The Shorelines Hearings Board and Pollution Control Hearings Board believe that mediation can
help parties reach resolution of many cases that come before the Boards on appeal. Settlement
early in a case provides a cost effective and flexible approach to resolve disputes, benefitting all
concerned. To that end the Board provides mediation services to parties free of charge.
Mediation at the Environmental Hearings Office
Board sponsored mediation is assisted negotiation. It is a voluntary process in which an
impartial, neutral party helps the parties negotiate a solution that is acceptable to them. The
mediator does not render a decision, as does an arbitrator in an arbitration process, and the
mediator has no authority to impose a settlement.
The mediation program uses Administrative Appeals Judges with training in mediation and
substantial experience in environmental law as mediators. The discussions with the mediator are
strictly confidential and are not shared with any member of the Board or the Presiding Officer in
the appeal. If the mediation does not resolve all of the issues in the case, the mediator takes no
part in any further proceedings.
Initiating the Process
Parties may jointly or separately approach the Board to request mediation. If mediation is
requested, the Board will assign a mediator who will contact the parties to ascertain their interest
in mediation and to answer questions about the process.
If the parties agree to mediation, a day-long session is typically scheduled. The Board’s
mediation program is voluntary and all parties must agree to try the process before a mediation
session is actually scheduled.
Should the Case be Mediated
Not all cases are good candidates for mediation. Some may involve issues of such important
principle that for some parties defeat is preferable to compromise. In others, one or another of
the parties may be concerned with creating a precedent. Often, one party is concerned with
settling the issues while others would prefer the conflict continue. Some basic questions should
be addressed when considering the use of mediated negotiations:
Are you and your organization willing to consider a compromise?
Do you have room for flexibility?
Why do you want to end the dispute?
Has the conflict reached the point where issues have been defined and joined and you
know who the parties at interest are?
Do all parties have some reason to bargain? Does each have the ability to frustrate or
make prohibitively costly the unilateral actions of the other(s)?
Is there some sense of urgency to settle the conflict?
Ask yourself the same questions regarding the other parties. Procedures
The procedures governing each mediation will vary depending upon the circumstances of the
case and the complexity of issues and parties. In most cases, the parties will be expected to have
all persons necessary to reach a binding agreement present at the mediation. Mediation is
offered as an opportunity to resolve as many issues as possible in the action. To accomplish that,
it is important that every person who must approve any substantive agreement be part of the
mediation session so that a full and final agreement can be completed. Parties will need to
consider who can best represent them well in advance of the mediation and evaluate the merits of
the case in some detail.
Most mediations will begin with opening statements by the parties outlining their views of the
topics to be discussed and their goals for the session. An agenda is generally developed early in
the mediation. A combination of joint sessions and meetings between the mediator and one side
(caucuses) typically follow until agreement is reached or further efforts appear futile.
All discussions at the mediation, including any statement made by any party, attorney or other
participant, shall, in all respects, be privileged and not reported, recorded, placed in evidence,
used for impeachment, made known to the Board, or construed for any purpose as an admission.
No party shall be bound by anything done or said at the conference unless a settlement is
reached, in which event, the agreement shall be reduced to writing and shall be binding upon all
parties to that agreement. Washington Court Rules regarding the confidentiality of settlement
discussions will apply to all discussions during a mediation. Also, since the ex parte contact
rules generally applicable to decision makers are not applicable to mediations, you may direct
questions to the mediator before, during, or after a mediation session.
In mediation, parties have greater control of the decision making process and maximum
flexibility in developing a resolution addressing all parties’ interests. Settlement agreements
resulting from a mediation will be presented to the Board for approval in connection with
dismissal of the case. If an agreement violates state law it will not be approved, but otherwise
the dismissal will be entered.
The Board hopes that this mediation process will help parties to reach more creative and flexible
outcomes than they might achieve in litigation, with considerably less expense and delay. The
mediators will work with the parties to tailor the mediation process to the particular dispute.