simplified/no hearing cases vary the 

least over time. However, there is a noticeable spike in resolution time starting in 2008 

and peaking in 2009, and then a decline in 2010 and 2011. 

Simplified cases that require a hearing (purple line) have always taken longer than their 

counterparts. Case resolution times were at their shortest (about 125 days on average) and 

at their longest (about 265 days on average) in 2009. There also appears to be an 

improvement in cycle times in most recent years. Resolution times for this group are the 

least predictable and most volatile. The increases and decreases in resolution times are 

more severe, and the upward trends starts about a year earlier compared to Simplified 

cases that settle.

Conventional cases are represented by two trend lines, one for those that settled (blue 

line) and one for those that did not settle (red line). Almost all cases assigned to MSP 

settle without a hearing so the majority of MSP cases are reflected in the blue line. The 

shortest resolution times (about 147 days on average) for this group appear in 2002 and 

the longest (about 224 days on average) are in 2009. There is a noticeable upward trend 

over the 2007- 2008 period and then a decline in resolution times and efficiency gains 

starting in 2009. The shortest resolution times (about 134 days on average) appear around 

2005 and the longest resolution times (around 299 days on average) appear in 2010. 

Unexpectedly, Conventional cases with a hearing took less time than those without a 

hearing between the years 2000 and 2008. From 2008 forward Conventional cases with a 

hearing appear to be resolved in less time than their counterparts. As with the cases in all 

three other categories there is a noticeable decrease in resolution times in 2010 and 2011, 

suggesting recent improvements in case handling or differences in case characteristics.
36

Figure B-1. Comparison of Cycle Times for All Cases and Programs: 2000 -2011

Increases in Judicial Caseload

Figure B-2 shows new cases docketed each year; it suggests that the spike in resolution 

times is likely due to increased caseload for the judges. The count of cases for this graph 

comes from the OSHRC database for years 2000 to 2010. To avoid using a half a year’s 

data for 2011 we substituted the case count from the database with the number of new 

cases reported in the agency’s 2011 Year-end Performance and Accountability Reports 

available on the agency website. 

From 2000 to 2003 the agency docketed between two thousand (2,000) and two thousand 

three hundred (2,300) cases per year. The number of new cases remained relatively 

consistent from 2005 to 2008 and through part of 2009. There was a significant increase 

in new cases around 2009 and the trend appears to be continuing. In the year 2010, over 

two thousand five hundred (2,500) new cases were docketed, and in 2011 over 3100 new 

cases were docketed. 
37

Figure B-2. Trend in New Cases Docketed: 2000 -2011

Changes in Case Types

Changes in the characteristics of cases docketed at OSHRC are also likely to affect 

resolution times. A comparison of the number of cases assigned to Simplified versus the 

number of cases assigned to Conventional in the years 2000 and 2010 shows an increase 

in the proportion of overall cases that are assigned to Simplified. Conventional cases 

were about 68% of the agency’s docket in 2000, but as of 2010 Conventional cases make 

up a little less than half (48%) of the docket. 
38

Figure B-3. Changes in Distribution of Case Types

Changes in Penalties, Citations, and Items

The Occupational Safety and Health Administration (OSHA) labels violations as 

“Serious,” “Willful”, “Repeat,” “Other” or “Unclassified.” There is a different penalty 

structure associated with different types of violations. Also, each citation can have 

multiple items. According to a recent US Department of Labor news release dated April 

22, 2010, the current maximum penalty for a serious violation, one causing death or 

serious physical harm is $7,000. The maximum penalty for a willful violation is $70,000. 

OSHA also maintains that monetary penalties for violations of the OSH Act have not 

increased since 1990, despite inflation. Under a recently announced policy change, the 

average penalty for a serious violation will increase from about $1,000 to an average of 

$3,000-$4,000 (OSHA 2010, Release 10-538-NAT). Notwithstanding, OSHA has shifted 

its focus on different types of violations and on different industries over the past several 

years. For example, OSHA reports a 15% increase in the total number of “serious” 

violations between 2005 and 2010 and a 217% increase in “willful” violations over the 

same period (OSHA 2010). These changes affect the total dollar amount of penalties 

contested as well as the complexity of the cases that come before OSHRC judges. 
39

Looking at the average penalties per case over time provides evidence of the changes in 

the characteristics of OSHA disputed cases resolved by OSHRC judges. The total 

penalties amount includes penalties for all cases, not just those in MSP. Judges assigned 

to Settlement Part cases also handle cases in Simplified so changes in case characteristics 

for cases assigned to Simplified are also likely to affect resolution times for MSP. The 

total penalties per case were at their lowest in 2002, averaging about $13,923.00, and at 

their highest in 2009, averaging about $58,520. In 2010, the average penalty amount for 

OSHRC cases declined to about $31,291.

The average citation count over the previous ten years is 1.4 and the average number of 

items associated with those citations is about 5. We consider the impact of marginal 

changes in citations and number of items contested more in the regression analysis 

reported in the next section. 

Figure B-4. Average Penalties Per Case: 2000-2010
40

Figure B-5. Citations Per OSHRC Case Over Time: 2000-2010

Figure B-6. Items Per OSHRC Case Over Time: 2000-2010

A few key findings surface from looking at trends:
41

• On average, over the last ten years, Conventional cases with a hearing and those 

without a hearing settle in about the same amount of time. The average life cycle 

for Conventional/ with a hearing cases is about 178 days, while the average for 

Conventional cases that settle (most of which are MSP cases) is about 167 days. 

• The life cycle for MSP cases was the longest in 2009, about 224 days on average. 

The increase was likely due to a significant increase in caseload; the number of 

new cases docketed increased from about 2,000 cases in 2005 to over 3,000 cases 

in 2009. 

• The number of items and citations per case varies year to year, yet there does not 

appear to be a clear pattern. 

• The average penalty amount was at its highest in 2009, over $58,500 which is 

more than double from 2008, when the average was around $21,500. The increase 

is due in part to a couple of very large complex cases on the docket in 2009. 

We turn to multivariate analyses to understand the causes of variations in cycle time. 

Regression Analysis to Identify Factors Associated with Longer Cycle Times 

Multivariate analyses such as ordinary least squares regression (OLS) is a valuable tool 

for understanding causality. One of the advantages of OLS is that it allows researchers to 

test the effects of different factors (predictor variables) on an outcome of interest while 

holding other factors constant. By including control variables in regression equations, 

researcher can determine whether the effects persist when other relevant information is 

taken into account. Our regression analyses are informed by the literature on dispute 

resolution and by our interviews with internal stakeholders as well as by factors 

uncovered in looking at trends in cycle time over the past decade. For example, we add 

predictors and controls in our regression model to account for: penalties associated with 

each case; numbers of items and citations associated with each case; and citation types. 

By adding controls for each year, we can also pick up on some trends we do not yet fully 

understand. 

For example, we observe changes over time in the proportion of cases assigned to 

Simplified and Conventional. This tells us that there are unobserved differences among 

cases affecting their assignment that may not be measured with other variables. Adding 

year variables to the model helps to account for the “unobserved heterogeneity” 

associated with these cases that may be impacting cycle times. We also know from our 

internal stakeholder interviews that judges apply different settlement techniques in 

resolving cases in Settlement Part and that some DOL solicitors may be less inclined to 

settle cases than others. Our regression analysis takes into account all of these factors. 

The purpose of this section is to identify factors that cause or drive cycle time. We can 

use regression analyses to answer specific research questions about the efficiency of 

Mandatory Settlement Part procedures:
42

• How did changes in the criteria for assigning cases to Settlement Part affect cycle 

times? 

• What is the impact of the factors we have identified so far on cycle time, and does 

the impact persist when we control for case characteristics and other features of 

OSHRC programs? 

How did changes in the criteria for assigning cases to Settlement Part affect cycle times? 

Before May 2005 cases with proposed penalties totaling $200,000 or more were 

considered eligible for MSP. The rule change in May 2005 lowered the threshold to 

$100,000. We use the rule change in May 2005 as the foundation for a quasiexperimental research design. The rule change is an exogenous that affected some but not 

all groups. In the language of experimental research, the group affected by the change (or 

stimulus) is the treatment group. The group not affected by the change is referred to as 

the control group. In the present research our treatment group includes cases over 

$100,000 but less than $200,000. Our control group includes cases not affected by the 

policy change. Cases over $200,000 were not affected as they already qualified for MSP. 

Cases with penalties over $30,000 but less than $100,000 were also not affected; these 

cases are higher than the threshold for Simplified proceedings but not high enough for 

MSP. Using a sample of cases both before and after the policy change we are able to test 

the effect of the policy change in May 2005 on cycle time, while controlling for 

differences in case characteristics, region, industry, and judges’ handling of cases.

Our sample of Settlement Part cases is selected from the OSHRC database. Our sample 

frame includes cases docketed between the years 2000 and 2010 that also settled without 

a hearing. The sample frame provides information appropriate for describing the elements 

composing the sample frame, i.e. cases that successfully settled, not those that did not 

settle and were reassigned for hearings.

We selected 1245 cases for analysis based on a stratified random selection method. Our 

final sample size for analysis is 1245 cases; 612 cases before the policy change and 630 

cases after the policy change. The cycle time average is 186.7 days for cases in our 

sample. Yet, the data also show much dispersion around the mean. There is subset of 

outlier cases that take more than 3 years to resolve. There are also many cases that take 

less than 60 days to resolve that do not show any activity associated with Mandatory 

Settlement Part; these cases appear to resolve on their own. Both subsets somewhat 

distort the average for typical cases. 

Table B-1 shows four different ordinary least squares (OLS) regression models. 

The dependent variable, our outcome of interest, is the same across all four models- the 

total number of days (cycle time). The independent variables for the models appear in the 

left hand column in the table. These are our predictor variables 
43

Table B-1. Regression Analysis Using Cycle Time as Dependent Variable

RESULTS OF OLS REGRESSION

VARIABLES (1) (2) (3) (4)

Dependent variable: LOG(CYCLE TIME)

Casesaffected 0.0827 0.0710 0.117 0.0436

(0.0651) (0.0663) (0.0642) (0.0486)

Afterpolicy 0.0740* 0.0725* 0.00256* 0.0085*

(0.0391) (0.0388) (0.0420) (0. 0387)

casesXpol -0.0489 -0.0309 -0.0814 -0.0393

(0.0895) (0.0889) (0.0887) (0.0658)

Logpenalties 0.1871** 0.2983**

(.00007) (.0008)

Anyrepeat 0.146*** 0.147***

(0.0533) (0.0562)

Anywillful 0.108** 0.082**

(0.0485) (0.0462)

Numbitemscontested 0.00268* 0.00176

(0.00148) (0.00110)

Numbcitations 0.0459 0.0370

(0.0324) (0.0240)

Numbevents 0.0308***

(0.00139)

Pleadsusp 0.355***

(0.0506)

conferover30 0.515***

(0.0529)

Yearcontrols significant significant

Judgecontrols significant significant

DOLregioncontrols significant significant

Constant 4.945*** 4.938*** 5.585*** 4.395***

(0.0274) (0.0533) (0.649) (0.485)

Observations 1,231 1,201 920 722

R-squared 0.004 0.124 0.290 0.510

Standard errors in parentheses *** p<0.01, ** p<0.05, * p<0.1
44

Interpretation of Results

We transformed the dependent variable (cycle time) into its logarithm form 

(log_cycletime), which is standard practice to achieve a normal distribution for this type 

of dependent variable. Because the dependent variable is in logarithm form we interpret 

the coefficients associated with each independent variable as a percentage change that 

variable has on cycle time. The higher the coefficient on the independent variable, the 

more substantive effect associated with the predictor. A positive coefficient means the 

association between the predictor and the outcome is positive; as one increases so does 

the other. A negative coefficient means that as the level of the predictor increases, the 

outcome decreases. The level of statistical significance associated with each predictor is 

also important. In the results table statistical significance of each predictor is given by the 

standard errors that appear in parentheses below the coefficient. A significance level of 

.05 is associated with a confidence level of 95%, which means there is about a 5 percent 

probability that our results are due to chance. We focus only on coefficients that have a 

significance of .10 or better. 

The names for each independent variable (predictors) are listed in the left-most column of 

the table and their coefficients appear in each row. The coefficients tell us whether the 

variable has any substantive effect on the outcome and also whether there is sufficient 

evidence that are results is not due to chance. The variable casesaffected is a dummy 

variable coded 1 for all cases in the treatment group. The variable afterpolicy is a dummy 

variable coded 1 if the case was assigned to a settlement judge after the policy change, 

May 5, 2005. The variable afterpolicy is the key variable for determining the effect of the 

policy change on cycle time. This variable is an interaction created by multiplying the 

values on the variables casesaffected and afterpolicy. The result is a value of 1 if cases 

are both in the treatment group and also assigned to the settlement judge after the policy 

change.

The coefficient on afterpolicy is the key result for determining whether the policy change 

by itself increased or decreased the average cycle time for cases. In the results table we 

see that the coefficient is neither substantively nor statistically significant, implying no 

effect on cycle time. Note that in this model we do not consider the effect of case 

characteristics or other factors that may be driving changes in cycle time. The R2 at the 

bottom of the column is small (R2 =.004). A small R2 suggests there are many other 

factors that may be explaining variations in cycle time that are not accounted for in the 

equation.

In Model 2 (second column in the table) we focus on the effect of penalty amounts and 

OSHA violation types on cycle times. The variable logpenalties is the total amount of 

contested penalties in logarithm form. Since both the dependent variable and independent 

variable are logged, we interpret the effect as a proportion. A proportional change in the 

dependent variable is associated with a proportional change in the independent variable. 

In the results table we see that a one percent increase in penalties contested is estimated 

to result in a .1871 percent increase in cycle time. 
45

The variable anyrepeat is coded 1 if the case has any violations characterized as “repeat” 

by OSHA. The coefficient indicates that repeat violations increase cycle time by about 

14.6 percent, on average, and holding other factors constant. Putting this in perspective, 

the average cycle time increases about 27 days (from 186.7 to 214 days). The variable 

anywillful is coded 1 if the case has any violations characterized as “willful” by OSHA. 

“Willful” violations increase cycle time by about 10.8 percent or 19 days. Each additional 

item contested is associated with a modest .2 percent increase in cycle time. Note that the 

R2 increases to .124 in Model 2, suggesting that adding case characteristics slightly 

improves the fit of the model. 

Variations by Years, Judge Practices, and Department of Labor Regions

In Model 3 (column 3) we focus on effects associated with different years, judges, and 

Department of Labor regions. By adding dummy variables for each year we tap into 

unobserved effects associated with years, such as changes in judge case load, how cases 

are processed, other rule changes, and changes in OSHA policies. According to the yearly 

reports OSHA changes in policy are likely to affect the number and types of cases that 

are contested and adjudicated by OSHRC judges. By extension, OSHA policy changes 

may also affect OSHRC case cycle times. Adding controls for individual years at least 

partially taps into this effect. 

