Memorandum of Understanding

Concerning the Interagency Shared Neutrals Program

For Mediation

This Memorandum of Understanding (MOU) establishes the Interagency Shared Neutrals Program among the: Department of Natural Resources (DNR), Indiana Department of Environmental Management (IDEM), Natural Resources Commission (NRC), Office of Environmental Adjudication (OEA), and State Emergency Management Agency (SEMA).

State agencies may engage in mediation. Mediation is defined as:

“a process in which a neutral third person, called a mediator, acts to encourage and to assist in the resolution of a dispute between two (2) or more parties….The objective is to help the disputing parties reach a mutually acceptable agreement between or among themselves on all or any part of the issues in dispute. Decision making power rests with the parties, not the mediator. The mediator assists the parties in identifying issues, fostering joint problem-solving, exploring settlement alternatives, and in other ways consistent with these activities.” (Indiana Rules for Alternative Dispute Resolution, Rule 1.3)

Benefits of a Shared Neutrals Program

A Shared Neutrals Program can provide the basic structure to encourage mediation as a method of alternative dispute resolution. In Indiana, the Shared Neutrals program allows state agencies to share the expertise of trained mediators among agencies. Under the Shared Neutrals Program, each agency is able to request and use mediators from other participating agencies; additionally, each agency makes its mediators available to other agencies. Through this interagency agreement state agencies may take advantage of external expertise and resources, on a reciprocal basis, without additional expense.

The Interagency Shared Neutrals Program has many benefits, including:

• Mediation empowers citizens and agency employees by enhancing their understanding of the dispute while increasing their ability to influence the outcome;

• Mediation provides additional opportunities for citizens and agency employees to interact, diffuse conflict, and build more productive working relationships;

• Mediation becomes more readily accessible for agencies and private parties that cannot afford to hire private mediators;

• The perception of mediator impartiality is enhanced when a mediator comes from an agency that is neither a party nor the ultimate authority for a particular dispute;

• Parties are more likely to agree to mediation where they are assured of participation by a mediator who is (and gives the appearance of being) neutral, and where access to a mediator’s services is without additional cost to them;

• Opportunities for agency personnel to use and refine their mediation and negotiation training and skills are increased.

Appropriateness of Cases for Mediation

This MOU applies to any proceeding that an ultimate authority has determined under IC 4-21.5-3.5-2 to be appropriate for mediation. In addition, this MOU applies to any matter that is exempt from IC 4-21.5 but where the agency elects to use mediation under IC 4-21.5-3.5-1. Each neutral must qualify as a mediator under IC 4-21.5-3.5-8.

Administration

Agencies will contact Steve Lucas of NRC to request a neutral under this MOU. The program will operate during the trial period without a highly structured and administratively intensive component.

Choice of Mediator

Mediators shall be chosen based on agreement by the mediating parties. In the absence of a specific request for or agreement upon a certain mediator, the administrative law judge assigned to the proceeding will determine the mediator, in accordance with IC 4-21.5-3.5-6.

Agency/Neutral Participation

Participation in this MOU does not require a neutral or an agency to participate in a particular mediation. A neutral or an agency that declines to participate is, however, encouraged but not required to communicate the reason for declining to a representative of the Indiana Conflict Resolution Institute (ICRI) for general tabulation in consultation. ICRI, based at the Indiana University School of Public and Environmental Affairs (SPEA) was established in 1997, and is dedicated to the understanding and expansion of conflict resolution in public and private arenas. ICRI will maintain confidential records regarding reasons for non-participation in the shared neutrals program.

Costs and Expenses

Participation in a particular mediation will be at no additional cost to the mediating agency. Although the services of the mediator are made available under this agreement at no cost to the requesting agency, any travel expenses of the mediator will be covered by the requesting agency. The mediating agency shall incur no additional external costs.

Mediation Agreement

A Mediation Agreement will be available for consideration and possible use by the neutral and the mediating parties. This agreement provides a general framework and reiterates the impartiality of the neutral and the confidentiality of the mediation session.

Trial Period

Individuals have expressed their desire initially not to require a strict monitoring and repayment system. For this reason, the shared neutrals program will be run on a trial basis through April 2000 and may be extended by mutual agreement of the parties.

Analysis

ICRI will conduct an evaluation of the program.

• Neutrals will complete a brief Mediation Tracking Form with their hours, the number of parties, whether there was settlement, and other non-confidential information and comments for general tabulation by ICRI.
• Mediating parties will be requested to complete an Exit Survey to provide constructive feedback for the mediator and the shared neutrals program. The survey will not seek the disclosure of information that, if disclosed, would compromise the integrity of any confidential matter shared during the mediation. The completed survey will be returned to ICRI for tabulation and sharing with the mediator.
• As soon as practicable after April 2000, ICRI will generate a report and provide feedback to the participants in the MOU. The report will include an analysis of the distribution of the mediations by each agency providing and receiving mediation services and an analysis of participant perceptions of the program as reflecting in the exit surveys. Additionally, the report will examine whether there is a need for increased structure in the program.

Signature of this MOU represents an agreement among the participating agencies to engage in the Interagency Shared Neutrals Program as described above.

/s/_Joyce Martin ______________________________ Joyce Martin, Executive Assistant for the Environment Office of the Governor /s/ Lori Kaplan _______________________________ Lori Kaplan, Commissioner, Indiana Department of Environmental Management /s/_Larry D. Macklin___________________________ Larry D. Macklin, Director, Indiana Department of Natural Resources /s/ Steve Lucas _______________________________ Steve Lucas, Administrative Law Judge, Natural Resources Commission /s/ Wayne Penrod______________________________ Wayne Penrod Administrative Law Judge, Office of Environmental Adjudication /s/ Patrick R. Ralston___________________________ Patrick R. Ralston, Executive Director, State Emergency Management Agency

_________________________ _________________________ _________________________ _________________________ _________________________ _________________________

The individuals from all the participating agencies are, as of December 1999:

Felicia George

Assistant Commissioner of Enforcement

IDEM

100 N. Senate Ave.

Indianapolis, IN 46206

317-233-5523

Catherine Gibbs

Attorney, Cost Recovery

IDEM

2525 N Shadeland Ave.

Indianapolis, IN 46206-6015

317-232-8572

cgibbs@dem.state.in.us

Dave Hensel

Deputy Commissioner for Legal Affairs

IDEM

100 N. Senate Ave.

Box 6015

Indianapolis, IN 46206-6015

317-233-5546

dhensel@dem.state.in.us

Steve Lucas

Administrative Law Judge

NRC

ICG South Rm. 272

402 W. Washington

Indianapolis, IN 46204

317-232-4699

slucas@dnr.state.in.us

Wayne Penrod

Administrative Law Judge

OEA

150 W market St., Suite 618

Indianapolis, IN 46204

317-232-8591

wpenrod@oea.state.in.us

Tim Rider

Administrative Law Judge

NRC

ICG South Rm. 272

402 W. Washington

Indianapolis, IN 46204

trider@dnr.state.in.us

William Teeguarden

Administrative Law Judge

SEMA

302 W Washington

ICG South e208

Indianapolis, IN 46204

317-232-3980

bteeguarden@sema.state.in.us

Mary Beth Tuohy

Assistant Commissioner,

Environmental Response

2525 North Shadeland Ave.

Indianapolis, IN 46206-6015

317-308-3001

mtuoh@opn.dem.state.in.us

Silvia Wilcox

Administrative Law judge

NRC

ICG South Rm. 272

402 W. Washington

Indianapolis, IN 46204

317-232-4229