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What is ADR?

Alternative Dispute Resolution (ADR) is a general term encompassing various techniques for resolving
conflict outside of court using a neutral third party. When strategically applied in the context of
enforcement negotiations, ADR has proven to be a useful tool in overcoming impasse, improving the
efficiency of difficult negotiations, and achieving durable settlements. Outside of the enforcement
context, ADR has been effectively used to enhance public involvement in environmental decisions, to
facilitate technical inquiries and information exchanges, and to identify creative solutions to daunting
problems.

What types of ADR might be used in environmental


matters?
Mediation: In mediation, a neutral mediator with no decision-making authority helps parties clarify
issues, explore settlement options, and evaluate how best to advance their respective interests.
Mediation is the ADR technique most commonly used in regulatory and Superfund enforcement cases
and, in this context, is generally a confidential process.
Facilitation: Facilitation involves the use of a neutral to help a group of people conduct productive
discussions about complex, sensitive, or potentially controversial issues. The focus of the facilitators
role is to help people communicate effectively with each other. Facilitation may be a significant
component of a mediation process, especially where a large number of parties are involved. Facilitation
is also often used, in the absence of an active dispute, when people come together for some type of
exchange, such as to share information, to air divergent views, to generate options, to establish
priorities, or to offer input into a decision. Facilitation can be useful in otherwise unassisted
enforcement negotiations to help reduce confusion and conduct productive and clarifying discussions.
Depending upon the context, facilitative processes may or may not be confidential.
Convening: Convening is the use of a neutral to help parties determine whether and how to pursue
negotiation; the convener may help the parties identify issues, identify necessary participants,
determine whether some type of neutral assistance would be useful, and if so, select a mutually
acceptable neutral or team of neutrals. Individual conversations with a neutral convener are generally
confidential.
Arbitration: At the other end of the spectrum from mediation is arbitration, in which the neutral
evaluates the merits of the case and issues a decision which may be either binding or non-binding
(advisory). The arbitrator functions essentially as a judge.

Spectrum of Dispute Resolution Methods


Unassisted Negotiation

Assisted Negotiation
Process

Outcome

Assistance

Prediction

Adjudication

Negotiation: Parties and their

Convening: The

Early Neutral

Court: Parties litigate their case in

attorneys attempt to resolve a

use of a neutral

Evaluation: The

court, presenting evidence and

dispute through direct discussions

to help parties

use of a neutral

arguments to a judge and, as

with one another.

determine

evaluator to give

appropriate, a jury. The court issues

whether and how

opinions on each

a binding decision subject to any

to pursue

partys case and

rights of appeal.

negotiations.

the likely court


outcome.

Facilitation: The

Administrative Court: Parties try


their case before an agency

use of a neutral

Fact

administrative law judge for a

to help a group of

Finding: The use

binding decision subject to any

people conduct

of a neutral to

rights of appeal.

productive

investigate,

discussions about

analyze, and

Binding Arbitration: The use of a

complex or

report to parties

neutral to review evidence, hear

potentially

regarding factual

arguments, and issue a binding

controversial

questions.

decision.

issues.
Non-binding
Mediation: A

Arbitration: The

voluntary process

use of a neutral

involving the use

to review

of a neutral to

evidence, hear

help parties reach arguments, and


agreement by

issue a non-

clarifying issues,

binding decision.

exploring
settlement

Summary Jury

options, and

Trial: Parties

evaluating how

present their case

best to advance

to a jury for a

their respective

non-binding

interests.

decision.

Non-Binding Outcome

Binding Outcome