How does alternative dispute resolution help resolve contested
environmental permit applications?
A protestant who wants to contest an environmental permit
application must file a request with the agency's chief clerk that
a public hearing be held on the permit application. When this
occurs, the agency's executive director and its public interest
counsel make recommendations to the Commission about whether the
request for the hearing is valid.
If the Commission determines that a hearing is warranted, the
case may be referred to the agency's Alternative Dispute Resolution (ADR) program for mediation
between the disputing parties prior to the hearing being
convened.
But even if the Commission refers a case directly to hearing,
the ADR program will try to work with the parties before the
hearing to resolve their dispute.
Because of the growing cost to participate in a hearing, the
agency uses alternative dispute resolution to resolve these cases
whenever possible. This often shortens the time it takes to
participate in the permit application process, and cuts
participation costs for the protestants, applicants, and the
state.
What is mediation?
Mediation is the use of a trained third-party neutral (the
mediator) who serves as a facilitator in negotiations. The mediator
keeps the opposing parties focused in their talks, assists the
parties in communiating their positions to one another on the
issues in dispute, and helps in exploring possible solutions. The
mediator is not a decision-maker. Mediation is often confused with
arbitration, where the arbiter is a decision-maker.
If the dispute is settled through mediation and negotiation by
the participants, there may be no need for those persons to incur
the expense of hiring expert witnesses and attorneys, or of
conducting expensive discovery in preparing for trial in a
contested public hearing. The most common form of ADR used in
agency disputes is mediation, but other forms of ADR can be used if
all parties agree.
If the dispute is not resolved through mediation, it may then be
tried before an administrative law judge in a contested public
hearing. Public hearings are formal evidentiary, legal proceedings
that follow the rules of procedure of both the agency and the State
Office of Administrative Hearings, as well as the Texas Rules of
Civil Procedure and the Texas Rules of Civil Evidence as those
rules apply in non-jury civil trials, and the Administrative
Procedure Act.
Decisions that result from court trials or from contested public
hearings are usually "win-lose" situations. However, because the
resolution of disputes through mediation results from negotiations,
mediation can be described as a "win-win" situation.
How does mediation work?
Because mediation is voluntary and requires negotiations, all
participants must agree to the mediation efforts. In addition, all
participants, or their representatives, must attend with the proper
authorization to negotiate a binding agreement.
The senior mediator in the ADR program often appoints the
mediator. The mediator is a third-party neutral and has no opinion
or interest in the dispute or its outcome. The mediator's role is
to be impartial and to determine, through talking to the affected
persons, what their true concerns are and to guide those persons to
a resolution of the dispute that addresses their concerns.
It is not the mediator's role to discourage protests, to
pressure people into settling, or to talk people out of a trial or
hearing. The mediator's role is to persuade the ADR participants to
talk to one another and to settle their dispute, if at all
possible, without the need for a hearing. The mediator does not
determine the solution. That is the responsibility of all the
parties during negotiations.
The mediator also serves as a facilitator of information and
conveyor of messages between the ADR participants. In an effort to
encourage people to negotiate in earnest and to talk to the
mediator openly, the mediator is prohibited by law from disclosing
any information or statements given in confidence to the mediator
by any ADR participant.
ADR participants do not have to use the agency-appointed
mediator. If all parties agree, other mediators may be available,
some at no charge to the parties. If a private mediator is hired,
the agency's executive director and the public interest counsel are
prohibited by regulations from paying for the services of a private
mediator in contested cases. If the parties elect to use a private
mediator, the agency's ADR program can assist them in selecting one
who is knowledgeable in the subject matter of their case.
The mediation process is designed not to delay the application
or hearing process. Participation in agency-organized alternative
dispute resolution procedures is not a pre-determination by the
Commissioners that any protestant has legal standing to request a
hearing.