Alternative Dispute Resolution for Contested TCEQ Matters

What is mediation?

Mediation is an informal process used to resolve disputes through 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 assist by:

• bringing disputing parties together into a forum which promotes collaborative rather than adversarial engagement


• identifying the issues which caused the conflict, and assisting the parties in communicating their interests to one another


• keeping the parties focused in their discussions on those issues and interests


• facilitating exploration of settlement options


• providing guidance in drafting, executing and filing settlement documents

TCEQ mediation services are provided to parties of TCEQ-docketed and potentially-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 occasionally sufficient or preferred, 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, advocating 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 statutes require that all communications made during mediation are to be kept confidential. This prohibits the parties from disclosing to outside non-parties, 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 modified/amended in some manner. As a protesting party, your participation would be required at such a SOAH hearing.

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. Should the commissioners decide to grant a hearing, they may at such time suggest mediation (which would be memorialized in their interim order by an “ADR referral”). This referral is typically a parallel path, or “concurrent” referral, such that it does not delay the timeframe for the transfer of the matter to SOAH. The sooner in the process parties begin mediation, the more resources they stand to save by settling the matter.

TCEQ mediation assistance is available 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, and district petitions.

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 initiate the process by contacting the parties and inquiring as to whether they are interested in mediation. Because mediation is voluntary, all parties must first agree to participate in the process. 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 and execute 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. Occasionally these initial discussions will culminate in a request by one party to make an offer of settlement. 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, either meet virtually (Zoom or Teams Meeting) or 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/mitigate 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?

TCEQ contested case hearings 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, due to jurisdictional and potential issue referral limitations placed on SOAH judges, hearing participants may encounter difficulty addressing the real issues of concern to them. For example, matters 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) are saved 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 are of most consequence to them.

If mediation does not result in 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" scenarios. However, because disputes resolved through mediation rely upon collaborative negotiation and creative problem solving, 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 those 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.