Vol. 5 No. 2 Fall 1997
A Newsletter About New Jersey's Water Quality Programs

DEP’s Office of Dispute Resolution Offers Alternative to Litigation by Linda D'Amico, Director's Office, Division of Water Quality

The goal of mediation is to have parties resolve their differences and execute a signed mediation agreement that will resolve the dispute and any matter pending in litigation.

If you have a dispute with the DEP there is a free service that can help resolve the impasse quickly and economically. The service is called Alternate Dispute Resolution and it is provided by DEP’s Office of Dispute Resolution (ODR) which was established by Commissioner Robert C. Shinn, Jr. in May 1994. ODR is an independent office in the DEP, not affiliated with any regulatory or enforcement program. The office is headed by Nancy Milsten, who practiced environmental law, representing companies and individuals before working for state and federal agencies.

New Jersey is one of only two states in the country providing ADR services within a state environmental protection department. The other state is Texas.

ODR offers two services. The first is facilitation of meetings between DEP programs and large numbers of interested parties holding many varied viewpoints. This is most often used in the development of rules. The second, and more widely used service, is mediation.

The ODR’s mediation services to the DEP and regulated community are provided at no charge. As a prerequisite, both parties must agree to the mediation and to a confidentiality provision at the outset of the proceedings. The goal of mediation is to have parties resolve their differences and execute a signed mediation agreement that will resolve the dispute and any matter pending in litigation. As of March 31, 1997, 73 mediations have been convened of which 55 have been successfully completed, 6 are still ongoing, 8 were not resolved during mediation, and 1 was partially resolved (19 involved water permitting issues). The disputes resolved were pending in the Office of Administrative Law (OAL), docketed in Superior Court, Appellate Division, or in the U.S. District Court. Many contested matters were referred to ODR by either the regulated entity or the DEP prior to any formal litigation.

When a matter is referred to ODR, all parties involved are asked if they are willing to participate in mediation. A matter can be referred for mediation by DEP personnel, a regulated entity or an individual.

There have been significant cost and time savings to the DEP and the regulated community through the use of mediation. The estimated average cost of litigating a matter through OAL has been determined by the DEP to be approximately $20,000.

The process of mediation does not provide a venue to compromise rules or policies but emphasizes resolving matters within the constraints of each participant in an interest-based non-adversarial forum. A mediator has no fact finding or decision making authority in the mediation process and does not offer solutions or impose decisions on the parties. The mediator’s focus is to help both parties present their issues in a positive manner and to raise all issues that can resolve the dispute.

For more information or questions regarding ADR, please contact Nancy Milsten, Office of the Commissioner, Office of Dispute Resolution, at (609) 292-1977.