The environmental division often asks parties to attempt mediation to help reach an agreement that is acceptable to everyone.
Mediation is an alternative to court. In mediation, the two sides in a legal dispute attempt to settle the dispute through active participation of a third party—the mediator—who has no involvement in the case. The mediator begins by helping the parties sort through the issues in the dispute. The mediator then works to find points the parties can agree on. The mediator also helps the parties discuss possible settlements of the dispute. Unlike court, where the judge decides, the mediator does not make a decision. If the parties agree on a settlement, they write it down in simple terms and file it with the court. This closes the court case.
Mediation can begin in different ways. In some cases a judge will ask parties to attend mediation. In other cases the parties will ask the judge if they can try mediation. Some parties go to mediation to help resolve environmental and land use disputes before they reach the environmental division—for example, when matters are still before planning commissions, development review boards, and/or zoning.
Mediation is less formal than a court proceeding. It gives parties a lot of choice. The parties choose the mediator and a meeting place in a convenient location. They choose a mediation date that works for all the parties.
In environmental division cases, the project applicant, the opponents, and a representative of the town usually attend a mediation. If these parties have lawyers, the lawyers probably attend the mediation as well.
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. The mediator then goes back and forth between rooms to talk to the various parties. A caucus is when a mediator meets alone with only one of the parties. In a caucus, a party and the mediator talk confidentially about a party’s interests and concerns. The mediator and the party will decide whether or not to tell the other parties what they discussed in a caucus. The mediator uses the caucus sessions to help each party come up with settlement ideas and respond to proposed settlements from the other parties.
If the parties agree on how to settle the dispute, the mediator helps them write a simple settlement agreement. The parties may sign it right there. If the mediation doesn’t settle the case or only settles a part of it, the environmental division will proceed with the case and eventually issue a decision.
- 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. Parties normally chose a day and time for a mediation session that works for everyone. The court schedules trials during the workday.
- Mediation is usually cheaper than going to trial. If a case goes to trial, parties may need to pay a lawyer, hire expert witnesses, or file or review many court documents.
- In a mediation, all the parties tell their side of the story, speak less formally than in court, and express their feelings. It is the mediator’s role to keep things under control. The mediator focuses on settling the dispute.
- A mediation is confidential. 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.
The environmental division maintains a list of trained mediators who are available to mediate cases throughout the state. This mediator roster is available on the Vermont Judiciary website. You and the other parties can choose any person on this list to be your mediator. You can also choose any other qualified mediator, as long as all of the parties in the dispute agree upon that person. Mediators whose names appear on the roster do not have any contractual connection with the environmental division, but the division has reviewed their credentials and all have training in handling environmental cases.
If you are not sure about using mediation or have questions about the process, you can call anyone on the mediator roster to get more information about mediation. You can also speak with the environmental division’s case manager.
The cost of paying for a mediator is often split equally among all the parties in a dispute. But negotiations about which party pays what portion of the mediator’s fee (or if one party will pay the entire cost) can be part of the mediation itself. Mediators’ rates vary. You can compare rates by calling more than one mediator.
Each mediator on the environmental division mediator roster has agreed to take one pro bono case (a case at no charge). If you believe your income is low enough for you to qualify for in forma pauperis status (without funds to pay), you may ask the division 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 division cases involve neighbors. If your case involves your neighbors, think about what you want your relationship with these neighbors to be like in the future
The Environmental Division mediator roster provides names of mediators who have indicated they are willing to mediate land use and environmental disputes throughout the state. These mediators may also be available to help resolve disputes before they reach the Environmental Division.
Mediators whose names appear on this list do not have any contractual relationship with the Environmental Division. The Judiciary's Advisory Committee on Mediation reviews the credentials of the mediators to make certain that they meet minimum experiential requirements (completion of a 28-hour course in mediation and 30 to 100 hours’ mediation experience). Each mediator on the list has provided a description of his or her background and named the counties in which he or she is available to mediate.