Cycle Times Vary with Individual Judges’ Practices

In Model 3 we also control for the twenty different judge codes that appear in the sample. 

Results for individual effects associated with judges are not presented in the table. 

However, the values on these coefficients range from -0.12 to +0.21 for judges, 

suggesting that individual practices decrease cycle time by as much as 12 percent or 

increase cycle time by up to 21%, all else equal. 

We are not surprised at this result given that individual judges use different techniques in 

their attempts to settle cases. Some judges promote settlement through mediation 

techniques such as role playing and expanding the pie. Others stated in interviews that 

they were uncomfortable with the mandatory settlement process and declined to engage 

in shuttle diplomacy.

These variations in the judges’ practices are evident from the data. For example, the data 

suggest significant differences across judges for the completion of pleadings. Some 

judges require parties to file complaints and answers on time and are unlikely to grant 

extensions. Other judges liberally grant extensions. The records also suggest that some 

judges suspend pleading requirements, which we assume occurs if the parties are 

negotiating settlement in earnest. We also see patterns and differences in the timing for 

settlement conferences. In some cases the settlement conference is scheduled within a 

day or two of case assignment. Yet we also see conferences scheduled as far out as ninety 

days from the date of assignment. The practice of scheduling a settlement conference 

appears to vary significantly by judge. As another example, both the timing (using the 
46

assignment date as a baseline) and the extent of discovery (using the event file and 

counting discovery-related events) vary considerably by judge. 

Department of Labor Regions Vary

Model 3 also tests for differences in effects associated with DOL regions. There are 

eleven DOL regions in our sample. Since DOL solicitors are assigned to DOL regions, 

this set of dummy variables picks up on unobserved heterogeneity associated with 

regional DOL policies. The variables are also likely to tap into some of the variance in 

solicitors’ practices and solicitors’ willingness to settle. Coefficients for individual 

regions range from -0.02 and +0.12, indicating cycle time decreases by eight percent or 

increases up to 12 percent depending on the DOL. The individual coefficient for DOL 

region 3 is associated with the twelve percent increase in cycle time. 

Policy Change, Penalties, Penalty Types, Numbers and Types Citations

Model 4 includes the main variables of interest (the policy change, penalties, types of 

penalties, numbers and types of citations) and the controls for years, judges, and DOL 

regions controls from the previous equation. In model 4 we also consider the effects of 

associated with specific cases practices. Results indicate statistically significant effects 

for coefficients on the variables logpenalties, anywillful, and anyrepeat. A one percent 

increase in total penalties contested is estimated to result in a .298 percent increase in 

cycle time. Repeat violations increase cycle time by about 15 percent, while willful 

violations increase cycle time by about 11 percent, all else equal. 

We also consider the effects of three different practices for which we find variation in the 

data. OSHRC’s previous database is event driven. After merging the events file (over 

628,000 records) with the file holding the main information for each case (about 39,000 

records) we observed a wide range in the number of events associated cases. There are 

approximately 500 types of events in the database that can be recorded for cases but only 

about 45 event types appear to be used as frequent case notations. These notations record 

assignment dates, motions, orders, the filing of pleadings, stays, remands, and other 

events associated with cases. The average number of events per case is 17 for 

observations in our sample, but the range of events goes from 1 to 235. As expected, 

more events per case are associated with longer cycle times. However, the magnitude of 

the effect is smaller than expected. Each event is associated with an increase in cycle time 

of about 3 percent. 

Using the events records we also coded a variable to indicate whether suspended 

pleadings prolonged case settlement. Pleadsusp is coded 1 if the complaint or response 

was suspended or delayed. Cases were coded 1 if the pleading was either suspended by 

motion or order, or if the pleading was more than 30 days past the due date according to 

the commission rules. The effects are substantively and statistically significant. Delays in 

pleadings increase cycle time by about 35 percent. 
47

Finally, we consider the effect of conference call scheduling. According to the judges we 

interviewed, the initial conference call is an important milestone for cases in MSP. The 

variable conferover30 is coded 1 if the initial settlement conference call is more than 30 

days after the case is assigned to the settlement judge. When conference calls are more 

than 30 days out, the cycle time increases by about 51 percent, all else equal. Comparing 

the R2 at the bottom of the model we see that the more fully specified model noticeably 

improves the fit. The R2 of .51 is high by most research standards and suggests the model 

predicts about 51 percent of the variation in the dependent variable. 

Summary of Findings

We summarize the key findings from this analysis below:

• Average cycle time is one of the agency’s performance indicators. The 

approximate average cycle time for cases assigned to Mandatory Settlement Part 

is approximately 187 days. Yet, the data also show much dispersion around the 

mean. There is subset of outlier cases that take more than 3 years to resolve. 

These cases distort the average for typical cases. We believe the agency can 

significantly improve mean cycle time for MSP cases by flagging cases at some 

interval, for example at 180 days out, to reevaluate their potential for settling 

these cases. 

• The actual percent of cases that resolve on their own versus those that those that 

settle because of MSP procedures is difficult to decipher from the data. The data 

show a subset of cases assigned to MSP that resolve within 60 days without MSP 

related activity. The agency may want to “count” this subset of cases differently 

from the more typical cases addressed in MSP.

• The 2005 policy change lowering the threshold for MSP case eligibility from 

$200,000 to $100,000 did not by itself reduce or increase the average amount of 

time it takes to resolve cases. Instead, the entire system was affected by changes 

outside of OSHRC’s control, specifically, increases in ALJ caseloads and the 

increases in case complexity reflected after 2005 reported in the previous section. 

• A one percent increase in the total amount of penalties contested is estimated to 

increase the time it takes to resolve cases between .19 percent and .30 percent (see 

models 2 and 4). The coefficients equate to increases of less than one percent, implying 

marginal increases in total penalties add less than a full day to the life of a case. 

• Violations considered “repeat” add about 15 percent to case resolution times (see 

models 2 and 4).

• Violations considered “willful” add between 8 percent and 11 percent to case 

resolution times (see models 2 and 4). 
48

• Regression results suggest that the types of violations are more important than 

penalty amounts in estimating the time it takes to resolve cases. 

• The number of items and citations associated with a case do not meaningfully 

impact case resolution times.

• Case management activities have various effects on the time it takes to resolve 

cases. More case activity in the form of scheduling events, motions, and orders 

have a limited effect, adding only about 3 percent to the average time it takes to 

resolve cases. However, when pleadings are suspended, the time to resolve a case 

increases by about percent. Similarly, when the initial settlement conference call 

is delayed more than 30 days, the life of a case extends by as much as 52 percent.

• The management of a case, including the time at which a judge schedules 

conferences and other matters, is as important to reducing cycle times as other 

factors. The agency may wish to flag cases that do not reach certain milestones, 

including the deadlines specified in the Rules of Procedure. It may be useful to 

differentiate case processing delays from judge-granted extensions and stays to 

isolate the reason for longer than expected cycle times. It may be useful to count 

case cycle time with multiple metrics, not just from the date of assignment to the 

settlement judge. For example, a count from the date a case arrives at OSHRC 

and is docketed would isolate cases backlogged in the earliest period, while a 

count of days in discovery would help in determining both the efficiency and 

efficacy of discovery procedures. 

• Some administrative law judges are more effective than others in achieving 

quicker resolutions. Specific practices appear to expedite cases by as much as 12 

percent or add as much as 21 percent to the life of a case. This finding suggests 

that improvements in average cycle times are possible if judges are encouraged to 

share best practices.

• Cycle times vary substantively and significantly by DOL region. We believe these 

differences may be attributable to differences in industry, at least in part. 

(Different industries have a higher presence in some areas of the country). The 

agency might consider whether it is feasible for some judges to “specialize” in 

facilitating resolution of cases involving certain industries, and whether to assign 

cases to judges based on their knowledge of relevant industry practices. 
49

What factors predict cases that will fail to settle in Settlement Part?

How can we enhance the efficiency of Settlement Part? One way is to improve the 

selection and referral of appropriate cases. The present system refers all cases based on a 

monetary jurisdictional threshold tied to the dollar amount of penalties, originally 

$200,000 and then in 2005 reduced to $100,000, increasing the number of cases eligible 

for Settlement Part. However, there may be measurable case characteristics that help us 

predict whether a given case has a higher probability of settling or failing to settle in 

Settlement Part. To investigate this question, we conducted a second multivariate analysis 

reflected in Table B-2 below, the dependent variable for which is the event failure to 

settle while assigned to MSP. A probit analysis is appropriate when trying to predict a 

binary outcomes.

Table B-2 Dependent Variable Failure to Settle in MSP

(1) (2)

EQUATION VARIABLES nosettle nosettle

penalties 0.000744

(0.0008)

anywillful 1.196*** 1.073***

(0.441) (0.381)

anyrepeat 0.0641 0.0878

(0.356) (0.359)

accident 0.446* 0.557

(0.325) (0.353)

referral 0.326 0.213

(0.390) (0.427)

complaint 1.625*** 1.612***

(0.377) (0.353)

union 0.601* 0.700**

(0.342) (0.350)

delays 0.679** 0.742**

(0.343) (0.344)

Constant -0.989** -0.884*

(0.456) (0.476)

Observations 89 84

Standard errors in parentheses

*** p<0.01, ** p<0.05, * p<0.1
50

Data for Analysis 

We derive the data for analysis from two sources, the OSHRC database and OSHA 

citation records. We also consulted with OSHRC personnel and checked the data against 

various reports and records they supplied. The observations in the model include cases 

that were assigned to MSP between the years 2000 and 2011 that failed to settle while in 

MSP. There are 89 observations in model 1 and 84 in model 2. The number of 

observations includes cases in the data set for which all of the response and predictor 

variables are not missing.

Outcome Variable

The outcome/dependent variable, nosettle, for both models is a binary variable valued as 

one if the case qualified for MSP, was assigned to a settlement judge but after a period of 

time was reassigned to a different judge for trial. We consider these cases to reflect a 

group not successful using settlement part procedures. Cases that qualified for MSP, 

assigned to an SP judge and settled using MSP procedures are coded as zero. 

Predictors

The first model includes predictors for types of violations contested and the motivation 

for the underlying inspection at OSHA. In this first model we are also interested in the 

possible effects of union involvement and delays on case proceedings while the case is 

assigned to MSP. A second model adds one additional predictor, penalty amounts. 

We use the violation types associated with each case that are contained in the OSHRC 

records. We code specifically for cases that include willful and repeat citations. The value 

for each of these variables is set at one, if so indicated in the record, and zero otherwise. 

The value for penalties is the total dollar amount of penalties contested. We use the 

amount found in OSHRC’s citations file to code this variable. 

By matching docket numbers and inspection numbers from separate OSHRC files we 

were able to pull records from OSHA associated with each contested case. Using OSHA 

inspection numbers, we coded three variables from OSHA records: accident, referral, 

and complaint. These variables reflect the different reasons for the underlying OSHA 

workplace inspection. OSHA inspections arise as a matter of routine, sometimes 

announced and sometimes unannounced. However, inspections are also motivated by 

reports of a workplace accident, by referrals of another agency, and based on complaints 

filed by different parties. Our models tests whether the reason for the underlying 

inspection affects the probability of SP failure. The variables accident, referral, and 

complaint are each valued at one, if so indicated in the OSHA inspection record, and zero 

otherwise. OSHA inspection records also include information on whether the business 

inspected is unionized. 

We include the variable union in our analysis to see its impact on MSP program 
51

outcomes. Union is valued at one if the business inspected is unionized, and zero 

otherwise. We also include one predictor that taps into case management procedures. The 

variable delays is valued at one if any of the following conditions were met: pleadings 

were suspended, there is a continuance associated with the case, there is an order granting 

an extension of time for filing. We coded this variable from OSHRC’s events file. The 

validity of the predictor was further checked against case cycle times; correlations 

between higher cycle time (calculated the date associated with final resolution of the case 

- assignment date) and the values associated with delays provided evidence of convergent 

validity. 

Interpretations

Models 1 and 2 (columns 1 and 2) in the table show results of a probit regression 

analysis. A probit analysis predicts the likelihood that a case fails to settle after having 

been assigned to the Settlement Part Program. Results are generally consistent in both 

models, we rely on the second, more inclusive model (column 2) for interpretations.

Interpretation of the coefficients in a regression is not as straightforward as the 

interpretation of coefficients in ordinary lest squares (OLS). An increase in the 

probability attributed to a one unit increase in a given predictor is dependent both on the 

value of the other predictors and the starting value of the given predictors. For example if 

we hold anyrepeat and anywillful constant at zero, a one unit increase in penalties from 

one dollar to two dollars has a different effect than a one unit increase from three dollars 

to four dollars. Note that the probabilities do not change by a common factor. Also, the 

effects of a one unit increase in a predictor is different if we hold other predictors at their 

respective means than if we hold them at zero.

In general, all of the coefficients are positive, implying a positive association between 

each predictor and the outcome variable. That is, the presence of any of these factors 

increases the probability that a case will not settle in MSP. We focus our interpretations 

on coefficients that are statistically significant at least the .05 level. The standard errors 

associated with the test of statistical significance, appear in parentheses below individual 

regression coefficients. 

Four variables stand out as having statistically significant effects: anywillful, complaints, 

union, and delays. The coefficient for anywillful is 1.073; the coefficient for complaints is 

1.625; the coefficient for union is .601; the coefficient for delays is .679 . The presence of 

any of these factors individually increases the predicted probability that MSP procedures 

will not be effective and the case will be reassigned for trial. 

By running additional tests we can predict the mean predicted probability of MSP failure 

under specific conditions. For each condition in the Table B-3 below, the other predictors 

are held at their means. 
52

Table B-3. Probabilities That Settlement and Failure to Settle in MSP

Condition

Probability of Settling 

while in MSP

(Nosettle=0)

Probability of Failing to 

Settle while in MSP

(Nosettle=1)

Willful Violation 28% 69%

Accident 24% 75%

Complaint 11% 88%

Union 26% 73%

Delays 26% 76%

Summary and Findings

In drawing conclusions about factors that lead to settlement failures, it is important to 

keep in mind that failing to settle a case while in MSP is not the same as failing to settle 

altogether. Some cases enter Mandatory Settlement Part but fail to settle while assigned 

to MSP. These cases are reassigned to a trial judge and may eventually settle; however, 

they do not settle while in MSP, or apparently by using alternative dispute resolution 

techniques currently associated with MSP. 

