Alternative Dispute Resolution for Disputed Environmental Permit Applications

• How does alternative dispute resolution (ADR) help resolve contested environmental permit applications?
• What is mediation?
• How does mediation work?

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.