In mediation, parties meet and make their own decision about how to resolve a dispute. Mediation is a form of alternative dispute resolution (“ADR”).  It’s an alternative to court (where the judge makes the decision).  Courts around the country recommend mediation.    

     A mediator is a person chosen by the parties who was not involved in the dispute before. A mediator does not make a decision.  The mediator helps the parties sort through the issues in the dispute.  The mediator also helps the parties discuss possible settlements of the dispute.  If the parties agree on a settlement, it’s written down in simple terms; this closes out the court case.   

     What are the benefits of mediation?  What can you expect at your mediation session?   How does it work?  Who attends? What do you do?  This document answers those questions.

     Mediation is usually faster than court.  The parties and the mediator can schedule a mediation session as soon as possible.  In court, parties can wait months for a trial and a decision.

     Mediation is more convenient.  A mediation session is scheduled for a day and time that’s convenient for the parties.  The court schedules trials during the workday.

     Mediation is usually cheaper than going to trial, especially if lawyers or expert witnesses are involved in a case or if there are many court documents have to be filed or reviewed.

     In mediation, you can tell your side of the story--in your own words.  In a mediation, all the parties tell their side of the story, speak less formally than in court, and express their feelings. But the mediator keeps things under control.  The mediator focuses on settling the dispute.

     A mediation is confidential.  In court, documents and hearings are open to the public.

     Mediation can help a project applicant, neighbors, and the town resolve other issues related to the dispute and agree on ways to handle any future problems related to the project.

Mediation is less formal that a court proceeding.  Mediation gives parties a lot of choice.  The parties choose the mediator.  They choose a meeting place, like a conference room in a convenient location.  They choose a mediation date that’s convenient for all the parties.

The project applicant, the opponents, and a representative of the town usually attend a mediation. If these parties have attorneys, the attorneys would probably also attend the mediation.

• In a typical mediation, the parties first meet all together with the mediator.  Each side makes an opening statement with no interruptions. The parties (not just their lawyers) say what they feel about the issues and how they want to resolve the case.  

• Usually (but not always), the parties then discuss the issues together.  At some point, they may split up and go to different rooms and the mediator would go back and forth between rooms to talk to different parties (like “shuttle diplomacy”).  When a mediator meets alone with just one party without the other parties, this is called a “caucus.” In a caucus, a party and the mediator talk confidentially.  They discuss a party’s interests and concerns.  The mediator and a party will talk about whether or not what they say in a caucus is told to other parties.  The mediator uses the caucus sessions to help the parties come up with settlement ideas and respond to settlements proposed by another party.

• If the parties agree on how to settle the dispute, the mediator helps the parties write a simple settlement agreement.  The parties may sign it right there.  If the mediation doesn’t settle the case, the Environmental Court will proceed with the case and eventually issue a decision.

The Environmental Court maintains a list of mediators who are available to mediate cases throughout the State.  The Mediator Roster is available on the Court’s website.  People on this list are professionally trained to be mediators.   They also have Environmental Court training. You and the other parties can choose any person on this list to be your mediator.  You and the other parties can also choose any other qualified mediator, as long as that person is acceptable to all the parties in your dispute.

If you’re not sure about using mediation in your case, or if you have questions about the process, you can call a person on the Mediator Roster to get more information about mediation, or you can speak with the Environmental Court Case Manager.  

The cost of paying for a  mediator is often split equally among all the parties in a mediation. However, which party pays what percentage of the mediator’s fee (or if one party will pay all the cost) can be discussed and negotiated, either when the parties agree to mediation or in the mediation itself.  Different mediators charge different rates.  You can compare rates by calling more than one mediator.

Additionally, each mediator on the Environmental Court Mediator Roster has agreed to take one “pro bono” case (that is, at no charge), if asked to do so by the Court.  If you believe your income is low enough for you to quality for “in forma pauperis” status, you may petition the Court to assign a mediator to handle your matter “pro bono”.

• Get all the documents or drawings you think are important to explain your side of the case.  The mediator may ask you for copies of these and may ask you to send them to other parties.
• Have someone at the mediation who can make a final decision for your side.
• Think about what points you want the mediator and the other side to understand.
• Think about weak points in your case.  Think about the strong points of the other side.
• Think about reasonable ways to resolve the dispute that would satisfy you.
• Realize there may be ways to resolve the dispute you haven’t considered.  Be flexible.
• Many Environmental Court cases involve neighbors.  If your case involves your neighbors, think about what you’d like your relationship with these neighbors to be like in the future.