Enforcement in New England
When/How to Use ADR
When should ADR be considered?
Any time negotiations are stuck, anticipated to become stuck, or otherwise not progressing in a constructive way from a party's standpoint, it is worth considering whether some form of ADR might help. Situations in which mediation has been found to be useful include:
- Where a party has a strong emotional investment in or reaction to the case which is inhibiting constructive settlement discussion;
- Where there is a question as to whether a party or negotiating attorney understands the nature of the claims, defenses, technical questions, or other relevant information;
- Where something just doesn't add up (the case seems like it should settle–if you were in your adversary's shoes, you can't imagine why you wouldn't settle–and yet the other side seems to be holding out for something different);
- Where there are difficult personalities involved;
- Where you suspect that opposing counsel is trying to work towards agreement but is having difficulty communicating with the client;
- Where you suspect that opposing counsel is not accurately conveying information to the client or is otherwise an obstacle to constructive settlement discussions;
- Where there appears to be unrealized potential for advancing negotiations through the development of non-monetary settlement components (pollution prevention measures, exceeding compliance goals, timing of commitments, recognition, etc.);
- Where a party believes that he/she/it is being treated unfairly;
- Where a party endlessly procrastinates or outright refuses to come to the table;
- Where a party does not appear to have a realistic view of the case;
- Where the number of parties is great and/or the issues so numerous or complex; and
- Where, despite everything--competent counsel, a good faith desire among all parties to reach settlement, no shortage of information, good communication–there remains a seemingly unbridgeable gap.
Arbitration versus Mediation
In arbitration, the parties turn over decision-making authority to the arbitrator who acts like a judge. Whether it is binding or non-binding, the outcome of the arbitration is the arbitrator’s decision. In mediation, the neutral acts in a facilitative rather than an evaluative capacity– facilitating, among other things, the parties' own evaluation of the merits of each other's positions. The mediator, by contrast to the arbitrator, does not offer his or her personal views on the substantive merits of any issue in dispute. In between mediation and arbitration are a host of hybrid processes involving both facilitative and evaluative components. Depending upon the situation, there are advantages and disadvantages to both ends of the spectrum.
Within EPA, there is a preference for mediation largely because it allows the parties to retain maximum control over the outcome of the negotiation. In addition, there are certain risks associated with more evaluative approaches that do not come into play in mediation. If, for example, the parties have competing interpretations of a matter in dispute, a third party evaluation may simply muddy the waters with yet another point of view. Worse yet, a neutral opinion may simply cause one party to dig in without being persuasive to the other party, thereby aggravating an impasse situation. Ideally, the parties will agree in advance what they will do with the neutral opinion once it is offered. Often, however, parties either neglect to or are simply unable to reach agreement on how they will use the evaluative input. In this event, rather than resolving the substantive dispute, the neutral opinion may trigger a flurry of accusations of bad faith based on the parties' differing expectations.
Notwithstanding these pitfalls, neutral evaluative feedback does sometimes help parties overcome impasse. An evaluative approach akin to non-binding arbitration may make sense in the following situations:
- Where efforts to reach settlement through a more facilitative approach have been exhausted and the only apparent obstacle to settlement is a genuine discrepancy in how the two sides value the case (this circumstance can be presumed only if the parties appear to have a clear understanding of each other's positions and of the information upon which they are based);
- Where a decision-maker who is not at the table will deviate from a stated position only on the basis of a credible neutral evaluation; and
- Where a necessary party will not engage in meaningful negotiations absent the incorporation of some form of neutral evaluation into the negotiation process.
It should be noted that neutral evaluation–whether of a narrow issue or of the whole case--can be integrated with more mediative approaches.
What if you are unsure whether ADR would be appropriate in a particular case?
When in doubt, talk with someone who has experience in ADR case-screening, be they a colleague, an independent dispute resolution professional, or an agency-employed ADR specialist. EPA offers confidential ADR case-screening to both agency staff and outside parties. EPA New England has a wealth of experience and expertise to help parties make informed decisions about whether ADR is likely to be useful in a specific case and, if so, how best to proceed. It is important to emphasize that such in-house agency consultants have no decision-making authority with respect to any case. The decision to pursue ADR remains entirely with the parties.
What happens if you think mediation is a good idea but the other side does not?
As noted earlier, mediation is voluntary–it doesn't happen without the consent of the necessary participants. Often, however, parties are reluctant to mediate because they are not clear what it is or have misconceptions about the process. The EPA New England ADR team can, at a minimum, help you think through how best to approach other parties about the possibility of involving a neutral. The team may also be available to assist directly in contacting other parties and helping them make an informed decision about whether to participate in an ADR process. If a party with an accurate understanding of mediation is still unwilling to participate, then, by definition, the situation is either not ripe or not appropriate for mediation.
How do you find the right mediator?
There are several ways to secure a mediator and set up a process. Among the most common are:
1) By assignment from a court-sponsored ADR program
Court-assigned mediators are most often used in cases where parties enter ADR either at the court's invitation, as in administrative penalty cases under the 40 CFR Part 22 procedures ("Part 22 cases") or at the clear urging, if not order, of the court. The chief advantage of this selection process is that it is quick and presumably unbiased. In addition, some of the court-appointed mediators, such as the Administrative Law Judge mediators assigned in Part 22 cases, are provided free of charge. The chief disadvantage is that the parties often have little or no control over who the mediator is -- in some cases, the result may be a mediator who, for any number reasons, is not the right neutral for a case which might otherwise benefit from mediation.
2) Hiring an independent mediator by agreement of the parties
A second option, which may make sense in a complex, high-stakes case, is to engage an outside mediator who is acceptable to both sides. This may be expensive and may take a little time to put in place, but it may offer the greatest assurance to both parties that the mediator is impartial, skilled, and "a good fit" for the needs of the case. In fact, parties who see the possibility of a court-appointed mediator coming might consider whether they are better served by quickly reaching agreement on a mediator of their own and preempting the court's imposition of a neutral.
3) Using Agency ADR services
A third option is the use of in-house agency ADR resources. EPA Headquarters and some of the regions offer in-house ADR services of various kinds, including convening, neutral facilitation, and, in limited circumstances, full-fledged mediation. At the regional level, EPA New England's ADR Program offers the most extensive convening and mediation services. This approach is administratively quick and easy and, as with the Administrative Law Judges' ADR program, the Regional Program's in-house services are free. The Regional Program's resources are split roughly equally between ADR consulting (helping parties decide whether a case is appropriate and/or ripe for mediation, assisting with mediator selection, assisting with process design, etc.) and providing direct mediation and facilitation services. The Regional Program emphasizes the autonomy of the parties in choosing to enter into (or continue participating in) an ADR process, design of the process, and selection of a neutral. At the national level, support for the use of ADR may be accessed through EPA’s Headquarters’ Conflict Prevention and Resolution Center.
In addition to EPA's in-house resources, there are agencies created for the specific purpose of dispute resolution. The U. S. Institute for Environmental Conflict Resolution in Tucson, Arizona, offers a host of services to assist parties in resolving environmental disputes involving the federal government. Among other resources, the Institute manages a roster of environmental dispute resolution professionals to assist parties in identifying suitable neutrals across the country. Finally, a growing number of states have established dispute resolution agencies which offer, among other things, environmental dispute resolution services. The Massachusetts Office of Dispute Resolution, for example, has played a significant role in the use of ADR in environmental cases in Region 1. Many of these agency ADR programs operate on a fee for service basis. Certain services, however, may be available at no charge. To find out more about a particular agency’s fee system, we recommend that you contact that agency directly.