The key findings and recommendations that stem from this analysis are as follows:

• The most important case characteristic associated with settlement failure is the 

type of violation. Specifically, cases that have willful violations increase the 

probability of settlement failure by sixty-nine percent.

• Cases that involve workplace accidents increase the probability of settlement 

failure by 75 percent. 

• Repeat violations do not appear to significantly affect the probability of 

settlement failure while in MSP. 

• When the OSHA violation involves a unionized business, the probability of 

settlement failure increases about seventy-three percent. Unionized businesses are 

much more likely to be cited in the first place, likely because they are larger 

businesses, so we cannot conclude from this result that union involvement as a 

party in the case actually increases the probability of settlement failure.

• Case management practices can increase the probability of settlement failure, and 

importantly settlement success. When cases are delayed as a result of suspended 

pleadings and orders granting extensions, the probability of settlement failure 

increases by about 76%. 

It is of course likely that these factors are both interrelated and cumulative. This suggests 

that cases entailing willful violations, workplace accidents, large, unionized employers, 

and issues that require suspended pleadings or extensions may be more appropriate for 
53

Conventional than Settlement Part proceedings. Mandatory Settlement Part is a program 

that is part of a larger dispute system design at the agency. It is possible that improving 

selection of appropriate cases for MSP will improve the efficiency of the system as a 

whole.

Predicting Future Compliance

There may be additional advantages associated with Mandatory Settlement Part. In this 

section we describe additional analysis that we conducted to determine whether MSP 

cases have fewer subsequent OSHA citations compared to Conventional cases.

Research question: Does MSP facilitate future compliance?

Data for Analysis

We use the universe of cases associated with the surveys as our starting point. The 

sample includes 144 cases that settled in MSP since February 2011 and 134 cases that 

resolved in Conventional proceedings since February 2011. We used records from 

OSHRC database to obtain docket numbers, OSHA inspection numbers, and penalty 

information associated with each case. We used OSHA records to retrieve information on 

the numbers and types of subsequent violations. The resulting number of observations 

includes cases in the dataset for which all of the response and predictor variables are not 

missing.

Outcome Variables

We use five different binary measures of subsequent violations: subsequent violations of 

any type; subsequent violations of the same type (matching to most recent types at 

OSHRC); subsequent willful violations; subsequent serious violations; and, subsequent 

repeat violations. Each outcomes variable is valued at one for the presence of any 

relevant violation, zero otherwise. To be clear, if a case has several subsequent violations 

the value is still one. We code this variable from OSHA inspection records.

The variable any_subseq_viol is valued at one if the business associated with the OSHRC 

case was cited for any OSHA violation subsequent to having entered MSP or 

Conventional, and zero otherwise. 

The variable any_similar subseq is valued at one if the business associated with the 

OSHRC case was cited for any OSHA violation subsequent to having entered MSP or 

Conventional, and zero otherwise. 

The variable any_subseq_willful is valued at one if the business associated with the 

OSHRC case was cited for any OSHA violation subsequent to having entered MSP or 

Conventional, and zero otherwise. 

The variable any_subseq_serious is valued at one if the business associated with the 
54

OSHRC case was cited for any OSHA violation subsequent to having entered MSP or 

Conventional, and zero otherwise. 

The variable any_subseq_repeat is valued at one if the business associated with the 

OSHRC case was cited for any OSHA violation subsequent to having entered MSP or 

Conventional, and zero otherwise. 

Predictors

We include a variable to indicate whether the case was assigned to Mandatory Settlement 

or to Conventional. The value for the variable assignedMSP is one if the case was 

assigned to Mandatory Settlement Part and zero if it was assigned to Conventional 

Proceedings. 

The value for penalties is the total dollar amount of penalties contested. We use the 

amount found in OSHRC’s citations file to code this variable. 

We include the variable union in our analysis to as a control, more than a predictor. It is 

also a rough indicator for business size; large businesses are more likely to be unionized. 

We code this variable from OSHA records. Union is valued at one if the business 

inspected is unionized, and zero otherwise. 

The variable anywillful is valued at one for cases that include any contested violations 

categorized by OSHA as willful, zero otherwise. The variable anyrepeat is valued at one 

for cases that include any repeat violations, zero otherwise. 

To the extent we were able to match OSHRC docket numbers with OSHA inspection 

numbers from separate OSHRC files we were also able to pull records from OSHA 

associated with each contested case. Using OSHA inspection numbers, we coded three 

variables from OSHA records: accident, referral, and complaint. These variables reflect 

the different reasons for the underlying OSHA workplace inspection. Our models tests 

whether the reason for the underlying inspection affects the probability of SP failure. The 

variables accident, referral, and complaint are each valued at one, if so indicated in the 

OSHA inspection record, and zero otherwise. OSHA inspection records also include 

information on whether the business inspected is unionized. 

Interpretations

We want to know if MSP or other factors affect future compliance with OSHA workplace 

safety rules. To be sure, cases assigned to MSP and Conventional cases not assigned to 

MSP can both resolve by mutual agreement of the parties. However, there are meaningful 

differences in procedure for the two tracks. Perhaps most importantly, in MSP the rules 

call for early intervention by the settlement judge. In addition, MSP cases are also more 

likely to resolve with the assistance of the judge, rather than by the parties alone. Thus, 

interpretations go more to the efficacy of MSP and the role/ importance of OSHRC’s 

administrative law judge in facilitating compliance than they do about the effect of 
55

settlement on future compliance. 

We use probit analyses to predict the likelihood that subsequent OSHA violations occur 

after OSHRC proceedings. We present the main results in tables B-4 through B-6.

Table B4 includes result of five different equations (models 1 through 5 -columns also 

labeled 1-5). Models 1-5 are parsimonious, including only three predictors: the 

designation of the case (MSP or conventional), total penalty amounts and union presence. 

Table B-4: RESULTS OF PROBIT PREDICTING FUTURE COMPLIANCE

VARIABLES (1) (2) (3) (4) (5)

Any subseq

viol

Any similar

subseq

Any subseq 

willful

Any subseq

serious

Any subseq

repeat

assignedMSP 0.636** 0.536* -8.51e-07 0.273 0.288

(0.283) (0.299) (6.96e-07) (0.303) (0.344)

penalties -1.24e-06* -1.13e-06 0.312 -9.23e07 -8.27e-07

(6.92e-07) (7.10e-07) (0.626) (6.92e-07) (6.49-07)

union 0.477* 0.167 -1.953*** 0.00273 0.00532

(0.260) (0.277) (0.396) (0.00293) (0.00341)

Constant -1.020*** -1.147*** -1.127*** -1.085*** -1.088**

(0.275) (0.294) (0.234) (0.288) (0.233)

Observations 116 116 98 116 111

Wald chi2(3) 9.29 4.95 1.99 2.22 1,78

Prob > chi2 .025 .17 .37 .52 .61

Robust standard errors in parentheses

*** p<0.01, ** p<0.05, * p<0.1

Interpretations

Focusing on Table B-4, model 1 in column 1, we see there is a positive association 

between assignment to MSP and the likelihood of seeing at least one subsequent violation

of any type that is statistically significant (P<.05). There is a negative association 

between the total amount of contested penalties and the likelihood of seeing a subsequent 

violation that is statistically significant (P< .10). There is a positive association between 

the presence of a union and the likelihood of seeing a subsequent violation that is 

statistically significant (P<.10). The standard errors associated with the test of statistical 

significance, which give us confidence that these results are not due to chance appear in 

parentheses below individual regression coefficients. 
56

On the surface, it does not appear that MSP has a positive impact on future compliance. 

However, as discussed more thoroughly in the previous section, interpretation of the 

coefficients in a binary, non-linear model are not straightforward. The probabilities do 

not change by a common factor and the effects of a one unit increase in a predictor is 

different if we hold other predictors at their respective means than if we hold them at 

zero. To understand the effects more specifically, we look to calculated predicted 

probabilities for the outcome variable under specific conditions. 

Table B-5. Probabilities of Subsequent OSHA Citations

Condition Probability of no 

subsequent violations

Probability of

any subsequent 

violations

Cases not assigned to 

MSP 

(assignmentMSP=0) 

17% 68%

Cases assigned to MSP 

(assignmentMSP=1) 37% 64%

* Other variables are held at their means for all predictions.

The table of predicted probabilities suggests there actually is a marginal, yet positive 

effect of MSP on future compliance. More specifically, the probability that a party to an 

OSHRC proceeding will not be cited for any type of future OSHA violation (within a 

year from the time a case is assigned to an OSHRC judge) is about 20% more (from .17 

to .37) for cases assigned to MSP compared to Conventional cases. The difference 

between the groups is not as stark for probabilities associated with actually being cited 

for any subsequent violation. Holding other variables there is a 68% and 64% probability 

for conventional and MSP, respectively. 

We also examined the effect of penalties on future compliance related to cases in 

Mandatory Settlement Part. As the sign of the coefficient in the preceding table suggests 

(Table B-4, column 1), the relationship between penalties and future citations is negative, 

suggesting that penalties may in fact be a deterrent to future violations. Larger penalty 

amounts are associated with lower probability of future citations. 

In addition we can see from the table below (B-6) that there appears to be the highest 

impact on deterrence when penalty amounts are highest and cases are assigned to MSP. 

The predictions in B-6 reflect cases below $100,000 that are also assigned to MSP. These 

cases have willful and/or repeat violations and are thus assigned to MSP even though 

they are below the threshold of $100,000. 
57

Table B-6: The Effect of Penalty Amounts on the Probability of

Subsequent OSHA Citations in Mandatory Settlement Part

Total Contested 

Penalties

Probability of no 

subsequent violations

Probability of

any subsequent 

violations

$10,000 58% 41%

$25,000 61% 38%

$50,000 61% 39%

$75,000 62% 38%

$99,999 69% 37%

* * Other variables held at their means

**Cases above $99,999 are all assigned to MSP. Cases below $100,000 

can be assigned to MSP by virtue of violations types
58

Additional Models

Focusing our attention on Table B-7, column1, we see that comparable results are 

obtained when we add predictors to our equations.

Table B-7 Additional Probit Results Predicting Future Compliance 

(6) (7)

VARIABLES Any subseq

viol

Any similar 

subseq

assignedMSP 0.471 0.486

(0.309) (0.321)

penalties -1.71e-06** -8.35e-07

(8.26e-07) (8.14e-07)

union 0.441 0.175

(0.268) (0.283)

referral 0.167 0.123

(0.402) (0.410)

accident 0.550 -0.459

(0.546) (0.649)

complaint 0.819* 0.418

(0.463) (0.488)

Constant -0.988*** -1.158***

(0.277) (0.299)

Observations 116 116

Wald chi2(6) 14.79 5.03

Prob > chi2 .02 .53

 Robust standard errors in parentheses

 *** p<0.01, ** p<0.05, * p<0.1

Although the significance of the variable assignmentMSP in table B-7 is no longer 

statistically significant at .05 level, overall effects are fairly consistent with those we 

found in the more parsimonious models. In Table B-7, column 1 we see that the variable 

penalties continues to be a statistically significant predictor, although not substantively

meaningful. We also see that one additional predictor, complaint, takes on statistical 

significance at the .10 level. The sign on the coefficient is negative. Thus, if the OSHA 

inspection associated with the case was initiated because of a complaint by another party, 

the business is less likely to be cited for subsequent violations. 
59

Summary and Findings

The key findings and recommendations that stem from this analysis are as follows:

• Assignment to Mandatory Settlement Part appears to have a small yet positive 

effect on future compliance. Comparing MSP cases to Conventional cases, parties 

from MSP cases are about 20 percent less likely to receive subsequent violations 

of any type.

• Penalties are a deterrent. Larger penalty amounts are associated with a lower 

probability of future citations. In addition assignment to MSP has the highest 

impact when penalty amounts are highest and cases. For cases near the $100,000 

threshold that are also assigned to MSP, there is about a 69% probability that the 

case settled will not receive OSHA subsequent violations. 

• Businesses are less likely to be cited for subsequent violations if the OSHA 

inspection associated with the case was initiated because of a complaint by 

another party. This finding suggests that the complaining party may have an 

important role in the success of OSHRC cases. 
60

Appendix B-1: Technical Appendix- Ordinary Least Squares Regression Analysis

Case Selection

The records that OSHRC provided us included 6,733 cases before the policy change and 

5,300 after the policy change. Because we want to describe most typical cases, we 

removed cases with cycle times less than 30 days and more than 365 days. We then 

merged records of case events to determine which of these cases were associated with 

hearings. Excluding cases with (verifiable) hearings we narrowed the case count to 4,542 

cases before the policy change and 5,220 after the policy change. The total number of 

cases eligible for selection was further limited by some inconsistencies in the data and 

also by missing data. 

Our aim was to select approximately 1000 cases from the cases eligible for selection. We 

determined the sample size based on two main considerations. The sample size had to be 

large enough to achieve statistical significance but small enough to check cases for data 

errors. We also wanted to ensure a sufficient sample of subgroups from each year and 

region. We divided the cases in the database according to two strata (year and OSHRC 

region) and then randomly chose cases before and after May 2005 (the date of the policy 

change). The stratified-random selection method ensures a sufficient sample of relevant 

subgroups while guarding against an unrepresentative sample.

Our final sample size for analysis is 1,245 cases; 612 cases before the policy change and 

630 cases after the policy change.

Transformation of Dependent Variable

The dependent variable cycle time was transformed into logarithm form to achieve a 

normal distribution. The graphs below show the distribution before and after the log 

transformation. 
61

. 
62

OLS Regression Equation 

The estimate equation for the OLS equations, with standard errors in parentheses, is

ˆ log(cycletime)= 4.945 + .0827 casesaffected + .074 afterpolicy - .0489 

casesaffected * afterpolicy 

(.065) (.039) (.089)

The coefficient for casesaffected * afterpolicy reflects the change in cycle time 

specifically associated with the policy change in May 2005, lowering the threshold from 

$200,000 to $100,000 for cases eligible for MSP. Specifically, 

ˆ δ = -.0489 (t =-.55) 

Coding for Variables Treated as Treatment and Control Groups

The variable casesaffected is a dummy variable coded 1 for all cases in the treatment 

group. The variable afterpolicy is a dummy variable coded 1 if the case was assigned to a 

settlement judge after the policy change, May 5, 2005. 

Coding for the Interactive Effect 

The variable afterpolicy is the key variable for determining the effect of the policy 

change on cycle time. This variable is an interaction created by multiplying the values on 

the variables casesaffected and afterpolicy. The result is a value of 1 if cases are both in 

the treatment group and also assigned to the settlement judge after the policy change. The 

coefficient on afterpolicy is the key result in this equation; it is neither substantively nor 

statistically significant, implying the policy change by itself neither increased nor 

decreased the average cycle time for cases. Note that in this model we do not consider the 

effect of case characteristics or other factors that may be driving any changes in cycle 

time. 

