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Enforcement in New England

What is ADR?

Alternative Dispute Resolution (ADR) is a general term encompassing various techniques for resolving conflict outside of court using a neutral third party. When strategically applied in the context of enforcement negotiations, ADR has proven to be a useful tool in overcoming impasse, improving the efficiency of difficult negotiations, and achieving durable settlements. Outside of the enforcement context, ADR has been effectively used to enhance public involvement in environmental decisions, to facilitate technical inquiries and information exchanges, and to identify creative solutions to daunting problems.

What types of ADR might be used in environmental matters?

Mediation: In mediation, a neutral mediator with no decision-making authority helps parties clarify issues, explore settlement options, and evaluate how best to advance their respective interests. Mediation is the ADR technique most commonly used in regulatory and Superfund enforcement cases and, in this context, is generally a confidential process.

Facilitation: Facilitation involves the use of a neutral to help a group of people conduct productive discussions about complex, sensitive, or potentially controversial issues. The focus of the facilitator’s role is to help people communicate effectively with each other. Facilitation may be a significant component of a mediation process, especially where a large number of parties are involved. Facilitation is also often used, in the absence of an active dispute, when people come together for some type of exchange, such as to share information, to air divergent views, to generate options, to establish priorities, or to offer input into a decision. Facilitation can be useful in otherwise unassisted enforcement negotiations to help reduce confusion and conduct productive and clarifying discussions. Depending upon the context, facilitative processes may or may not be confidential.

Convening: Convening is the use of a neutral to help parties determine whether and how to pursue negotiation; the convener may help the parties identify issues, identify necessary participants, determine whether some type of neutral assistance would be useful, and if so, select a mutually acceptable neutral or team of neutrals. Individual conversations with a neutral convener are generally confidential.

Arbitration: At the other end of the spectrum from mediation is arbitration, in which the neutral evaluates the merits of the case and issues a decision which may be either binding or non-binding (advisory). The arbitrator functions essentially as a judge.

Spectrum of Dispute Resolution Methods
Unassisted Negotiation Assisted Negotiation Adjudication
  Process Assistance Outcome Prediction  
Negotiation: Parties and their attorneys attempt to resolve a dispute through direct discussions with one another. Convening: The use of a neutral to help parties determine whether and how to pursue negotiations.

Facilitation: The use of a neutral to help a group of people conduct productive discussions about complex or potentially controversial issues.

Mediation: A voluntary process involving the use of a neutral to help parties reach agreement by clarifying issues, exploring settlement options, and evaluating how best to advance their respective interests.
Early Neutral Evaluation: The use of a neutral evaluator to give opinions on each party’s case and the likely court outcome.

Fact Finding: The use of a neutral to investigate, analyze, and report to parties regarding factual questions.

Non-binding Arbitration: The use of a neutral to review evidence, hear arguments, and issue a non-binding decision.

Summary Jury Trial: Parties present their case to a jury for a non-binding decision.
Court: Parties litigate their case in court, presenting evidence and arguments to a judge and, as appropriate, a jury. The court issues a binding decision subject to any rights of appeal.

Administrative Court: Parties try their case before an agency administrative law judge for a binding decision subject to any rights of appeal.

Binding Arbitration: The use of a neutral to review evidence, hear arguments, and issue a binding decision.
Non-Binding Outcome Binding Outcome

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