The Shorelines Hearings Board, Pollution Control Hearings Board and the Forest Practices Appeals Board believe that mediation can help parties reach consensual resolution of many cases coming before the Boards. Settlement early in the case can provide a cost effective and flexible way to resolve disputes to the satisfaction of all concerned.
Mediation at the Environmental Hearings Office
Mediation is assisted negotiation. It is a voluntary process in which an impartial, neutral party helps the parties negotiate a solution that is acceptable to them. The mediator does not render a decision, as does an arbitrator in an arbitration process and the mediator has no authority to impose a settlement.
The Environmental Hearings Office is conducting a pilot program for mediating cases pending before the Boards. The mediation program uses Administrative Appeals Judges from the Office as mediators. These services are provided to the parties at no cost. The discussions with the mediator are strictly confidential and will not be shared with any member of the Board or the Presiding Officer. If the mediation does not resolve all of the issues in the case, the mediator will take no part in any further proceedings.
Selecting Cases
As each case is filed, the Board will make an initial assessment as to whether mediation may be appropriate. A number of factors will guide the Board in making this initial determination. If the Board considers mediation appropriate, it will assign a mediator who will contact the parties to ascertain their interest in mediation and to answer questions about the process.
If a case is not identified by the Board for possible mediation, parties may jointly or separately approach the Board to request mediation. In any event, whether the Board recommends mediation or a party requests it, mediation is voluntary: All parties must agree to try the process before a mediation session is actually scheduled.
Whenever possible, the mediation session will be scheduled in conjunction with a pre-hearing conference. In those cases, if efforts to settle the case are not successful, the mediation will conclude and a pre-hearing conference will commence. The purposes of the pre-hearing conference will be to establish deadlines for discovery and motions, identify witnesses and exhibits, and refine the issues remaining for hearing.
Should the Case be Mediated?
Not all cases are good candidates for mediation. Some may involve issues of such important principle that for some parties defeat is preferable to compromise. In others one or another of the parties may be concerned with creating a precedent. Often, one party is concerned with settling the issues while others would prefer the conflict continue. Some basic questions should be addressed when considering the use of mediated negotiations:
Are you and your organization willing to consider a compromise?
Do you have room for flexibility?
Why do you want to end the dispute?
Has the conflict reached the point where issues have been defined and joined and you know who the parties at interest are?
Do all parties have some reason to bargain? Does each have the ability to frustrate or make prohibitively costly the unilateral actions of the other(s)?
Is the outcome uncertain?
Is there some sense of urgency to settle the conflict?
Do you have the support of your organization to explore possible mediation? Do they understand the implications of such an effort?
Ask yourself the same questions regarding the other parties.
Procedures
The procedures governing each mediation will vary depending upon the circumstances of the case and the complexity of issues and parties. In most cases the parties will be expected to be represented at the mediation by all persons necessary to reach an agreement. Mediation is presented as an opportunity to resolve as many issues as possible in the action. To accomplish that, each party must bring every person to the mediation who must approve any substantive decision in the litigation, or send persons who are fully authorized to bind the party. Parties will need to consider well in advance of the mediation who can best represent them and evaluate the case in some detail.
Most mediations will begin with opening statements by the parties outlining their views of the issues to be discussed and their substantive positions. A combination of joint sessions and meetings between the mediator and one side (caucuses) may follow until agreement is reached or further efforts appear futile.
Confidentiality
All discussions at the mediation, including any statement made by any party, attorney or other participant, shall, in all respects, be privileged and not reported, recorded, placed in evidence, used for impeachment, made known to the Board or construed for any purpose as an admission. No party shall be bound by anything done or said at the conference unless a settlement is reached, in which event, the agreement upon a settlement shall be reduced to writing and shall be binding upon all parties to that agreement. Washington Court Rules regarding the confidentiality of settlement discussions will apply to all discussions during a mediation. Also, since the ex parte contact rules generally applicable to decision makers are not applicable to mediations, you may direct questions to the mediator before, during or after a mediation session.
Settlement Agreements
In mediation, parties have greater control of the decision making process and maximum flexibility in developing a resolution addressing all parties’ interests. Settlement agreements resulting from a mediation will be presented to the Board for approval in connection with dismissal of the case. If an agreement violates state law it will not be approved, but otherwise the dismissal will be granted.
Benefits
The Board hopes that this mediation process will help parties to reach more creative and flexible outcomes than they might achieve in litigation and at considerably less expense and delay. The mediators will work with the parties to tailor the mediation process to the particular dispute.