Guide To Mediation
Persuade your neighbors to compromise whenever you can.
Point out to them that the nominal winner is often a real loser
- in fees, expenses and waste of time. --- Abraham Lincoln
Benefits of mediation and other forms of alternative dispute resolution (ADR)
- Reduces litigation costs
- Avoids delays occasioned by litigation
- Recognizes the need to cooperate and communicate
- Shifts the focus of decision-making from others to you
This guide will help answer your questions about ADR services provided by DEC's Office of Hearings and Mediation Services. It centers on the use of mediation as the primary tool, as well as several others, to help you and other disputants resolve environmental disputes. This guide does not distinguish between disputes involving enforcement or permit matters; rather, its purpose is to answer some common questions about the use of mediation in environmental matters that commonly appear before the DEC.
What is ADR?
ADR is a collection of nonlitigious problem solving processes, which include mediation, arbitration, neutral evaluation, and others.
What are some examples of ADR?
Mediation is an assisted negotiation. It involves using a neutral party to help disputants negotiate a mutually agreeable settlement. The mediator does not render a decision, but assists the parties in reaching their own decision. Mediation is consensual. Consensual means the parties must mutually agree to mediation.
Arbitration is a binding, decision-making process based upon documentary evidence, testimony, and argument.
Neutral evaluation involves evaluating the merits of a party's case. Similar processes include settlement judging and fact-finding. The main thrust is to provide information to the disputants to let them know how their facts and evidence may be viewed.
Mediation is the primary tool discussed in this booklet.
Why should I consent to mediation?
Mediation allows you to negotiate an agreement rather than have an authority decide a party's interest. It empowers disputants to decide issues based upon their interests and values without an authority deciding the issues for them.
What happens in mediation?
The mediator becomes the communication link between the parties-serving to assist the parties in reaching a mutually acceptable solution. The mediator will initially meet with you to discuss the mediation process. The mediator will seek to identify with the disputants the central issues that need to be understood, and seek to prioritize and focus on them. The mediator may meet with you privately to discern the underlying facts or issues surrounding the dispute. These private meetings are called caucuses. Caucuses are confidential. The mediator cannot reveal the information learned in the caucus unless released by you to do so. Caucuses allow the mediator to better understand obstacles to a negotiated settlement. Caucuses give you the opportunity to explain what you really want from the negotiation. The mediator may convene a number of meetings and caucuses throughout the negotiation. The mediator may create doubts about the validity of a position. The mediator may help create alternative agreements and understandings to help resolve the dispute.
Should agreements reached through mediation be in writing?
Yes. Written agreements state the specifics of what was agreed upon. Who-will-do- what-by-when is a typical arrangement included in the written mediated agreement. The written agreement is a contract.
Is the written settlement agreement binding?
Yes. A settlement reached through mediation or other ADR process, and set forth in an agreement or formal order, is binding. Whether it is an agreement, a formal order, order on consent, or a decision of DEC that relates to permitting or an enforcement action, you will be liable if you fail to abide by its terms. The settlement is enforceable through an administrative hearing or a court action.
How do I request mediation services?
The preferable way is to contact the DEC Regional Director, the Regional Attorney, Division Director or other individual in DEC with the authority to approve the use of mediation. Those individuals will contact the Chief Administrative Law Judge stating their consent to the use of mediation. Alternatively, you can also make the request directly to the Chief Administrative Law Judge. However, the Office of Hearings and Mediation Services will not act independently to begin a mediation without the mutual consent of Staff or other necessary parties.
In enforcement cases, the Regional Attorney is designated as the "gatekeeper." The gatekeeper evaluates the case and may consent to an ADR process. Since all ADRs must be consensual, the Regional Attorney's role as gatekeeper in enforcement cases is critical to ensure consistency with DEC policy.
How much does mediation cost?
A mediator from the Office of Hearing and Mediation Services is supplied without cost to the disputants. This is because the services of the mediator are treated the same as the services of an Administrative Law Judge, who would be available to conduct an administrative hearing without costs.
Can I select the mediator?
Yes. The roster of mediators includes all Administrative Law Judges. Consultation with the Chief Administrative Law Judge is advisable, since the ALJs have other mediations and case loads that may make them unavailable for your mediation.