Notes Associated with Model: Controls for Years, Judges, and DOL Regions 

To preserve space individual coefficients on each of the ten years in the sample is not 

shown in the table. Statistical tests indicate that individual coefficients for the years 2001 

and 2010 are both significant. The year 2001 is associated with a 2 percent increase in 

cycle time (p<.05) and the year 2008 is associated with a 4.8 percent increase in cycle 

time (p<.01). 

We used a Wald test to test the joint significance of the subset of coefficients for years. 

The test shows that as a group the years are significant; there are some unobserved effects 

associated with years that vary cycle time.

Wald Test of Joint Significance for Years:
63

Wald Test of Joint 

Significance for Years

F(10, 1188) = 2.17

Prob > F = 0.0175

Model 3 also controls for effects associated with judges. We use the field judge key in the 

OSHRC files. In running the regression we found that not all individual coefficients 

associated with judges are significant. However, results of a Wald test indicate joint 

significance of the group. 

Wald Test of Joint 

Significance for Judges

F(16, 1188) = 3.10

Prob > F = 0.0000

A Wald test indicates joint significance of the group of variables that control for different 

DOL regions 

Wald Test of Joint 

Significance for DOL 

Regions

F( 11, 1188) = 2.41

Prob > F = 0.0059
64

DOL Regions and Industry Effects 

We believe the controls for DOL regions also tap into industry effects. We tried the 

equation in model 3 using select industry indicators as an alternative to DOL region 

codes, under the assumption that practices (and perhaps violations) may be similar within 

industries and that some industries may be associated smaller or larger cycle times. We 

were able to find SIC codes for about 200 cases in our sample. However the effects, 

considered as a group, were very similar substantively and significantly to the effects 

produced by adding DOL regions. Since there were many more SIC codes then DOL 

regions and since adding SIC codes considerably reduces the number of observations in 

the results, we decided to use only DOL regions. We suspect that DOL region codes are 

in part also tapping into industry effects since industries are associated with different 

regions of the country as well as DOL jurisdictions
65

Appendix B-2: Technical Appendix- Probit Analysis: Factors Predicting Cases that 

will Fail to Settle in Settlement Part

Tests of Model Fit. 

The Log likelihood for the fitted model= -37.611005. This statistic is used in the 

Likelihood ratio (LR) chi-square test of whether all predictors’ regression coefficients in 

the model are simultaneously zero. The LR chi2 (8)=30.50. This is the likelihood ratio 

(LR) Chi-square test that at least one of the predictor regression coefficients is not equal 

to zero. The number in parenthesis (8) indicates degrees of freedom of the Chi-Square 

distribution used to test the LR Chi-Square statistic and is defined by the number of 

predictors in the model. Prob>chi2 for the model is .0002. The probability of getting an 

LR test statistic as extreme as, or more so, than the observed statistic under the null 

hypothesis. The null hypothesis is that all the regression coefficients are simultaneously 

equal to zero. In other words, this is the probability of obtaining this chi-squared (30.50) 

or one more extreme, if there is no effect of the predictor variables. The p value is 

compared to a specified output level of .05. With the very small p value of .0002 we 

conclude that at least one of the regression coefficients in the model is not equal to zero.

Probit Regression Equation 

The predicted probability that a case assigned to SP does not settle in SP is: 

F( -0.884 + penalties * .00074 + anyrepeat * 1.073+ anywillful * .0878 + accident

* .557 + referral *.213 + complaint * 1.612 + union *.700 + delays *.742. )

R-Square

Probit regression does not have an equivalent of the R-Square that is found in ordinary 

least squares regression. The McFadden psuedo R-Squared is a commonly used 

alternative for a probit mode. The Pseudo R-Square for the model is. 349, indicating that 

our group of predictor variables is associated with approximately 35% of the variation in 

our outcome variable.
66

Appendix B-3: Technical Appendix- Probit Predicting the Likelihood of Subsequent 

OSHA Violations for MSP and Conventional Cases

Case Selection Issues

We were limited in the number of cases for which we could attempt to retrieve OSHA 

inspection numbers and OSHA histories. Not all docket numbers were available for all 

cases supplied by OSHRC. Without docket numbers there is no way to search for OSHA 

inspection numbers and to retrieve OSHA inspection records. We were also not able to 

find all the missing docket numbers on our own with the MS Access files supplied by 

OSHRC back in 2011 as those files did not include all information on the most recent 

OSHRC cases. OSHRC’s conversion from MS Access based system of records to 

ProLaw in recent months also complicated efforts. With much assistance from OSHRC 

personnel, researchers did their best to obtain the missing data. However, the data for this 

analysis is still subject to limitations

Tests of Model Fit

Preliminary tests indicate confidence in two models above others, both of which predict 

the likelihood of any subsequent violations. Specifically, the Wald chi2 tests and 

associated probability for table X column 1 and table X column 1 tell us that these two 

models are statistically significant overall. This test approximately the LR test discussed 

in the previous section, with certain advantages. The test tells us whether the predictors in 

the model are simultaneously equal to zero. In models 2-5 in table X and model 2 in table 

X we are not able to reject the null hypothesis. Although we can’t say with confidence 

that these models fit significantly better than models with no predictors, we do not 

discount them altogether; correlation tests and other statistical tests provide evidence of 

relationships between the predictors and the outcome variables in these models in the 

same directions indicated with the signs on the coefficients. However, given results of the 

Wald tests and we will focus our interpretations on the first columns in each table. 22

Predicted Probabilities of Observing Subsequent Violations for MSP and Conventional 

Cases

For table B-5 predictions are obtained using the commands prvalue and prchange in 

Stata. All other variables are held at their means for the predictions. The probability of 

observing no subsequent violations is obtained by setting the variable any_ 

subseq_viol=0 in Stata. The probability of observing any subsequent violations is 

obtained by setting the variable _ subseq_viol = 1 in Stata. For cases not assigned to 

MSP we set the variable assignmentMSP=0 in Stata. Cases assigned to MSP we set the 

variable assignmentMSP = 1.

We use a confidence level of 95 % for all predictions (p<.05).

																																																												 22 Wald chi2-square and p-values for each model appear at the bottom of each column.
67

For predictions in table B-5 we examine only cases in Mandatory Settlement Part. We 

obtained predictions using commands prvalue and prchange in Stata and set the variable 

assignmentMSP=1. 

We use a confidence level of 95 % for all predictions (p<.05).

Additional Tests

Additional tests associated with table B-6 and B-7 show that the predicted probabilities 

hold with a 95% level of confidence or better both with other variables held at their 

mean, and also when the variable assignmentMSP is set to a value of one.
68

Section C. Participants’ Perceptions of OSHRC Programs: Summary of Survey 

Responses with Focus on Procedural and Distributive Justice

Introduction

OSHRC’s mission is to provide fair and timely resolution of disputes relative to OSHA 

citations. In response to the question what do parties want from their system of justice, 

Professor Tyler, a leading procedural justice theorist and scholar, responds: 

People’s attitudes [about legal authorities and their decisions] are also important 

because, to the extent possible, legal decisions should be based on a consensus of 

the parties to the dispute about what is just. People should be able to willingly 

embrace the solutions reached in legal proceedings. They should want to accept 

those solutions. In other words, justice does not flow only from the interpretation 

of legal doctrines by legal scholars, judges, and/or philosophers, who tell people 

what is a just solution to their problems. It also develops from the concerns, 

needs, and values of the people who bring their problems to the legal system. In 

this sense, the parties to a dispute own the dispute and should be involved in its 

resolution. While the legal system and society more generally have legitimate 

interests in the interactions of citizens, those interests do not preclude concern 

about the values of the disputants.1

In his review of procedural justice research, Professor Tyler also notes that disputants’ 

concerns change as they actually deal with legal authorities. Their concerns shift from 

self-interest in the outcome or distributive justice toward issues of participation or voice, 

trustworthiness, respect, and neutrality, that is, toward relational concerns.2

Some of these concerns have framed aspects of the body of research on dispute resolution 

in courts. The leading Rand Institute of Civil Justice Study compared perceptions of 

justice in different court connected dispute resolution processes.3 Researchers found that 

disputants were more satisfied with aspects of procedural justice in non-binding 

arbitration and trials than they were in judicial settlement conferences. The judicial 

settlement conferences studied often did “not involve any direct participation at all for 

litigants; the attorneys typically meet with a judge in chambers and undertake an informal 

discussion of the possibilities for and advantages of settlement.”4 Researchers contrasted 

this process with arbitration, pointing out that a judicial settlement conference usually 

focuses on possibilities for compromise, not the liability or merits of the case, and that 

judges are free to adopt any procedure for running the conference that they choose. See 

																																																												 1 Tom. R. Tyler, Citizen Discontent with Legal Procedures: A Social Science Perspective 

on Civil Procedure Reform, 45 Amer. J. of Comp. Law 871, 875 (1997).

2 Id. at 894.

3 E. Allan Lind, Robert J. MacCoun, Patricia A. Ebener, William L. F. Felstiner, Deborah 

R. Hensler, Judith Resnik, Tom R. Tyler, The Perception of Justice: Tort Litigants’ Views 

of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences. Santa Monica, 

CA: The Rand Institute for Civil Justice (1989).

4 Lind, et al., at 13.
69

also, research conducted by The Federal Judicial Center on the use of ADR in district 

courts.5

This literature helped frame some of the questions on the external stakeholder mail 

surveys to participants in Settlement Part and Conventional proceedings. Mail surveys 

provide a means to assess participants’ perceptions of fairness and to gage levels of 

satisfaction with various aspects of OSHRC’s programs. 

Background Research

In addition to knowledge of academic literature regarding alternative dispute resolution 

(ADR) and more specifically court-annexed ADR, the research team analyzed OSHRCspecific information. Included were all related OSHRC regulations, information 

regarding Conventional Proceedings and the implementation of the Mandatory 

Settlement Part to improve outcomes for cases within Conventional. Researchers also 

reviewed relevant rule changes in the Federal Register, information published in the 

traditional press regarding OSHRC programs, information published on OSHRC’s 

website, and information provided by OSHRC administrative personnel. 

Other Preliminary Steps

IU submitted an application to the IU Institutional Review Board (IRB) seeking approval 

for the research under human subjects guidelines. Researchers received approval for the 

questionnaire design and protocol on September 30, 2011 (IRB 1107006384).

In compliance with the Paperwork Reduction Act of 1995, on November 1, 2011 OSHRC 

published a 60-day notice in the Federal Register (76 FR 67496) soliciting comment on 

the information collection associated with Settlement Part survey. On April 4, 2012 

OSHRC published a 60-day notice in the Federal Register (77 FR 20442) soliciting 

comment on the information collection associated with the Conventional survey. The 

comment period ended for both notices with no comments were received. OSHRC 

applied and received subsequent approval from the Office of Management and Budget 

(OMB) for both surveys. 

IU submitted an application for amendment of IRB approval consistent with changes 

recommended by the OMB. IRB approved amendments to the design and protocol on 

June 22, 2012 (IRB 1107006384- AMD).

Sampling Frames 

The population frames include recent OSHRC program participants acting as any one of 

the following: Representative of Employer (non-attorney), Representative of Employer 

																																																												 5 E.g., Meierhoefer, Barbara S. (1990). Court-Annexed Arbitration in Ten District 

Courts. Federal Judicial Center.
70

(attorney), Solicitor of Dept. of Labor, Authorized Employee Representative (union), or 

Attorney for Authorized Employee Representative. 

Sampling frames are slightly different for the two surveys: The Settlement Part mailing 

list includes all those who actively participated in Mandatory Settlement and Voluntary 

Settlement under 29 CFR 2200.120 between February 15, 2011 and February 14, 2012. 

Docket cases associated with this group have a proposed total penalty amount of at least 

$100,000. The Conventional /Non SP mailing list includes all those who actively 

participated in Conventional proceedings between February 15, 2011and February 14, 

2012. Docket cases associated with this group have a proposed total penalty amount of at 

least $50,000 but less than $100,000. 

The nature of the survey questions (about experiences) imposes some limitations on the 

sample frame.6 Previous program participants are not likely to accurately recall their 

experiences from several years ago but they are likely to recall more recent experiences. 

The sampling frame allows us to make assertions about recent participants in the 

individual programs, not all participants since the program was initiated. In addition, we 

can only safely generalize to the sample frame if the list provided to us is accurate. 

Survey Design 

Following the original research proposal, IU designed and implemented two mail 

surveys. The first mail survey targeted individuals that recently participated in OSHRC’s 

Settlement Part Program. The second mail survey targeted in individuals that recently 

participated in OSHRC’s Conventional Proceedings. The two survey designs are nearly 

identical, with slight differences in language referencing the specific OSHRC program in 

which the respondent participated. Researchers designed the questions to reflect the 

theory and previous research on “justice.” The heart of the surveys includes questions 

relevant to the participants’ satisfaction with the outcomes and administration of 

OSHRC’s processes. The various aspects of the process are assessed across two models 

of justice: distributive justice (satisfaction with outcomes) and procedural justice 

(satisfaction with the process and judge) 7 The questionnaire also elicits background 

information, including the participants’ role in case, past experiences with OSHRC 

proceedings, and the nature of the participants’ most recent case. This background 

information is useful for examining satisfaction levels across categories of respondents. 

Researchers phrased and formatted the questions consistent with best practice methods. 8

Survey Plan

																																																												 6 To be representative of a population the sampling frame should include all or nearly all 

of the members of a population. 

7 Lind, E. A., and T. R. Tyler. (1988). The Social Psychology of Procedural Justice. New 

York: Plenum Press.

8 Dillman, D., J. Smyth, and L.M. Christian. (2009). Internet, Mail, and Mixed Mode 

Surveys. The Tailored Design Method. 3rd edition. Hoboken, NJ: John Wiley & Sons.
71

IU’s survey design and implementation plan have a basis in theory and research. The 

Dillman method (also referred to as the total design method or TDM) is a set of 

techniques derived from social exchange theory and is considered the state or art for 

survey research. The logic of the method is basic: Survey recipients are most likely to 

respond if they expect that the perceived benefits of doing so will outweigh the perceived 

cost of responding. Accordingly, every element of the questionnaire design and the 

survey implementation method is intended to address the perceived cost/ benefit calculus 

of the respondent. For example, the questionnaire is designed so that it is easy to read, 

interesting, and take a minimum amount of time. The respondent should have trust in its 

use and be convinced that his or her response is valuable.

