Co-mediation suggested as a way to save Washington State money

An article in the Seattle Times discusses a new approach to resolving public records disputes.

A recent increase in large payouts from public records disputes has some in Washington government researching new ways to avoid costly and drawn-out court battles.

One idea being considered by Attorney General Rob McKenna is a proposal put together by two well-known public records attorneys to “co-mediate.” While single-person mediation already exists and is used in some state cases, the idea of co-mediation allows for two mediators, both well-versed in public records laws – one who represents the requester and another to represent the agency or local government.

Greg Overstreet, an Olympia attorney specializing in media and disclosure law said that while co-mediation might not work in all cases, it could offer a better chance to get people to the table in the first place.

“The problem has been the difficulty of finding a single mediator who is trusted by both sides,” he said. “The other problem is finding a mediator who knows the public records act and the nuts and bolts of how the public records process works in real life.”

Gov. Chris Gregoire might be interested as well.

“With the high costs of these cases, certainly anything to get at that is intriguing,” said Cory Curtis, a spokesman for the governor.

Under state law, state agencies and local governments can face fines of up to $100 a day for failing to turn over records. But the biggest cost driver, Overstreet said, is attorney's fees.

Toby Nixon, president of the Washington Coalition for Open Government, said he's long been an advocate of alternative options to resolve public-records disputes.

"The key is to get access to the records, and if mediation allows that to happen and to reach a conclusion at a lower cost, so much the better."