WHAT IS MEDIATION?
Mediation, a form of dispute resolution, is employed throughout the country in resolving conflicts and is recognized as an effective, expeditious alternative to litigation. Mediation is a form of assisted negotiation in which the parties to a dispute meet with a mediator to discuss their differences and try to reach an agreement.
The Department of Environmental Management is offering a voluntary, non-binding mediation program to help parties resolve disputes with the Department, better utilize our limited resources and improve the service and manner in which we serve the regulated community.
WHAT TYPE OF CASES WILL BE MEDIATED?
Mediation is offered during the administrative appeal process for all enforcement appeals. The Department will also offer mediation for administrative cases for which no hearing was requested and are therefore enforceable in Superior Court, and cases in which a party has failed to comply with an existing consent agreement. Such cases are also enforceable in Superior Court. Eventually, the program could be expanded to cover all media.
HOW IS MEDIATION INITIATED?
For cases that are awaiting enforcement in Superior Court, a Department attorney will send out a letter advising the other party that mediation is available. The other party will be asked to advise the Department's attorney whether he or she would like to participate in the mediation program. If the other party does not agree to participate in mediation, the case will not be mediated. If the party agrees to participate in mediation, the matter will be referred to the mediator and the mediator will contact the other party and the Department's staff involved in the case to schedule the mediation sessions. For matters pending before DEM's Administrative Adjudication Division, mediation is discussed with the parties at a status conference. If both parties are interested, they are encouraged to request mediation prior to the prehearing conference. This is a voluntary process. The parties may decide at any time not to participate in the mediation process.
WHAT IS A MEDIATION SESSION LIKE?
In a typical case, the mediation will involve a telephone call with the parties and the mediator, followed by a meeting. As part of the meeting there may be several breakout sessions, including an initial session with both parties and the mediator present, at which the parties each present their settlement positions. This would ordinarily be followed by individual, confidential sessions between the mediator and each of the parties, and then by further joint sessions as necessary. Participation in the process is voluntary. Any settlement is created by the parties, not imposed by the mediator. The mediator does not render a decision in the case but meets jointly and separately with the parties to assist in exploring and creating the avenues for settlement. To the extent that the mediator may make recommendations for resolution, the recommendations are non-binding. The goal of the process is to reach an expeditious settlement of the dispute, which is generally reduced to writing.
ARE MEDIATION SESSIONS CONFIDENTIAL?
The exchange of information in a mediation is confidential. In fact, the Rhode Island General Laws provide that the mediator's files shall be confidential and that the mediator cannot be compelled to disclose any communications made to him or her by any participant in the mediation process. R.I. General Laws § 9-19-44.
DO I NEED A LAWYER?
It is not necessary for the parties to be represented by counsel if they would like to try to settle the issues without involving attorneys. The hope and expectation is that homeowners affected by environmental regulations, and other members of the regulated community, will not have to hire a lawyer and that a non-lawyer Department employee can represent the Department in the mediation. However, if a party wishes to have a lawyer present he or she is free to do so.
WHO SERVES AS MEDIATOR?
The mediator is a hearing officer with DEM's Administrative Adjudication Division who is trained in mediation and is not otherwise involved in the case. The hearing officer is familiar with applicable law and regulations and has extensive experience in assisting adverse parties with settlement.
WHAT HAPPENS TO THE CASE DURING THE MEDIATION PROCESS?
If a party agrees to participate in mediation, the Department will not take any court action during the mediation process. For administrative matters, the Administrative Adjudication Division will stay the proceedings during the mediation process for an intitial period of sixty (60) days. The use or non-use of a mediator does not affect either party's right to a full administrative hearing or to initiate other settlement procedures should mediation fail or should a party choose to pull out of the process.
WHAT ARE THE BENEFITS OF MEDIATION?
Mediation offers several benefits to the parties. First, it offers the parties, not the mediator, the opportunity to create an acceptable resolution of the dispute. Second, mediation focuses efforts on an agreed end to a dispute, saving each side time and money while channeling resources toward a mutually productive end. Third, the parties are more likely to be satisfied with a solution that they created rather than a resolution imposed by a court or administrative decision.
WOULD YOU LIKE MORE INFORMATION?
If you would like further information concerning the Department's Mediation Program, please contact the Administrative Adjudication Division for Environmental Matters at (401) 222-1357.