Researchers designed a system of multiple complimentary contacts consistent with the 

Dillman method. 9

1. The initial mailing included a cover letter from OSHRC, a cover letter from IU, 

a brief questionnaire, and a prepaid envelope. Letters from OSHRC and IU 

communicated legitimacy and purpose. The OSHRC letter assured potential 

respondents that the agency engaged IU to conduct the study and urged the 

importance of a response. Previous research finds that government sponsorship 

improves response rates. IU designed OSHRC government stationery to include 

in the mailer. Researchers also incorporated the original signature of Debra Hall, 

(OSHRC Executive Director) on the letterhead. The letter from IU (on original 

letterhead) explained the goals of the study, promised our efforts to maintain 

confidentiality, and provided contact information of the co-Pi’s as well as contact 

information for the IU Human Subject office. The survey questionnaire was light 

blue in color (to contrast with other items). Researchers included a prepaid 

envelope to make responding as easy as possible. 

2. Researchers mailed a follow up postcard 10 days after the initial mailing. The 

postcard served as a thank you to those who already responded and a gentle 

reminder to those who had not yet returned the survey. The postcard included the 

names of the co-PI’s. 

3. Researchers completed a “special contact” (phone or email), two weeks after 

postcard mailing. The Dillman (2009, 24) method calls for a different mode from 

mailing for this contact. Researchers were not able to contact all non-respondents 

at this stage because OSHRC could not provide complete contact information. 

However, every effort was made to obtain mail addresses to increase response 

																																																												 9 Dillman et al (2009) suggest a five-contact system that can be modified based on 

circumstances. We were somewhat constrained by the OMB requirements and by the 

description of the survey strategy described in the federal register. Specifically, the 

federal government requires minimal burden on individuals and small businesses. We 

would have preferred a separate prenotice letter explaining the nature and importance of 

the survey and inviting responses. A separate letter from IU and one from OSHRC 

accompanied the initial mailing. 
72

rates. Replacement questionnaires were sent if respondents said they misplaced 

the original survey. 

4. Researchers completed a second “special contact” (phone or email) attempt, 

approximately 4 weeks after follow up post card. 

Researchers also developed steps and implemented procedures to minimize four types of 

survey error: nonresponse error, sampling error, coverage error and measurement error.

Nonresponse Error 

Nonresponse error stems from the fact that some of the members of the population do not 

respond to the survey questions. Response rates are a generally accepted indicator of 

nonresponse error. The general assumption is that the higher the response rate, the lower 

the potential of nonresponse error. The substance of both surveys present a challenge for 

predicting response rates, because participants in both programs may have been involved 

in settlement negotiations. Settlement negotiations are typically confidential and it is 

difficult to assess participants’ reluctance to answering questions in any way related to 

the process, even if the questions do not breach confidentiality. Previous research 

suggests the potential for reducing nonresponse error varies considerably across types of 

surveys. Topic salience and the effect of structural constraints (sponsorship and 

population to be surveyed) are two of the most important determinants of response 

rates.10

The initial mailing produced a response rate of 33% for Settlement Part and 25% for 

Conventional. The follow up postcard increased the response rates to approximately 38% 

and 35% for Settlement Part and Conventional, respectively. Subsequent contacts by the 

researchers increased response rates to 51% for Settlement Part and 50% for 

Conventional. 

The tables below include the responses rate by category of respondent for each survey.

																																																												 10 Heberlein, T.A. and R. Baumgartner (1978). Factors affecting response rates to mailed 

questionnaires: A quantitative analysis of the published literature. American Sociological 

Review, 43, 447-462.
73

Table C-i Settlement Part Survey Response Rate

Source Number of Records Number of 

Respondents Response Rate

Representative of 

Employer (non-attorney)

17 8 47%

Representative of 

Employer (attorney)

68 37 64%

Solicitor for Department 

of Labor

44 19 43%

Authorized Employer 

Representative (Union)

12 8 67%

Attorney for Authorized 

Employee Representative 

4 3 75%

Other ---- 0 ----

Total 144 74 52%

Table C-ii Conventional Proceedings Survey Response Rate

Source Number of Records Number of 

Respondents Response Rate

Representative of 

Employer (non-attorney)

22 6 27%

Representative of 

Employer (attorney)

61 40 66%

Solicitor for Department 

of Labor

49 18 37%

Authorized Employer 

Representative (Union)

2 2 100%

Attorney for Authorized 

Employee Representative 

0 0 ----

Other * 2 2 100%

Total 134 68 50%

*Researchers believe the records in this category are misidentified in the OSHRC 

database. The responses in this category are likely a result of respondent error 

(measurement error). 

Minimizing nonresponse error involves motivating people to respond so that completed 

surveys are returned. A special effort should be made to ensure that response rates do not 

vary for different groups or by characteristics important to the study. Researchers made at 

least three attempts over the course of the survey to contact non-respondents by telephone 

and email to encourage returns. 

Although final response rates are reasonable, possible nonresponse bias is assessed by 

comparing characteristics associated with respondents and non-respondents. The 
74

traditional method compares the distribution of known relevant population characteristics 

for respondents and non-respondents for variables important to the research. Researchers 

compared the total proposed penalty amounts and number of items contested for the most 

recent cases for the two groups.11 The results of statistical tests of mean differences 

show the two groups to be comparable. 

Sampling Error 

Sampling error is attributable to the fact that certain members of the population are 

excluded by virtue of selection of a subset, that is, because the surveys come from a 

sample and not the entire population. In the present research, our samples include only 

recent participants in OSHRC programs. There may be differences between this group 

and participants from earlier years, which could result in sampling error. 

Coverage error

Coverage error occur when the choice of sampling mode may not provide adequate 

coverage of the population, as in the case with Internet surveys if a significant number of 

people in the population do not have access to the Internet. Our primary sampling mode 

is mail and we are confident that all samples in our frame receive mail. Researchers also 

took steps to check that all participants that should be on the mailing list were in fact on 

the lists provided by OSHRC. Researchers cross -checked docket numbers, dates and 

names on the lists provided with other information available from OSHRC’s database. 

Duplicate entries on the list were removed to ensure that all elements had equal 

representation in the frame and that no element had a greater probability of selection. 

Measurement Error

Measurement error refers to the discrepancy between underlying, unobserved variables, 

such as opinions or attitudes. Measurement error results from the process of observation, 

including the ability or desire of respondents to provide accurate information. It can also 

result from poorly worded questions. A survey pretest is a common method of reducing 

measurement error. Researchers did not conduct a pretest before mailing the survey, but 

many of the survey questions are identical to questions contained in IU’s previous study 

of OSHRC’s EZ Trial Program conducted in 2000/2001. Moreover, many of them are 

drawn directly from the procedural justice literature and other studies done on dispute 

resolution and dispute processes. Each question was worded to be as clear as possible for 

respondents and all responses are designed to be mutually exclusive and exhaustive. In 

addition, before finalizing the present questionnaire the researchers provided OSHRC 

Administrative Law Judges from all three area offices with an opportunity to provide 

feedback. 

																																																												 11 Researchers can only base comparisons on available information. The most important 

information for comparison pertains to participants’ perceptions of justice and 

satisfaction levels with OSHRC processes and outcomes. However, such comparisons 

cannot be made since the survey itself is the vehicle for ascertaining the information. 
75

In conducting any survey, researchers are hopeful that respondents are able to provide 

well-informed answers. The more familiar our respondents are with the different types of 

OSHRC programs, the more acquainted they will likely be with the terms of art used in 

the survey. Respondents of both surveys are generally familiar with OSHRC programs of 

all types, not just the program (Mandatory Settlement Part or Conventional) that we 

asked them to answer questions about. The next two tables provide a sense of the 

respondents’ familiarity with the different OSHRC programs, broken down by 

respondent role. As might be expected, attorneys that responded to both surveys are the 

most familiar with all of OSHR programs. 

Table C-iii. MSP SurveyFamiliarity of Respondents with Different OSHRC Programs by Role

Rep. of 

Employernon 

attorney

Rep of 

Employerattorney

Solicitor 

for DOL

Authorized 

Employee 

Representative 

(Union)

Attorney for 

Authorized 

Employee 

Representative

Simplified 

Proceedings 0 14 14 3 0

Conventional 

Case through 

Mandatory 

Settlement

5 33 19 6 2

Conventional 

case 

Resolved 

with a Trial

1 14 13 3 0

Conventional 

Case 

Resolved 

without a 

Trial

5 21 17 3 1

Total 11 82 63 15 3

* There are more responses that number of respondents because each respondent 

checked “all that apply”
76

Table C-iv. Conventional SurveyFamiliarity of Respondents with Different OSHRC Programs by Role

Rep. of 

Employernon 

attorney

Rep of 

Employerattorney

Solicitor 

for DOL

Authorized 

Employee 

Representative 

(Union)

Attorney for 

Authorized 

Employee 

Representative

Simplified 

Proceedings 2 11 5 0 0

Conventional 

Case through 

Mandatory 

Settlement

1 13 9 0 1

Conventional 

case 

Resolved 

with a Trial

0 8 8 0 1

Conventional 

Case 

Resolved 

without a 

Trial

1 15 7 1 1

Total 4 47 29 1 3

* There are more responses that number of respondents because each respondent 

checked “all that apply”

** A count of 2 “Others” not included in breakdown

Other Possible Limitations

The nature of the questions themselves also poses some limitations on generalizability 

and reliability. In both surveys we asked respondents to reflect on their most recent case 

at OSHRC when answering questions. It is possible that responses from these same 

respondents may differ at another point in time. The nature of respondents’ most recent 

case provides at least some context for their responses. Respondents for both surveys 

typically described their case as having three dimensions. Most disputes in MSP and 

Conventional are described as: disagreement that OSHA violation(s) actually occurred; 

dispute about the fine amounts; and dispute about OSHA's characterization of the 

violations as willful, repeat, or serious. In comparing responses from both surveys, we 

note that respondents for the Conventional (Non-Simplified) cases disputed more aspects 

of the violations compared to respondents for the MSP survey. There are also more 

disputes about abatement period and more disputes about the nature of the violation 

associated with Conventional (Non-Simplified). The next two tables provide a context for 

survey responses but also highlight the comparative differences in the nature of the 

disputes underlying each survey. 
77

Table C-v. MSP Survey-Nature of Most Recent Case

Answer Bar Responses*

Disagreement that OSHA violation(s) actually occurred 57 84%

Dispute about the fine amounts 49 72%

Dispute about the abatement period 9 13%

Dispute about OSHA's characterization of the violations 

as willful, repeat, or serious 49 72%

Other 7 10%

Total 171 100%

* There are more responses that number of respondents because each respondent checked 

“all that apply” 

Table C-vi. Conventional Survey- Nature of Most Recent Case

Answer Bar Responses *

Disagreement that OSHA violation(s) actually 

occurred 58 85%

Dispute about the fine amounts 56 82%

Dispute about the abatement period 26 38%

Dispute about OSHA's characterization of the 

violations as willful, repeat, or serious 54 79%

Other 6 9%

Total 200 100%

* There are more responses that number of respondents because each respondent checked 

“all that apply”
78

Survey Response Summary

In this section we summarize survey responses according to five main themes:

• Participants’ Perceptions of Case/ Resolution Efficiency

• Procedural Justice

• Distributive Justice

• Discovery-Related Responses

• Participants’ Preference for Different Adjudicatory Processes

In this section we also reference relevant cross-tabulations. The cross-tabulations are 

labeled as tables C1 through C-37. Individual cross-tabulation tables show the questions 

and the aggregate responses by participant role. For ease of interpretation, we present 

participant roles in three categories: Employer Representatives (attorney and nonattorney); Employee Representatives (attorney and union); and Solicitor for DOL. We 

also merge response categories to form response groups: “very satisfied” and “satisfied” 

are merged; “dissatisfied” and “satisfied” are merged; “strongly agree” and “agree” are 

merged; “disagree” and “strongly disagree” are merged. 

Individual cross tabulations also provide Chi-Square statistics. The Chi-Square statistic is 

the primary statistic used for computing statistical significance in cross-tabulation tables. 

Chi -Square is used to test whether or not two variables are independent. If the variables 

are independent (have no relationship), the results will be non-significant, and we are not 

able to reject the null hypothesis, meaning there is no relationship between the variables. 

If the variables are related, the results will be significant, and we are able to reject the 

null hypothesis, meaning there is a relationship between the variables. The Chi-Square 

statistic is given along with the associated probability of chance observation. If the pvalue for statistical significance is .05 level, there is a very low chance (5% or less) that 

the variables are independent. 

Participants’ Perceptions of Case/ Resolution Efficiency

Overall, MSP participants are more satisfied than dissatisfied with the efficiency of MSP. 

Fifty-nine percent of respondents do not believe their case should have resolved sooner 

than it did, compared to 41 percent who do believe their case should have resolved 

sooner. Moreover, where dissatisfied, complaints are more directly related to the level of 

cooperation from OSHA rather than OSHRC participants in the case (See separate 

volume: Supplemental Report on All Survey Responses). In a second question relevant 

to case efficiency, the responses can be interpreted as even more favorable. When asked 

if they were satisfied with the length of time it took to resolve their case: about 43 percent 

of survey respondents reported that they were satisfied or very satisfied with the length of 

time it took to resolve their case, compared to only 19 percent who expressed a level of 
79

dissatisfaction with the resolution time (38 percent did not provide an opinion on the 

question). The majority of respondents (51 percent) also believe that their case would 

have required more time if there had been a trial on the merits, compared to about 24 

percent who believe their case would have resolved sooner with a trial. (24 percent also 

did not express an opinion the question). If there is room for improvement, it may be in 

scheduling; about 49 percent of MSP survey respondents believe the scheduling of 

motions, hearings, and other matters was prompt; however, about 31 percent do not. 

