- What is mediation?
- What is the confidentiality of the process?
- Who are the mediators?
- What are the advantages of mediation?
- What are some misconceptions about mediation?
Mediation is a voluntary, confidential & flexible process that helps parties to a dispute fashion their own resolution to the conflict, usually reflected in a settlement agreement.
Confidentiality is protected by Mass. General Law c.233, Section 23C.
The mediators at MassDEP are employees qualified to mediate through an accredited mediation training program, and have been appointed to provide mediation services on the MassDEP mediation panel.
Mediation can be scheduled immediately, subject to the schedules and agreement of the parties. In contrast, full adjudicatory hearings generally take one year to reach final decision.
Mediation can be cheaper than litigation. There is no requirement for written expert testimony, cross examination or the filing of legal briefs, so mediation usually costs considerably less than an adjudicatory hearing.
Mediation puts the parties in control of the outcome. Mediation also puts settlement negotiations on an organized schedule that is often lacking when preparing for a hearing.
The mediators are in every sense "neutral." The mediator does not represent any party to the proceeding. A mediator from the MassDEP mediator panel is a Department employee, but does not represent, advocate for or make decisions for the Department or any other party in a mediation. Usually a MassDEP mediator works in a different office or program from the office or program involved in the case being mediated.
Although the mediator will help to craft an agreement consistent with applicable laws, issues are not limited to MassDEP jurisdiction if the parties need to discuss other pertinent matters that are relevant to the settlement. Mediation is non-binding until the parties agree to a settlement they can all accept. Parties can stop mediation at any time and resume the adjudicatory hearing process. Persons other than parties with legal standing to the environmental dispute can also participate if the parties agree.
Because the parties have input to the design of settlement agreements achieved through mediation, those agreements can more accurately reflect their needs. Research has shown that parties show greater satisfaction with agreements they design, due to a feeling of "ownership." As a result, mediated agreements have been shown to have a high level of compliance.
Preservation of important relationships
Mediation can often help to preserve ongoing relationships where litigation does not. Mutual gains can be maximized, and issues can be addressed in mediated agreements that could not be addressed through judicial or administrative litigation. As a result, relationships among neighbors, members of the business community and government can be sustained and even improved.
Loss of hearing rights?
By agreeing to participate in mediation, parties do not waive any rights to a full hearing (unless a settlement is reached).
Agreeing to explore a settlement through mediation is not in itself a compromise. You can walk away from mediation at any time, for any reason or no reason, prior to any agreement being reached.
Mediation can happen during the prescreening process or while the case is at the Division of Administrative Law Appeals. Generally the mediation process will not delay the litigation schedule, unless the parties request a stay or extension of time of the administrative litigation deadlines.
Prejudice to your case?
All communications during mediation are confidential, inadmissible in evidence and protected from discovery.