Environmental Dispute Resolution Program
Formally initiated in 1996, the Department's environmental dispute resolution program has met with slow but continual success. This short article provides some tips and insights about alternative dispute resolution with mediation being the main focus.
Mediation is a consensus based process in which a mediator helps the parties reach a mutually acceptable decision. The mediator does not make any decision about the case. The results of the structured negotiation are up to the parties. The parties craft the result through their negotiations, with the assistance of a mediator.
Mediation is typically engaged when a dispute or contention point surfaces. Negotiations may or may not have already reached an impasse. Sometimes mediation is helpful in anticipation of negotiations or meetings to begin to clarify and sort issues and perhaps begin to shuttle information between camps.
In environmental disputes tensions can arise early in the permit or enforcement review process, thus early intervention is highly desirable. A mediated or assisted negotiation can provide benefits to all parties even if the negotiations ultimately 'fail' and other forms of dispute resolution, hearing or court review, become necessary.
Mediation has many places in environmental matters. These can include:
* enforcement of environmental programs;
* negotiation of contentious permit conditions;
* public participation efforts;
* negotiation of consent agreements;
* contract disputes; and
* regulatory rule development.
Mediation is a good choice and may be the most successful when one or more of the following exist:
* it is highly desirable to maintain existing relationships between the parties to continue in a professional or cooperative atmosphere;
* coming to an agreement is better than the alternatives available;
* transactional costs in terms of personnel, fiscal resources and timeliness may be at a premium;
* the parties possess substantive knowledge or ability to understand substantive issues;
* the parties wish to maintain control over the outcome of the process and the nature of the dispute does not interfere with government's preference to prosecute for deterrent value, explore novel issues of fact or law or make a policy statement.
To date, many of the mediated settlements take place in the context of environmental enforcement. These disputes often readily lend themselves to an assisted negotiation because they may involve limited parties, and may need negotiation of remedial activities and the amount of a payable penalty.
Negotiated permit conditions to a DEC permit often involve engineering and scientific issues. These are typically negotiated by staff who rely upon their program experts to ensure the functionality and enforceability of the conditions. For conditions such as operating hours, truck routes, dust and noise control concerns, the negotiations are sometimes more lengthy and involved due to the nature of these disputes. Assisted negotiations through mediation can help bridge the gap.
Contract disputes where a contractor is alleged to fail to perform to the terms and conditions of a contract or disputed transactional costs, are another area where mediation can help sort out the facts and focus on a remedy and a resolution.
Office of Hearings and Mediation Services (OHMS) personnel, who report directly to the Commissioner, are not part of Department Staff. They are trained to provide mediation services, in addition to serving as administrative law judges. The combination of familiarity with a wide range of DEC programs, and training as administrative law judges and mediators, make them logical choices for dispute resolution.
Other units of DEC have also helped facilitate a better understanding of environmental issues. For example, the Division of Environmental Permits has played key roles in assisting parties toward understanding and agreeing upon issues and permit conditions. The Citizen Participation Specialists also complement the facilitation of information critical to dispute resolution. Collectively, these units perform a vital role in serving the regulated and public community.
In summary, mediation shows promise and we expect to increase this assistance in whatever negotiations the permitting or enforcement arm undertake. We expect more interest from the regulated community to use mediation as well.
This web page's content was last updated June 1, 2009. For further information, contact Louis Alexander, Assistant Commissioner, Hearings and Mediation Services at 518/402-8537 or James McClymonds, Chief Administrative Law Judge, at 518/402-9003.