For cross-tabulations and detailed responses relevant to the MSP survey, see:

Table C-1. MSP: Opinion on Whether Case Should Have Resolved Sooner 

Table C-2. MSP: Satisfaction with Time to Resolution 

Table C-3. MSP: Opinion Comparing Time to Resolution for MSP to Trial on 

Merits 

Table C-4. MSP: Opinion on Promptness of Scheduling Conferences, Motions, 

and Other Matters

Separate volume: Supplemental Report on All Survey Responses

Overall, the Conventional survey yielded very similar results on the question, do you 

think your case should have resolved sooner than it did? About 53 percent reporting that 

their case should not have resolved sooner than it did and 47 percent thinking it should 

have resolved sooner. 12 One question appears on the Conventional survey but not on the 

MSP survey that is relevant to participants’ perceptions of case efficiency: Do you think 

the case would have settled earlier with the help of the judge? A total of 39 percent of 

Conventional survey respondents either agreed or strongly agreed that their case would 

have settled earlier with the help of a judge, compared to 24 percent who either disagreed 

or strongly disagreed. About 36 percent were “neutral,” this likely due to the fact that 

many Conventional cases do in fact eventually settle. Finally, a total of 88 percent of 

survey participants either agreed or strongly agreed that the scheduling of conferences 

and other matters was prompt; compared to about 3 percent that disagreed or strongly 

disagreed. Thus, participants in Conventional Proceedings appear to be generally more 

satisfied with the prompt scheduling of conferences, motions, and other matters. For 

cross-tabulations and detailed responses relevant to the Conventional Proceedings survey, 

see:

Table C-5. CP: Opinion on Whether Case Should Have Resolved Sooner Table 

Table C-6. CP: Opinion on Earlier Resolution with Help of Judge 

Table C-7. CP: Opinion on Promptness of Conferences, Motions, and Other 

Matters

																																																												 12 The Conventional Proceedings survey did not include the question, are you satisfied 

with the length of time it took to resolve your case? 
80

Against this backdrop, we note that most cases in both MSP and Conventional (nonSimplified) do settle, and many cases settle early on in the process. A very high 99 

percent of MSP survey respondents reported that their case did settle without a trial, and 

only 1 percent (and only one respondent) reported having a trial. Moreover, about 21 

percent settled their case prior to the Settlement Part conference, compared to 40 percent 

who settled after the conference but before a trial was scheduled, and 38 percent who 

settled after the conference and after a trial was scheduled. For cross-tabulations and 

detailed responses relevant to the MSP survey, see:

Table C-8. MSP: Point of Case Resolution

Ninety-one percent of Conventional survey respondents reported that their case resolved 

before a trial on the merits. Thus, the numbers in our small sample suggest a slightly 

higher settlement rate for MSP compared to Conventional. With respect to the timing of 

Conventional case settlements, 55 percent of respondents report settling before a trial on 

the merits was scheduled; 36 percent report settlement after a trial on the merits was 

scheduled, but before the trial began. For cross-tabulations and detailed responses 

relevant to the Conventional Proceedings survey, see:

Table C-9. CP: Point of Case Resolution

Procedural Justice

We conclude from analysis of surveys that participants in both OSHRC Settlement Part 

and Conventional Proceedings give the agency high marks for procedural justice. 

Procedural justice concerns the fairness and transparency of the process by which 

decisions are made. Theories of procedural justice hold that fair procedures lead to 

equitable outcomes, even if the requirements of distributive justice are not met. As a 

result, participants in dispute resolution processes who believe they are treated fairly tend 

to be more satisfied overall. High quality interpersonal interactions are a key component 

of procedural justice and affect a person’s perception of fairness during conflict 

resolution. Overall, the majority (73 percent) of MSP participants are either very satisfied 

or satisfied with the fairness of OSHRC processes, compared to 12 percent who 

expressed a level of dissatisfaction. When asked about their most recent experience with 

Mandatory Settlement Part, majorities also reported that they were treated with respect 

(92 percent), were satisfied with the level of control over the process (73 percent), 

believed the amount of information exchanged in their case was appropriate given the 

facts/nature of the case (70 percent), and were able to participate as fully as they needed 

(82 percent). For cross-tabulations and detailed responses relevant to the MSP survey, 

see:

Table C-10. MSP: Satisfaction with Fairness of the Process 

Table C-11. MSP: Satisfaction with Level of Respect 

Table C-12. MSP: Satisfaction with Level of Control Over Process 
81

Table C-13. MSP: Opinion on Appropriateness of Amount of Information 

Exchanged 

Table C-14. MSP: Ability to Participate Fully as Needed

Mandatory Settlement Part responses are generally comparable to the Conventional

Proceedings survey, which also show high ratings for the main indicators of procedural 

justice. Overall, the majority (82 percent) of Conventional survey respondents reported 

that they were either very satisfied or satisfied with the fairness of OSHRC processes, 

compared to only 6 percent who expressed a level of dissatisfaction. When asked about 

their most recent OSHRC experience, majorities reported satisfaction with the level of 

respect with which they were treated (91 percent) and satisfaction with the level of 

control they had over the process (77 percent). Majorities also were in agreement that the 

amount of information exchanged in their case was appropriate given the facts/nature of 

the case (91 percent), and that they were able to adequately present and defend their 

position (94 percent).13 For cross-tabulations and detailed responses relevant to the 

Conventional Proceedings survey, see:

 

 Table C-15. CP: Satisfaction with Fairness of Process

Table C-16. CP: Satisfaction with Level of Respect 

Table C-17. CP: Satisfaction with Level of Control Over Process

Table C-18. CP: Ability to Adequately Present and Defend Position 

Table C-19. CP: Opinion on Appropriateness of Amount of Information 

Exchanged

MSP survey responses suggest participants do in fact find OSHRC’s rules of procedure

for Settlement Part easy to understand. About 84 percent of survey participants agree or 

strongly agree that OSHRC’s rules of procedure are easy to understand; only 8 percent 

disagree or strongly disagree that OSHRC’s rules of procedure are easy to understand. 

For the cross-tabulation and detailed responses relevant to the MSP survey, see:

Table C-20. MSP: Rules of Procedure are Easy to Understand

Again, Mandatory Settlement Part compares favorably to Conventional survey responses 

show similar high levels of satisfaction regarding the clarity of OSHRC rules. Overall, 79 

percent of survey participants agreed or strongly agreed that the rules of procedure were 

easy to understand; 15 percent neither agreed nor disagreed; and six percent disagreed or 

strongly disagreed. For the cross-tabulation and detailed responses relevant to the 

Conventional Proceedings survey, see:

																																																												 13 The MSP survey question differs from the Conventional survey question regarding 

participation. The MSP survey reads: “I was able to participate as fully as needed.” The 

Conventional survey reads, “I was able to adequately present and defend my position.” 

Responses in both surveys are scaled from strongly disagree to agree.
82

Table C-21. CP: Rules of Procedure are Easy to Understand

We know from the literature that the quality of interpersonal interactions are a key 

component of procedural justice and affect a person’s perception of fairness during 

conflict resolution. Personal contacts are usually valued more by those who interact than 

communications by mail, for example. Two questions on the MSP survey provide an 

indication of the mode of interaction and the frequency of interaction between recent 

MSP participants and OSHRC’s Administrative Law Judges. About 70 percent of MSP 

survey respondents reported that they met with the settlement judge, in-person, at least 

once during their most recent MSP case, while about 30 percent reported that they did not 

meet with the judge at all. With respect to frequency of personal interactions, about 45 

percent reported that they appeared before the judge only once, about 21 percent 

appeared between 2 and 5 times and 4 percent (only 3 respondents) appeared more than 5 

times. For the cross-tabulation and detailed responses relevant to the MSP survey, see:

Table C-22. MSP: Number of Times Met for Settlement Conference In-Person

In the MSP survey we also asked the more general question about the number of times 

participants communicated with the judge, which could include mail and phone contacts 

as well as in-person meetings, 93 percent reported that they communicated with the judge 

at least once; and a small percent (7 percent) reported never communicating with the 

settlement judge, and only 6 respondents reported more than 5 contacts. For the crosstabulation and detailed responses relevant to the MSP survey, see:

Table C-23. MSP: Number of Times Communication Exchanged with Judge 

During Settlement Process

Conventional cases do not provide a basis for a meaningful comparison. However, we do 

provide the cross tabulations for Conventional cases relevant to communications with the 

judge. See:

Table C-24. CP: Number of Times Communication Exchanged with Judge During 

Litigation Process- Orally

Table C-25. CP: Number of Times Communication Exchanged with Judge During 

Litigation Process- Written Form

Distributive Justice

Distributive justice concerns the notion of fair outcomes. Overall, the large majority of

respondents were either very satisfied or satisfied (68 percent) with the overall outcome 

of their recent experience with the Mandatory Settlement Part, while a minority were 

very dissatisfied or dissatisfied (16 percent). For the cross-tabulation and detailed 

responses relevant to the MSP survey, see:

Table C-26. MSP: Satisfaction with Overall Outcome of Case 
83

These perceptions of fair MSP outcome were generally comparable to participants’ 

perceptions of outcomes in Conventional Proceedings: A total of 79 percent of survey 

respondents were either satisfied or very satisfied with the overall outcome of the case. 

However, fewer participants were dissatisfied or highly dissatisfied in Conventional cases

(3 percent). Given that the MSP cases were higher stakes cases due to its jurisdictional 

amount, this difference is understandable. For the cross-tabulation and detailed responses 

relevant to the Conventional Proceedings survey, see:

Table C-27. CP: Satisfaction with Overall Outcome of the Case

Even well-designed processes can have a less than desirable outcome. Thus, researchers 

sometimes consider participant satisfaction with the process overall as both an outcome 

and a process measure, i.e. an indicator of procedural justice and distributive justice. 

When asked about fairness of the process overall, about 74 percent of respondents were 

either satisfied or very satisfied, compared to 12 percent who were either dissatisfied or 

very dissatisfied. About 14 percent of respondents were neutral on the question. For the 

cross-tabulation and detailed responses relevant to the MSP survey, see:

Table C-28. MSP: Satisfaction with Process Overall

The Conventional survey also includes the question: How satisfied are you with the

process overall? Responses indicate 84 percent of respondents were either satisfied or 

very satisfied, compared to a very low 3 percent who expressed a level of dissatisfaction. 

About 13 percent of respondents were neutral on the question. For the additional crosstabulation and detailed responses relevant to the Conventional Proceedings survey, see:

Table C-29. CP: Satisfaction with Process Overall

Responses to Discovery-Related Questions

Over the past decade OSHRC has made various changes to its rules of procedure, 

including changes to the timing of discovery. Responses to three questions in our survey 

provide useful information for understanding participants’ perceptions of a few of 

OSHRC’s rules. Specifically, in both surveys we asked participants for their opinions on 

the timing of discovery (both before and after the in-person settlement conference). We 

also asked for opinions on the timing of the in-person settlement conference. All three of 

these questions were not applicable to the subset of those individuals who did not engage 

in discovery or have an in-person settlement conference with the judge during their most 

recent case. 
84

The survey results suggest that the agency might reconsider how it handles information 

exchange and discovery in Mandatory Settlement Part. Of those that responded to the 

Settlement Part survey, about 52 percent believe the timing of information exchange in 

advance of the in-person conference was “just right.” When asked the more general 

question about the timing of discovery during the process, 41 percent of all survey 

respondents felt that discovery occurred at “just the right time,” whereas about 29 percent 

of respondents felt that discovery occurred either earlier or later than it should have been, 

and about 30 percent of respondents did not believe the question was applicable to their 

experience. The majority of respondents (68 percent) also believe the judge should have 

discretion in suspending discovery, compared to only 9 percent who believe the judge 

should not have discretion in suspending discovery. For the cross-tabulations and detailed 

responses relevant to the MSP survey, see

Table C-30. MSP: Opinion on Timing of Exchange of Information in Advance of 

In-Person Settlement Conference. 

Table C-31. MSP: Opinion on Timing of Information Exchange (Discovery) 

During In-Person Settlement Conference. 

Table C-32. MSP: Opinion on Judge’s Use of Discretion to Suspend Discovery 

During Settlement Process.

For Conventional survey, the questions are phrased to match the participants’ experience 

with the program. The first corresponding question for Conventional reads: In your 

opinion, does information exchange in advance of trial begin...? Given the differences 

between MSP and Conventional Proceedings, as well as differences in the survey 

questions for participants, we do not think there is a basis for meaningful comparison.

However, we do provide the relevant cross tabulations for Conventional cases. See:

Table C-33. CP: Opinion on Begin Time for Exchange of Information in Advance 

of Any Trial

Table C-34. CP: Opinion on End Time of Information Exchange in Advance of 

Trial

Participants’ Preference for Different Adjudicatory Processes

MSP Participants’ Preference of Trial over MSP

Participants may prefer a trial on the merits over Mandatory Settlement whether or not 

they believe MSP is more efficient than a trial. They may also prefer a trial even if they 

were satisfied with the fairness of MSP processes and/or satisfied with MSP outcomes. 

We know from our interviews that some OSHRC internal stakeholders believe that MSP 

is not always the best course of action. Two questions in our survey provide an indicator 

of participants’ preferences for MSP over a trial. First, we asked participants the question 

directly: Would you have preferred a trial on the merits? In a separate question we asked 

participants if they believe their case probably would not have settled without the help of 

the judge. While the first question goes to the heart of participants’ preference for one 
85

type of adjudicatory process over the other, the latter question may be a reason for the 

preference. 

More respondents (48 percent) would not have preferred a trial than would have (18 

percent), while about 34 percent did not express a preference one way or the other. This 

result implies most MSP participants agree with the assignment of their case to 

Mandatory Settlement. On the second question, overall, 53 percent of survey respondents 

agreed or strongly agreed that their case probably would not have settled without the help 

of a judge, compared with 18 percent that believed the case probably would have settled 

without the help of the judge. About 29 percent of respondents did not express any 

opinion on the second question. For the cross-tabulation and detailed responses relevant 

to the MSP survey, see:

Table C-35. MSP: Preference for Trial Over Mandatory Settlement Part

Table C-36. MSP: Opinion on Probability of Settlement Without Help of Judge

Conventional Proceedings participants share a similar but less convincing preference for 

official settlement procedures.14 Responses for this survey indicate that more respondents 

(33 percent) would have preferred engaging in settlement processes before a settlement 

judge, than would not have (24 percent), while about 44 percent did not express a 

preference one way or the other. For cross-tabulation and detailed responses relevant to 

the Conventional Proceedings survey, see:

Table C-37. CP: Preference for Conventional Proceedings over Mandatory 

Settlement

Summary of Findings and Conclusions

Generally, MSP compares favorably to Conventional Proceedings in participants 

perceptions. Several key findings emerge from the two surveys:

• By slight majorities, recent participants of both Mandatory Settlement Part and 

Conventional Proceedings are more satisfied than dissatisfied with the efficiency 

of OSHRC programs. Moreover, where some dissatisfaction was expressed, 

complaints are more directly related to the level of cooperation from OSHA rather 

than OSHRC participants in the case. If there is room for improvement, it may be 

in scheduling; about 49 percent of MSP survey respondents believe the 

scheduling of motions, hearings, and other matters was prompt; however, about 

31 percent do not. In contrast, participants in Conventional Proceedings appear to 

be generally more satisfied with the prompt scheduling of conferences, motions, 

and other matters; a total of 88 percent of survey participants either agreed or 

strongly agreed that the scheduling of conferences and other matters was prompt.