Can I request mediation if I am in an administrative hearing?
Yes. Mindful that mediation must be consensual, parties to a permit or enforcement hearing may consent to mediation or some other informal mechanism to resolve the environmental conflict. The ALJ assigned to the case is your point of contact. The ALJ assigned may serve as mediator or another ALJ can be assigned. With the consent of all the parties, the ALJ may continue as the judge on the case.
What happens if mediation is unsuccessful?
People tend to evaluate negotiations in terms of success or failure. Sometimes mediation resolves part, but not all, of the dispute. At other times, unsuccessful mediation stimulates new thinking and better understanding of positions. This information is often used to reach a settlement outside of the mediation. An "unsuccessful" mediation can open communication lines between the parties that often bear fruit at a later time.
Are mediations public?
Mediations are treated as highly sensitive negotiations. When the mediation commences, all caucuses are private and confidential. Since all parties enter the negotiation in good faith, there should be no unauthorized public disclosures. Leaks in negotiations can destroy trust and stymie productive negotiations. Information to be released to the press must be approved by disputants unless the mediator unilaterally prevents the release of any information. However, mediations are public at the input or entry stage because, as in permit matters, there may be a number of individuals who wish to voice concerns about permit issuance and who intend to intervene before the DEC through their filing for party status. (See, Guide to Permit Hearings, available from the regional offices and this office.)
Are discussions in mediations confidential?
Yes. The general rule to be followed is that the mediation is a form of negotiation or settlement discussion. Although the question has yet to be addressed by the court, the Department has taken the position that the mediator's records are confidential and exempt from disclosure under FOIL, at least where the mediator is an administrative law judge acting in an adjudicatory capacity. Moreover, DEC administrative law judges take additional precautions to maintain the confidentiality of mediated proceedings. Unless otherwise discoverable or disclosable in an administrative hearing or court action, the information cannot be used or disclosed to the opposing party without permission.
Can I request your mediation services for matters that are not connected to a DEC action?
No. Mediations and other forms of ADR are used to resolve environmental disputes that involve a DEC permit, license, order, contract, or other matter pertaining to the authority and jurisdiction of DEC. Sometimes, however, instances arise where a dispute exists tangentially to a DEC action. For example, permits from DEC are required for a project but other governmental permits are the major focus of the dispute. Those cases are evaluated on a case-by-case basis by the referring DEC authority and the Chief Administrative Law Judge.
What other forms of ADR are provided?
As mentioned above, the Office of Hearings and Mediation Services provides other forms of ADR. For example, a project sponsor for a permit (an "Applicant") or a person charged with violations of the Environmental Conservation Law (a "Respondent") may seek assistance in negotiation from the ALJ. The Administrative Law Judges are not part of DEC staff and report directly to the Commissioner; thus, they have the unique ability of providing an impartial review of the matter. They have knowledge of DEC administrative operations and have expertise in many aspects of environmental law and technical issues. This is extremely valuable in helping the parties resolve a dispute. They also can be neutral evaluators in assessing facts. And they can give opinions about the strengths and weaknesses of a case. Any ALJ performing these roles would be precluded from holding the formal case, unless consent of the parties is given.
What ADRs have been completed to date?
A number of successful mediations have narrowed or resolved environmental disputes. These disputes have involved endangered species, wetlands, air quality, water quality and mining. Virtually any dispute can be mediated or treated by an ADR. However, not all environmental cases should be subjected to ADR. The factors used to select a case for ADR are discussed in the publication The Use of Alternative Dispute Resolution in DEC (PDF) (182 KB), revised September 25, 1997.
|Focuses on the parties' real interests||Focuses on litigation position|
|Requires the sharing of information early on as part of the problem-solving process||Information is exchanged as part of pre-hearing or hearing procedures|
|Decisionmaking is by the parties to the dispute||Decisionmaking is by a disinterested third party|
|Procedures and processes are designed by the parties||Procedures and processes established by a rule-making tribunal are followed|
|Concentrates on the informal gathering and presentation of facts||Concentrates on compliance with evidentiary precepts and rules|
|Requires parties to talk to each other||Parties talk to an Administrative Law Judge|