Alternative Dispute Resolution (ADR) by EPA's Administrative Law Judges
When is alternative dispute resolution (ADR) available?
In nearly all environmental cases filed with it, EPA's Administrative Law Judges offer the parties ADR in the form of mediation. The mediation process is initiated only if it is accepted by all parties.
Who is the mediator in instances where ADR is used?
The neutral mediator is one of the the Administrative Law Judges, all of whom have had mediation training.
Is there a cost for ADR?
There is no charge to either side in connection with the mediation.
When does the ADR process start?
This mediation is offered to the parties immediately upon arrival of the case in the Office of the Administrative Law Judges, before the case is assigned to a judge for litigation. Mediation is allowed to continue for 60 days, and, at the discretion of the mediator, may be extended up to an additional 60 days. If a case does not settle, it can still be concluded through litigation within a reasonable time of the case's arrival in the Office.
What happens if ADR does not resolve the case?
If a case does not settle during mediation, it is then handled by an Administrative Law Judge other than the mediator. This judge presides over the litigation leading to a decision resolving the case. Confidentiality is strictly observed during and after the mediation process. There is no communication on the substance of the case between the judge who served as mediator and the judge who presides over the litigation; the notes and written records of the mediator are destroyed.
What is the statutory basis for allowing the use of ADR?
Environmental cases coming before the Administrative Law Judges involve one or more of the major environmental statutes. The procedure in most of these cases is governed by the EPA regulations at 40 CFR Part 22. Section 18 of this part was amended in 1999 to facilitate the use of ADR (40 Fed. Reg. 40,176, 40,182 (1999)).
Do the Administrative Law Judges mediate cases that do not involve EPA?
Depending on the docket of the ADR judge, ADR can sometimes be made available to parties in non-EPA cases assigned to the Office of Administrative Law Judges under an active interagency agreement.