																																																												 14 In the survey for participants of recent Conventional Proceeding, we did not include 

the question: Do you think the case would have settled without the help of a Judge?
86

• Participants in both OSHRC programs give the agency high marks for procedural 

justice. With majorities ranging between 70 percent and 92 percent respondents 

report satisfaction with the fairness of OSHRC processes, satisfaction with the 

respect with which they were treated, and the level of control they had over the 

process. Substantial majorities in both groups also reported that they were able to 

participate in their case as fully as they needed (MSP= 82 percent; Conventional 

=94 percent).

• Participants in both OSHRC programs give the agency high marks for clarity of 

rule. About 84 percent of MSP survey respondents agree or strongly agree that 

OSHRC’s rules of procedure are easy to understand, compared to 79 percent that 

express similar levels of agreement in the Conventional Proceedings survey.

• Distributive justice indicators also suggest high marks for the agency for both 

survey groups. A majority of MSP survey respondents reported that they were 

either very satisfied or satisfied (68 percent) with the overall outcome of their 

recent experience with the Mandatory Settlement Part than were very dissatisfied 

or dissatisfied (16 percent). Comparable high ratings, but fewer negative 

responses, are indicated by recent participants of Conventional Proceedings: A 

total of 79 percent of survey respondents were either satisfied or very satisfied 

with the overall outcome of the case compared to only 3 percent were either 

dissatisfied or very dissatisfied. This difference is likely a function in the amount 

in controversy and the fact that Settlement Part cases are higher stakes cases.

• Participants in both OSHRC programs report mixed opinions on the timing of the 

information exchange in their respective programs. On the general question about 

the timing of discovery during the process, 41 percent of all MSP survey 

respondents felt that discovery occurred at “just the right time,” whereas about 29

percent of respondents felt that discovery occurred either earlier or later than it 

should have been. In comparison, 74 percent of Conventional survey respondents

felt that information exchange in advance of any trial began at just the right time. 

This difference suggests that the agency might want to examine the timing of 

information exchange in Settlement Part.

Participants generally accept efforts by judges to help them settle cases. Recent MSP 

participants are more likely to prefer official settlement processes (48 percent), than a 

trial on the merits (18 percent). This result implies most MSP participants agree with the 

assignment of their case to Mandatory Settlement Part. Interestingly, more Conventional 

participants also prefer official settlement proceedings before a settlement judge than trial 

on the merits (33 percent compared to 24 percent). 
87

Table C-1. MSP: Opinion on Whether Case Should Have Resolved Sooner

Do you think your case should have 

resolved sooner than it did?

No Yes Total

Role in most 

recent Settlement 

Part case

Rep. of Employer- non 

attorney, Rep of Employerattorney

26 18 43

60.47% 41.86% 100.00%

Solicitor for DOL 10 7 17

58.82% 41.18% 100.00%

Authorized Employee 

Representative (Union), 

Attorney for Authorized 

Employee Representative

6 5 11

54.55% 45.45% 100.00%

Chi-Square(4) 

1.91

Total

42 30 71

p-value= 0.75 59.15% 42.25% 100.00%

Table C-2. MSP: Satisfaction with Time to Resolution

Are you satisfied were you with the length of time it 

took to resolve the case?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Settlement 

Part case

Employer 

Representative (attorney 

and non-attorney)

19 18 7 44

43.18% 40.91% 15.91% 100.00%

Solicitor for DOL 8 7 4 19

42.11% 36.84% 21.05% 100.00%

Employee 

Representative (attorney 

and Union)

4 2 3 9

44.44% 22.22% 33.33% 100.00%

Chi-Square(4)

1.94

Total

31 27 14 72

p-value=0.75 43.06% 37.50% 19.44% 100.00%
88

Table C-3. MSP: Opinion Comparing Time to Resolution for MSP to Trial on Merits

I think this case would have required more time if a 

trial on the merits was held.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Settlement 

Part case

Rep. of Employer- non 

attorney, Rep of 

Employer- attorney

24 10 11 45

53.33% 22.22% 24.44% 100.00%

Solicitor for DOL 10 4 5 19

52.63% 21.05% 26.32% 100.00%

Authorized Employee 

Representative (Union), 

Attorney for Authorized 

Employee 

Representative

4 4 2 10

40.00% 40.00% 20.00% 100.00%

Chi-Square (4) 

1.58

Total

38 18 18 74

p-value=0.81 51.35% 24.32% 24.32% 100.00%

Table C-4. MSP: Opinion on Promptness of Conferences, Motions, and Other Matters

I think the scheduling of conferences, motions, and 

other matters was prompt.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Settlement 

Part case 

Employer 

Representative (attorney 

and non-attorney)

24 9 11 45

53.33% 20.00% 26.67% 100.00%

Solicitor for DOL 9 4 6 19

47.37% 21.05% 31.58% 100.00%

Employee 

Representative (attorney 

and Union)

4 2 5 11

36.36% 18.18% 45.45% 100.00%

Chi-Square(4)

1.43

Total

37 15 22 74

p-value=0.84 49.33% 20.00% 30.67% 100.00%
89

Table C-5. CP: Opinion on Whether Case Should Have Resolved Sooner

Do you think your case should have resolved sooner 

than it did? 

No Yes Total

Role in most 

recent 

Conventional 

Case

Rep. of Employernon attorney, Rep 

of Employerattorney

26 26 46

56.52% 56.52% 100.00%

Solicitor for DOL

10 8 16

62.50% 50.00% 100.00%

Authorized 

Employee 

Representative 

(Union), Attorney 

for Authorized 

Employee 

Representative

0 2 2

0.00% 100.00% 100.00%

Chi-Square(2)

0.22 

Total

36 32 68

p-value=0.89 53.00% 47% 100.00%

Table C-6. CP: Opinion on Earlier Resolution with Help of Judge

The case would have settled earlier with the help of 

the judge.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative (attorney 

and non-attorney)

20 14 10 44

45.45% 31.82% 22.73% 100.00%

Solicitor for DOL 4 8 6 18

22.22% 44.44% 33.33% 100.00%

Employee 

Representative 

(attorney, Union, and 

other)

2 2 0 4

50.00% 50.00% 0.00% 100.00%

Chi-Square (4) 

4.27

Total

26 24 16 66

p-value=0.37 39.39% 36.36% 24.24% 100.00%
90

Table C-7. CP: Opinion on Promptness of Conferences, Motions, and Other Matters.

I think the scheduling of conferences and other 

matters was prompt.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

38 6 2 46

82.61% 13.04% 4.35% 100.00%

Solicitor for DOL

16 0 0 16

100.00% 0.00% 0.00% 100.00%

Employee 

Representative 

(attorney, Union, and 

other)

4 0 0 4

100.00% 0.00% 0.00% 100.00%

ChiSquare(4)3.96

Total

58 6 2 66

p-value=0.41 87.88% 9.09% 3.03% 100.00%
91

Table C-8. MSP: Point of Case Resolution

At what point was your case resolved?

Prior to a 

settlement 

conference

After the 

conclusion 

of a 

settlement 

conference 

but before 

a trial was 

scheduled

After the 

conclusion 

of the 

settlement 

conference, 

after a trial 

was 

scheduled, 

but before 

the start of 

a trial.

During 

the 

course 

of a 

trial on 

the 

merits.

After a 

trial on 

the 

merits.

Total

Role in most 

recent 

Settlement 

Part case

Employer 

Representative 

(attorney and 

non-attorney)

11 19 13 0 0 43

25.58% 44.19% 30.23% 0.00% 0.00% 100.00%

Solicitor for 

DOL

2 8 8 0 0 18

11.11% 44.44% 44.44% 0.00% 0.00% 100.00%

Employee 

Representative 

(attorney and 

Union)

2 2 6 0 1 11

18.18% 18.18% 54.55% 0.00% 9.09% 100.00%

ChiSquare(8) 

10.13

Total

15 29 27 0 1 72

p-value=0.26 20.83% 40.28% 37.50% 0.00% 1.39% 100.00%
92

Table C-9. CP: Point of Case Resolution

At what point was your case resolved? 

Before a 

trial on 

the merits 

was 

scheduled

After a 

trial on 

the merits 

was 

scheduled, 

but before 

the trial 

began

During 

the 

course of 

trial on 

the merits

After a 

trial on 

the merits

Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

28 18 0 0 46

60.87% 39.13% 0.00% 0.00% 100.00%

Solicitor for DOL 6 4 0 6 16

37.50% 25.00% 0.00% 37.50% 100.00%

Employee 

Representative 

(attorney, Union, and 

other)

2 2 0 0 4

50.00% 50.00% 0.00% 0.00% 100.00%

ChiSquare(6)20.82 

Total

36 24 0 6 66

p-value=0.00 54.55% 36.36% 0.00% 9.09% 100.00%
93

Table C-10. MSP: Satisfaction with Fairness of the Process

How satisfied were you with the fairness of the 

process?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most

recent 

Settlement 

Part case 

Employer 

Representative 

(attorney and nonattorney)

30 7 8 45

66.67% 15.56% 17.78% 100.00%

Solicitor for DOL

18 1 0 19

94.74% 5.26% 0.00% 100.00%

Employee 

Representative 

(attorney and Union)

7 3 1 11

63.64% 27.27% 9.09% 100.00%

ChiSquare(4) 

7.57

Total

55 11 9 75

p-value=0.11 73.33% 14.67% 12.00% 100.00%

Table C-11. MSP: Satisfaction with Level of Respect

How satisfied with the level of respect with which 

you were treated during the Settlement Part 

processes?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Settlement 

Part case 

Representative of 

Employer (attorney 

and non-attorney)

43 1 1 45

95.56% 2.22% 2.22% 100.00%

Solicitor for DOL

18 1 0 19

94.74% 5.26% 0.00% 100.00%

Representative of 

Employee (attorney 

and union)

8 2 1 11

72.73% 18.18% 9.09% 100.00%

Chi-Square 

(4)6.99

Total

69 4 2 75

p-value=0.14 92.00% 5.33% 2.67% 100.00%
94

Table C-12. MSP: Satisfaction with Level of Control Over Process

How satisfied were you with the level of control you 

had over the process?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Settlement 

Part case

Employer 

Representative (attorney 

and non-attorney)

30 5 9 44

68.18% 11.36% 20.45% 100.00%

Solicitor for DOL 17 2 0 19

89.47% 10.53% 0.00% 100.00%

Employee 

Representative (attorney 

and Union)

7 2 2 11

63.64% 18.18% 18.18% 100.00%

ChiSquare(4)5.10

Total

54 9 11 74

p-value=0.28 72.97% 12.16% 14.86% 100.00%

Table C-13. MSP: Opinion on Appropriateness of Amount of Information Exchanged

The amount of information exchanged in the case 

was appropriate given the facts/ nature of the case.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Settlement 

Part case

Employer Representative 

(attorney and nonattorney)

30 8 6 44

68.18% 18.18% 13.64% 100.00%

Solicitor for DOL 15 3 1 19

78.95% 15.79% 5.26% 100.00%

Employee Representative 

(attorney and Union)

7 3 1 11

63.64% 27.27% 9.09% 100.00%

ChiSquare(4)1.71

Total

52 14 8 74

p-value=0.79 70.27% 18.92% 10.81% 100.00%
95

Table C-14. MSP: Ability to Participate Fully as Needed

I was able to participate in the process fully as 

needed.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Settlement 

Part case

Employer 

Representative (attorney 

and non-attorney)

34 8 2 44

77.27% 18.18% 4.55% 100.00%

Solicitor for DOL 18 1 0 19

94.74% 5.26% 0.00% 100.00%

Employee 

Representative (attorney 

and Union)

9 2 0 11

81.82% 18.18% 0.00% 100.00%

ChiSquare(4)3.33

Total

61 11 2 74

p-value=0.50 82.43% 14.86% 2.70% 100.00%

Table C-15. CP: Satisfaction with Fairness of the Process

How satisfied were you with the fairness of the 

process?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

34 6 4 44

77.27% 13.64% 9.09% 100.00%

Solicitor for DOL

18 0 0 18

100.00% 0.00% 0.00% 100.00%

Employee 

Representative 

(attorney, Union, and 

other)

2 2 0 4

50.00% 50.00% 0.00% 100.00%

ChiSquare(4)10.33

Total

54 8 4 66

p-value=0.04 81.82% 12.12% 6.06% 100.00%
96

Table C-16. CP: Satisfaction with Level of Respect

How satisfied with the level of respect with which you 

were treated during the Conventional processes?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

40 2 2 44

90.91% 4.55% 4.55% 100.00%

Solicitor for DOL

18 0 0 18

100.00% 0.00% 0.00% 100.00%

Employee 

Representative 

(attorney, Union, 

and other)

2 0 2 4

50.00% 0.00% 50.00% 100.00%

Chi 

Square(4)15.90

Total

60 2 4 66

p-value=0.00 90.91% 3.03% 6.06% 100.00%

Table C-17. CP: Satisfaction with Level of Control Over Process

How satisfied were you with the level of control you 

had over the process?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

32 6 2 40

80.00% 15.00% 5.00% 100.00%

Solicitor for DOL

16 2 0 18

88.89% 11.11% 0.00% 100.00%

Employee 

Representative 

(attorney, Union, 

and other)

0 4 0 4

0.00% 100.00% 0.00% 100.00%

Chi 

Square(4)19.00

Total

48 12 2 62

p-value=0.00 77.42% 19.35% 3.23% 100.00%
97

Table C-18. CP: Ability to Adequately Present and Defend Position

I was able to adequately present and defend my 

position.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Conventional 

Case

Employer Representative 

(attorney and nonattorney)

44 2 0 46

95.65% 4.35% 0.00% 100.00%

Solicitor for DOL 18 0 0 18

100.00% 0.00% 0.00% 100.00%

Employee Representative 

(attorney, Union, and 

other)

2 0 2 4

50.00% 0.00% 50.00% 100.00%

Chi 

Square(4)33.86

Total

64 2 2 68

p-value=0.00 94.12% 2.94% 2.94% 100.00%

Table C-19. CP: Opinion on Appropriateness of Amount of Information Exchanged

The amount of information exchanged in the case was 

appropriate given the facts/ nature of the case.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

40 2 4 46

86.96% 4.35% 8.70% 100.00%

Solicitor for DOL

18 0 0 18

100.00% 0.00% 0.00% 100.00%

Employee 

Representative 

(attorney, Union, and 

other)

4 0 0 4

100.00% 0.00% 0.00% 100.00%

Chi 

Square(4)3.15

Total

62 2 4 68

p-value=0.53 91.18% 2.94% 5.88% 100.00%
98

Table C-20. MSP: Rules of Procedure are Easy to Understand

OSHRC's rules of procedure are easy to 

understand.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Settlement 

Part case 

Employer 

Representative 

(attorney and nonattorney)

36 4 5 45

80.00% 8.89% 11.11% 100.00%

Solicitor for DOL

18 1 0 19

94.74% 5.26% 0.00% 100.00%

Employee 

Representative 

(attorney and Union)

9 1 1 11

81.82% 9.09% 9.09% 100.00%

Chi 

Square(4)2.67

Total

63 6 6 75

p-value=0.61 84.00% 8.00% 8.00% 100.00%
99

Table C-21. CP: Rules of Procedure are Easy to Understand

OSHRC's rules of procedure are easy to understand.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Conventional 

Case

Employer Representative 

(attorney and nonattorney)

34 8 2 44

77.27% 18.18% 4.55% 100.00%

Solicitor for DOL 18 0 0 18

100.00% 0.00% 0.00% 100.00%

Employee Representative 

(attorney, Union, and 

other)

0 2 2 4

0.00% 50.00% 50.00% 100.00%

Chi Square(4) 

24.39

Total

52 10 4 66

p-value=0.00 78.79% 15.15% 6.06% 100.00%

Table C-22. MSP: Number of Times Met for Settlement Conference In-Person

Did you have a settlement conference on your recent case 

where you appeared in person before a settlement judge?

