Alternative Dispute Resolution for Contested TCEQ Matters
- What is mediation?
- When and how can I request mediation?
- How does the process work?
- Why should I use mediation?
- How do I get more information?
What is mediation?
Mediation is an informal process used to resolve disputes by negotiation and settlement. The TCEQ’s Alternative Dispute Resolution (ADR) program offers mediators—trained, neutral facilitators—to help settle disputes between parties to TCEQ matters. The mediators help by:
• keeping the parties focused in their discussions
• assisting the parties in communicating their interests to one another
• helping the parties explore settlement options
• assisting in drafting settlement documents
TCEQ mediation services are provided to parties of TCEQ-docketed matters at no charge.
The TCEQ mediator makes no decisions or recommendations at the conclusion of the mediation process, as a judge or an arbitrator would. The goal of mediation is to create an agreement that is crafted by the parties themselves, which settles the matter. While “handshake” agreements are sometimes used, mediators encourage participants to create a written and signed, enforceable contract—one in which all parties’ rights and obligations are clearly defined.
The mediator is independent and neutral, and has no interest in the outcome of any contested matter. As a separate and distinct office within the TCEQ under the management of the General Counsel’s Office, the ADR Program maintains independence within the agency, and is not affiliated with or influenced in any way by the Executive Director or Public Interest Counsel offices, both of which are statutory parties to contested case matters.
The mediator's role is to be impartial and to determine, through talking to the affected participants, what their true concerns are, and to guide them to a resolution of the dispute that addresses their concerns. It is not the mediator's role to discourage protests, to pressure parties into settling, or to talk participants out of a trial or hearing. The mediator does not create the solution to the dispute; that is the responsibility of the parties during negotiations. The mediator assists by facilitating dialogue and conveying messages between the participants, and offering the encouragement and tools the parties need to craft their own settlement.
ADR law requires that all communications made during mediation are to be kept confidential. This prohibits the parties from disclosing to outsiders, to decision makers such as the TCEQ commissioners or a judge, or to the press, matters discussed during mediation. The mediator is prohibited also by law from disclosing any information or statements given to him or her by any mediation participant.
The TCEQ’s ADR rules can be found in 30 TAC, Chapter 40.
When and how can I request mediation?
If you wish to protest an application to the TCEQ for a new, amended, or renewed permit, you must file a timely hearing request with the TCEQ’s Office of the Chief Clerk. (You can submit a request online.) By doing this, you are requesting that the TCEQ convene an administrative contested case hearing (trial) before the State Office of Administrative Hearings (SOAH). This hearing will determine whether the new, amended, or renewed permit should be granted, denied, or changed in some way.
After the deadline for requesting a hearing has passed, the TCEQ's ADR Program may offer mediation assistance to the permit applicant and to those who have filed timely hearing requests. This often occurs before the TCEQ commissioners make a decision to grant or deny a hearing request. If the commissioners decide to grant a hearing, they also may suggest mediation at that time. The sooner in the process parties begin mediation, the more resources they stand to save by settling the matter.
You can use TCEQ mediation assistance not only for permitting matters, but in all matters that the public can contest. Examples include Voluntary Cleanup Program land access disputes, reimbursement audits, Proposition 2 (use determination) appeals, water and sewer utility service area (“CCN”) applications, district applications, and utility rate cases and appeals.
Parties involved in a contested case matter before the TCEQ may request mediation by contacting TCEQ mediators. It is more common, however, for TCEQ mediators to make the initial contact and ask if the parties are interested in mediation. Because mediation is voluntary and requires negotiations, all parties must first agree to the mediation efforts. No party is forced or ordered to participate in mediation. If mediation proceeds, all participants or their representatives must attend with the proper authorization to negotiate a binding agreement.
How does the process work?
Once all parties agree to mediation, TCEQ mediators will begin discussing the case with the parties, to become familiar with the parties' interests and the reasons for the dispute. Sometimes these initial discussions will end in a request by one party to make an offer of settlement to its opposition. The mediator can assist in crafting such an offer, communicating it to the other side, and assisting with post-offer discussions such as questions or counter-offers. Disputing parties are often better able to negotiate and settle their disputes, however, if they can discuss matters face to face. Because of this, mediators prefer to schedule a formal meeting in which all parties, including those agency representatives assigned to the matter, meet at a neutral, agreed-upon location, on a date that works for all.
Though each mediation is unique and requires a tailored approach, a typical mediation meeting proceeds through the following steps:
1) Introductory statements from the mediator: The mediator explains the process, laying the ground rules for the discussions and answering questions.
2) Opening statements from the parties: This is the parties’ opportunity to fully lay the issues on the table, and establish the foundation for what needs to be discussed. Each party is given uninterrupted time to say whatever they wish, but are encouraged to be as thorough and as specific as possible up front.
3) Question and answer period: This is an opportunity for the parties to ask any questions they have which may be helpful to leading the parties in the direction of settlement. Parties are reminded that these discussions are confidential, so they should feel comfortable being open and candid, knowing their statements could not be used against them at a later time.
4) Identification and enumeration of the specific issues that the parties seek to address as part of a settlement agreement.
5) Solution brainstorming: Parties are asked during this phase for any ideas they have that could address the identified issues. Creativity and open, collaborative group discussion are encouraged, and parties should not be shy about suggesting ideas that may seem unrealistic. Often even unrealistic and unworkable proposals can lead the parties toward one that may be feasible.
6) Narrowing talking points to those settlement ideas the parties believe are worth pursuing. The parties may wish to caucus (privately meet in a separate room among themselves) to make these evaluations.
7) The presenting of an offer by one party to the other.
8) Negotiation, if necessary: This is often performed in caucus, with assistance from the mediator.
9) Settlement agreement drafting and signing.
The mediation process is designed not to delay the application or hearing process. Moreover, offers of TCEQ mediation assistance should not be viewed as a pre-determination by the TCEQ that a hearing requester has standing to be granted a hearing.
Why should I use mediation?
Contested cases are complex, costly, and time consuming. Even the simplest hearings require many months at SOAH, and often require parties to hire attorneys and experts to provide testimony. Also, hearing participants often encounter difficulty addressing the real issues of concern to them, because the administrative law judge is not allowed to rule on these matters. For example, issues such as aesthetics are often not defined or regulated in state law, so they may be difficult to address or legally barred at a hearing.
If the matter is settled in mediation, then a hearing is not needed and all parties (including those with the TCEQ) save the expense, time, and stress of a hearing. Also, because there are no jurisdictional limits on the issues discussed at mediation, the parties are free to focus on and craft an agreement that addresses the issues that matter most to them.
If you participate in mediation but are unable to reach a settlement, the parties retain their same legal positions they had before the mediation, as if the mediation had never occurred. The matter may then be tried before an administrative law judge in a contested public hearing. Public hearings are formal, evidentiary legal proceedings that follow the rules of procedure of both the TCEQ and SOAH, as well as the Texas Rules of Civil Procedure, the Texas Rules of Civil Evidence (as those rules apply in non-jury civil trials), and the Administrative Procedure Act.
Decisions resulting from court trials or from contested public hearings are usually "win-lose" situations. However, because disputes resolved through mediation involve collaborative negotiations, mediation can result in a "win-win" outcome.
TCEQ mediation services are provided to parties of TCEQ-docketed matters at no charge. Parties to TCEQ contested case matters may opt to hire a private, outside mediator, but the parties would bear these costs.
How do I get more information?
For more information or to request mediation assistance with a particular contested matter, please contact the TCEQ Alternative Dispute Resolution office at 512-239-0687.