Enforcement in New England
In-House Neutrals: Can Agency Staff Mediate EPA Disputes?
by Elissa Tonkin
Regional ADR Program, EPA New England
"Agency neutral" -- it has the ring of a perfect oxymoron. Right up there with "jumbo shrimp," "civil war," and "fresh-frozen." After all, if you were embroiled in a dispute with, say, the United States Environmental Protection Agency, where could you possibly find a less "neutral" neutral than on EPA's payroll? And given the abundance of skilled outside mediators, why would you waste more than half a second of your time even considering it? These are fair questions which probably enter the minds of many parties who are offered the services of oxymorons like myself to assist in resolving their EPA-related conflicts. Yet no one could be more amazed than I at the increasing frequency with which our modest fleet of in-house mediators has been invited by outside parties to function in a neutral capacity. Since the mid 90’s when we first began offering these services, our Regional ADR Program has provided neutral services in over 100 matters. These instances of ADR use have consisted primarily of mediation but also include neutral convening and neutral facilitation.
Based on this growing body of experience, I have become convinced that the availability of in-house neutrals is a valuable option when it is put forward in a responsible way. What follows is an attempt to organize and articulate the jumble of observations and considerations that have led me to this conclusion.
Setting aside, for the moment, the question of whether it is a good idea, why DO parties elect to use in-house neutrals? Usually for a combination of reasons, which fall loosely into two categories which I think of as: (1) Muted Minuses; and (2) Pluses.
In the first category, I lump together all those considerations which tend to mitigate the obvious concerns about neutrality. Apprehensions about the in-house neutral's potential for bias appear to be significantly allayed by the pervasively voluntary nature of the decision to mediate. Parties generally have the option to bring in a mutually-acceptable outside neutral and always have the option -- which they often exercise -- to reject the use of ADR altogether. In our program, we feel a heightened responsibility to follow certain practices aimed at enabling parties to make an informed choice in this regard. For example, care is taken to make full disclosure about the background and role of the in-house neutral, and to explain the legal and practical mechanisms that will be relied on to protect the confidentiality of the process. Assurances are also provided about the neutral's lack of decision-making authority or substantive accountability within the Agency for the outcomes. We see this duty to preserve the consensual aspect of the parties' participation as more than a threshold matter. At the slightest stirring of dissatisfaction, we remind parties that they are free to withdraw from the process at any time. Ironically, the only time that a significant concern has been registered about the in-house neutral's perceived bias, the complaining party was the Agency itself. This underscores the perverse reality that there is perhaps a greater risk that the in-house neutral will overcompensate and exhibit disproportionate sympathy for outside parties. The saving grace is that EPA enjoys the same power over the process as any other participant. In short, the choice to use an in-house neutral is a low-risk, reversible decision over which each party has control.
Still, all things being equal, why introduce any additional risk into the already uncertain business of neutral-assisted negotiating? This brings us to the rarely-spotlighted category of pluses. There are actual advantages to be gained by outside parties who use in-house neutrals that go beyond managing the possible drawbacks. Though I am drawn to the fantasy that this list is headed by the unparalleled dispute resolution genius of most in-house mediators, the crass truth is that cost and administrative ease are likely the most influential selling points. Not only are our program's neutral services offered for free, an unbeatable price in any market, but accessing these services is as simple as saying, "Yes, please." Anyone who has ever dealt with federal procurement procedures can appreciate the significance of this latter benefit.
There are other advantages that arise in the context of particular cases. For example, as the work of particular in-house neutrals comes to be known in the community, outside parties are more inclined to take advantage of their services because they, or people they know and trust, were satisfied with the treatment they received in an earlier matter. Put another way, credible personal recommendations outweigh theoretical objections.
Another factor that might be more relevant in some cases than others is the perceived expertise of the neutral, not simply subject matter expertise, but organizational-culture expertise. A party who has been mystified by EPA's reactions to previous settlement proposals may welcome the assistance of a neutral who speaks the Agency's language and can serve as a translator.
Another consideration that is more "phase-specific" than case-specific relates to the neutral's financial and professional interest in being selected to assist in a major negotiation. This typically arises during the convening stage of high-stakes, multi-party cases in which the parties have agreed that they would like a neutral facilitator to help them select a mediator, Superfund allocator or team of neutrals for the long haul. In one instance, a large group of outside parties expressly requested an in-house facilitator, rather than an independent dispute resolution professional, to provide neutral assistance with the mediator selection process. Their aim was to avoid the possibility that the facilitator would have a stake in the outcome of that phase of the process. In still other cases, outside parties have requested our services during the early stages of establishing an ADR process based in part on a perceived expertise we have developed in helping large groups of parties collaboratively select a mediator and begin to define the process.
All this to say, neutrality matters greatly in this line of work. But the experience of our program has been that parties ultimately judge neutrality more on the basis of behavior than affiliation.
One final note. In-house programs like ours are by no means a substitute for independent neutral services. We generally do not take on long-term, resource-intensive mediations. We would not even offer our services in a situation where a pre-existing perception of bias seemed likely to be an issue. Or where the parties were ready and able to hire an outside neutral. As a practical matter, most of the parties we work with are not choosing between outside mediators and us; they are choosing between in-house mediation and no mediation. Our program's reason for being is not to provide neutral services. It is to maximize the use of mediation and the principles of collaborative decision-making as effective tools in resolving and avoiding environmental disputes. Our experience of the last 13 years has shown us that, in some situations, the most effective way to access the benefits of mediation is to say to a hesitant party, "If you'd like to give it a try, we can provide a trained mediator tomorrow afternoon. It's a free service we offer for short-term negotiations. Some parties have found it useful. It's totally up to you..."