No, I did 

not have 

settlement 

conference 

where I 

appeared 

in person

I 

appeared 

1 time in 

person 

with the 

settlement 

judge for 

a 

settlement 

conference

I 

appeared 

2-5 times 

in person 

with the 

settlement 

judge for 

a 

settlement 

conference

I 

appeared 

more than 

5 times 

with the 

settlement 

judge for 

a 

settlement 

conference Total

Role in most 

recent 

Settlement 

Part case

Employer 

Representative 

(attorney and nonattorney)

15 18 9 2 44

34.09% 40.91% 20.45% 4.55% 100.00%

Solicitor for DOL 3 9 6 0 18

16.67% 50.00% 33.33% 0.00% 100.00%

Employee 

Representative 

(attorney and Union)

4 6 0 1 11

36.36% 54.55% 0.00% 9.09% 100.00%

Chi 

Square(4)7.05

Total

22 33 15 3 73

p-value=0.32 30.14% 45.21% 20.55% 4.11% 100.00%
100

Table C-23. MSP: Number of Times Communication Exchanged During Settlement Process

About how many times did you communicate with the 

judge during the settlement process? 

never only one 2-5 times

more 

than 5 

times Total

Role in most 

recent 

Settlement 

Part case 

Employer Representative 

(attorney and nonattorney)

2 13 23 5 43

4.65% 30.23% 53.49% 11.63% 100.00%

Solicitor for DOL 0 3 14 0 17

0.00% 17.65% 82.35% 0.00% 100.00%

Employee Representative 

(attorney and Union)

3 5 2 1 11

27.27% 45.45% 18.18% 9.09% 100.00%

Chi 

Square(8)18.55

Total

5 21 39 6 71

p-value=0.01 7.04% 29.58% 54.93% 8.45% 100.00%

Table C-24. CP: Number of Times Communication Exchanged with Judge During Litigation ProcessOrally

About how many times did you communicate orally with the 

Judge during the litigation process before trial?

Never Only 1 5-Feb more 

than 5 Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

12 2 28 4 46

26.09% 4.35% 60.87% 8.70% 100.00%

Solicitor for DOL 0 0 14 2 16

0.00% 0.00% 87.50% 12.50% 100.00%

Employee 

Representative 

(attorney, Union, 

and other)

2 0 2 0 4

50.00% 0.00% 50.00% 0.00% 100.00%

Chi 

Square(6)8.36

Total

14 2 44 6 66

p-value=0.21 21.21% 3.03% 66.67% 9.09% 100.00%
101

Table C-25. CP: Number of Times Communication Exchanged with Judge During Litigation ProcessWritten Form

About how many times did you communicate in written form 

with the Judge during the litigation process before trial?

never only one 2-5 times more than 

5 times Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

10 12 18 6 46

21.74% 26.09% 39.13% 13.04% 100.00%

Solicitor for DOL 2 0 10 6 18

11.11% 0.00% 55.56% 33.33% 100.00%

Employee 

Representative 

(attorney, Union, and 

other)

2 2 0 0 4

50.00% 50.00% 0.00% 0.00% 100.00%

Chi Square(6) 

14.92

Total

14 14 28 12 68

p-value=0.02 20.59% 20.59% 41.18% 17.65% 100.00%

Table C-26. MSP: Satisfaction with Overall Outcome of the Case

How satisfied were you with the overall outcome of 

the case?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent Settlement 

Part case

Employer 

Representative 

(attorney and nonattorney)

32 5 7 44

72.73% 11.36% 15.91% 100.00%

Solicitor for DOL 12 3 4 19

63.16% 15.79% 21.05% 100.00%

Employee 

Representative 

(attorney and Union)

6 3 1 10

60.00% 30.00% 10.00% 100.00%

Chi Square(4)2.84

Total

50 11 12 73

p-value=0.59 68.49% 15.07% 16.44% 100.00%
102

Table C-27. CP Satisfaction with Overall Outcome of the Case

How satisfied were you with the overall outcome of 

the case?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative (attorney 

and non-attorney)

34 10 0 44

77.27% 22.73% 0.00% 100.00%

Solicitor for DOL 16 0 2 18

88.89% 0.00% 11.11% 100.00%

Employee 

Representative 

(attorney, Union, and 

other)

2 2 0 4

50.00% 50.00% 0.00% 100.00%

Chi Square(4) 

12.00

Total

52 12 2 66

p-value=0.02 78.79% 18.18% 3.03% 100.00%

Table C-28. MSP: Satisfaction with Process Overall

How satisfied were you with the process overall?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Settlement 

Part case

Employer 

Representative (attorney 

and non-attorney)

33 4 7 44

75.00% 9.09% 15.91% 100.00%

Solicitor for DOL 14 3 2 19

73.68% 15.79% 10.53% 100.00%

Employee 

Representative (attorney 

and Union)

8 3 0 11

72.73% 27.27% 0.00% 100.00%

Chi 

Square(4)12.00

Total

55 10 9 74

p-value=0.02 74.32% 13.51% 12.16% 100.00%
103

Table C-29. CP: Satisfaction with Process Overall

How satisfied were you with the process overall?

Very 

Satisfied, 

Satisfied

Neutral

Dissatisfied, 

Very 

Dissatisfied Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and nonattorney)

34 6 2 42

80.95% 14.29% 4.76% 100.00%

Solicitor for DOL 18 0 0 18

100.00% 0.00% 0.00% 100.00%

Employee 

Representative 

(attorney, Union, and 

other)

2 2 0 4

50.00% 50.00% 0.00% 100.00%

Chi Square(4) 

9.04

Total

54 8 2 64

p-value=0.06 84.38% 12.50% 3.13% 100.00%

Table C-30. MSP: Opinion on Timing of Information Exchange in Advance of In-Person 

Settlement Conference

In your opinion, does the information exchange in advance of any 

in-person settlement conference begin:

too 

early

a little 

early

just 

right

a little 

late

too 

late

not 

applicable 

to my 

experience Total

Role in 

most 

recent 

Settlement 

Part case

Employer 

Representative 

(attorney and 

non-attorney)

1 1 22 9 2 7 42

2.38% 2.38% 52.38% 21.43% 4.76% 16.67% 100.00%

Solicitor for 

DOL

1 2 11 3 0 1 18

5.56% 11.11% 61.11% 16.67% 0.00% 5.56% 100.00%

Employee 

Representative 

(attorney and 

Union)

0 0 4 4 0 3 11

0.00% 0.00% 36.36% 36.36% 0.00% 27.27% 100.00%

Chi 

Square(10) 

11.96

Total

2 3 37 16 2 11 71

pvalue=0.29 2.82% 4.23% 52.11% 22.54% 2.82% 15.49% 100.00%
104

Table C-31. MSP: Opinion on Timing of Information Exchange (Discovery) During In-Person 

Settlement Conference

In your opinion, does information exchange (discovery) during inperson settlement conference begin:

too 

early

a little 

early

just 

right

a little 

late

too 

late

not 

applicable 

to my 

experience Total

Role in most 

recent 

Settlement 

Part case

Employer 

Representative 

(attorney and 

non-attorney)

1 1 16 7 2 16 43

2.33% 2.33% 37.21% 16.28% 4.65% 37.21% 100.00%

Solicitor for 

DOL

1 0 11 5 1 1 19

5.26% 0.00% 57.89% 26.32% 5.26% 5.26% 100.00%

Employee 

Representative 

(attorney and 

Union)

0 0 3 3 0 5 11

0.00% 0.00% 27.27% 27.27% 0.00% 45.45% 100.00%

Chi 

Square(4)10.26

Total

2 1 30 15 3 22 73

p-value=0.42 2.74% 1.37% 41.10% 20.55% 4.11% 30.14% 100.00%
105

Table C-32. MSP: Opinion on Judge’s Use of Discretion to Suspend Discovery During Settlement 

Process.

The judge should have discretion to suspend discovery 

during the settlement process.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent Settlement 

Part case

Employer 

Representative 

(attorney and nonattorney)

33 7 4 44

75.00% 15.91% 9.09% 100.00%

Solicitor for DOL 13 3 3 19

68.42% 15.79% 15.79% 100.00%

Employee 

Representative 

(attorney and Union)

4 7 0 11

36.36% 63.64% 0.00% 100.00%

Chi Square(4)13.10

Total

50 17 7 74

p-value=0.01 67.57% 22.97% 9.46% 100.00%

Table C-33. CP: Opinion on Begin Time for Information Exchange in Advance of Any Trial

In your opinion, does information exchange (discovery) in advance 

of any trial begin:

too 

early

a little 

early

just 

right

a 

little 

late

too late

not 

applicable 

to my 

experience Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and 

non-attorney)

0 2 36 4 0 4 46

0.00% 4.35% 78.26% 8.70% 0.00% 8.70% 100.00%

Solicitor for 

DOL

0 2 12 0 2 2 18

0.00% 11.11% 66.67% 0.00% 11.11% 11.11% 100.00%

Employee 

Representative 

(attorney, 

Union, and 

other)

0 0 2 0 0 2 4

0.00% 0.00% 50.00% 0.00% 0.00% 50.00% 100.00%

Chi 

Square(10)10.3

Total

0 4 50 4 2 8 68

p-value=0.41 0.00% 5.88% 73.53% 5.88% 2.94% 11.76% 100.00%
106

Table C-34. CP: Opinion on End Time for Information Exchange in Advance of Any Trial

In your opinion, does the information exchange (discovery) in 

advance of any trial end:

too 

early

a little 

early

just 

right

a little 

late too late

not 

applicable 

to my 

experience Total

Role in most 

recent 

Conventional 

Case

Employer 

Representative 

(attorney and 

non-attorney)

0 8 28 4 2 4 46

0.00% 17.39% 60.87% 8.70% 4.35% 8.70% 100.00%

Solicitor for 

DOL

0 2 8 4 2 2 18

0.00% 11.11% 44.44% 22.22% 11.11% 11.11% 100.00%

Employee 

Representative 

(attorney, 

Union, and 

other)

0 2 0 0 0 2 4

0.00% 50.00% 0.00% 0.00% 0.00% 50.00% 100.00%

Chi 

Square(10)9.23

Total

0 12 36 8 4 8 68

p-value=0.51

0.00% 17.65% 52.94% 11.76% 5.88% 11.76% 100.00%
107

Table C-35. MSP: Preference for Trial Over Mandatory Settlement Part

I would have preferred a trial over a mandatory 

settlement conference.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Settlement 

Part case

Employer Representative 

(attorney and nonattorney)

6 16 22 44

13.64% 36.36% 50.00% 100.00%

Solicitor for DOL 5 4 10 19

26.32% 21.05% 52.63% 100.00%

Employee Representative 

(attorney and Union)

2 5 3 10

20.00% 50.00% 30.00% 100.00%

Chi 

Square(4)2.32

Total

13 25 35 73

p-value=.23 17.81% 34.25% 47.95% 100.00%

Table C-36. MSP: Opinion on Probability of Settlement Without Help of Judge

The case probably would not have settled without 

the help of the judge.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Settlement Part 

case

Employer 

Representative 

(attorney and nonattorney)

21 13 9 43

48.84% 30.23% 20.93% 100.00%

Solicitor for DOL 11 6 2 19

57.89% 31.58% 10.53% 100.00%

Employee 

Representative 

(attorney and Union)

7 2 2 11

63.64% 18.18% 18.18% 100.00%

Chi 

Square(4)2.04

Total

39 21 13 73

p-value=0.72 53.42% 28.77% 17.81% 100.00%
108

Table C-37. CP: Preference for Conventional Proceedings over Mandatory Settlement

I would have preferred engaging in formal 

settlement processes before a settlement judge.

Strongly 

Agree, 

Agree

Neither 

Agree nor 

Disagree

Disagree, 

Strongly 

Disagree Total

Role in most 

recent 

Conventional 

Case

Employer Representative 

(attorney and nonattorney)

14 18 14 46

30.43% 39.13% 30.43% 100.00%

Solicitor for DOL 6 10 2 18

33.33% 55.56% 11.11% 100.00%

Employee Representative 

(attorney, Union, and 

other)

2 2 0 4

50.00% 50.00% 0.00% 100.00%

Chi 

Square(4)4.32

Total

22 30 16 68

p-value=0.36 32.35% 44.12% 23.53% 100.00%
109

Appendix	C-1:	Technical	Appendix	for	Survey	Analysis	and	Cross-Tabulations

Chi-Square

Pearson’s Chi-square test for independence for a correlation table (also called a 

contingency table) tests the null hypothesis that the row classification factor and the 

column classification factor are independent. 

The Chi-Square compares the observed frequencies to the expected frequencies for 

categories. The chi-square test statistic is basically the sum of the squares of the 

differences between the observed and expected frequencies, with each squared difference 

divided by the corresponding expected frequency

The Chi-Square value for the cell is computed as: 

(Observed Value – Expected Value)

2 

/ (Expected Value) 

When the probability is .05 or less, we reject the null hypothesis of no difference and 

conclude that there must be a relationship between the variables.

Merged categories

The decision to merge categories has a basis in the literature but also motivated by 

statistics. Before merging categories some tables had zero responses in cells. When no 

observations appear in a particular row category (row total is 0) or a particular column 

category (column total is 0), the chi-square statistic cannot be calculated. To proceed, the 

category must be either eliminated completely, or combined with another category.

Also, as with most statistical tests, the power of the chi-square test increases with a larger 

number of observations. If there are too few observations, it may be impossible to reject 

the null hypothesis even if it is false.
110

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