Can Agency Staff Mediate Their Own Disputes?

Elissa Tonkin
Regional ADR Program,
EPA-New England, Region 1
U.S. Environmental Protection Agency

The views expressed in this article are those of the author and should not be attributed to the agency.

"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 1996, at the consent of the parties involved, our Regional ADR Program has provided neutral services in upwards of 60 matters. These instances of ADR use have consisted primarily of mediation and facilitation but also include neutral convening.

A couple of examples:

(1) In the course of Superfund negotiations with EPA, a diverse group of potentially responsible parties (PRPs) becomes bogged down in internal disagreements. Absent a unified settlement proposal from the PRPs, negotiations with EPA are at an impasse. The PRPs contact our ADR Program and request mediation services to assist them in resolving these internal obstacles to settlement. A short-term process is contemplated (one or two sessions). The PRPs specifically request the services of one member of our in-house team who successfully mediated a case one of the attorneys' partners had participated in. Given the number of parties and nature of the issues, we recommend the use of two co-mediators. The PRPs choose one of our mediators with expertise on Superfund settlement issues. The mediation team conducts a nine-hour in-person session with the PRP group, followed by a conference call or two. The critical internal issues are resolved. The PRP group goes on to negotiate a final consent decree with EPA. The EPA case attorney is never privy to what occurred in the mediation.

(2) A major corporation has undertaken a lucrative redevelopment project in coordination with its performance of a RCRA corrective action cleanup. The remedial activities require that an elderly couple residing on abutting property be relocated. The couple has built their dream retirement home on this parcel, is devastated by the prospect of leaving, and distrusts the corporation to give them a fair deal. The corporation perceives that it is being exploited as a deep pocket and, with numerous other access agreements yet to be negotiated, is wary of setting a dangerous precedent. Still, it could cost a fortune if the project is delayed as a consequence of this couple's unwillingness to enter into a relocation agreement based on the property's market value. EPA, in its RCRA oversight capacity, does not want to see the cleanup delayed and offers the parties free in-house mediation services. First, the mediator helps the parties clear up some misperceptions of each other that are inhibiting negotiations. Then she spends extra time with the homeowners who are paralyzed by the emotional content of the situation. She allows them to vent and helps them consider and understand their realistic alternatives to a negotiated settlement. Still far apart in their positions, the parties are then brought together for a tightly facilitated session. During this meeting, the homeowners explain the situation they have endured to high level company representatives, who, in turn, explain their constraints to the homeowners. Having felt genuinely heard by the company, the homeowners revise their settlement offer and an agreement is reached within an hour.

Based on this limited but 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.

Perhaps most illustrative of the role I see of the in-house neutral is a recent mediator-selection process in which the parties did not authorize me to serve as a neutral facilitator. In addition to the usual misgivings about my ties to the Agency, the notion that "you need a mediator to pick a mediator" had struck some participants as patently absurd. Meanwhile, the level of distrust among the parties was as toxic as the contamination which was the subject of the case. It became apparent early on that reaching agreement on a qualified, available mediator would not be the quick and easy administrative detail some had imagined. I hovered in the wings in the ambiguous capacity of EPA's ADR Specialist. I monitored the proceedings, alert to small opportunities to offer assistance and to begin gaining the trust of a broader base of the participants. I compiled resumes, scheduled interviews, secured references, and gradually became the point person for the logistics of the selection process. Parties began to contact me directly and to speak to me more freely about their concerns and reactions to various candidates. Always mindful of the boundaries that had been set for me, I used what limited authority I had and all of the mediation training and experience I had to assist the parties in advancing the process in a way that seemed most calculated to succeed. In choosing my words and actions, I tried to convey that my primary interest in the case was to promote the effective use of mediation and to minimize the likelihood of what many feared would be an unproductive negotiation. In the end, to the extent the parties perceived that there was a useful role for me to play, they allowed me to play it. Specifically, they allowed me to learn enough about their interests and priorities that I was able to help them identify the one candidate that they all seemed able to endorse with some degree of enthusiasm. Neither acknowledged to be "neutral," nor empowered to "facilitate," I played no more or less of a role than I would have - or should have - played had I been engaged at the outset to serve as a neutral facilitator. 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 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. We have stumbled along, learning as we go. And one of the many things we have learned is 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..."