The State of the States in Environmental Dispute Resolution:
MASSACHUSETTS
  

 

Status:
The Massachusetts Office of Dispute Resolution (MODR) is a state agency providing mediation, facilitation, arbitration, case evaluation, ADR training, and other ADR services. The MODR provides these services to public agencies, municipalities, courts, and citizens of the Commonwealth using MODR staff and private sector neutrals. The MODR has a panel of environmental mediators for a variety of environmental cases including hazardous waste, wetlands, and other environmental matters. The parties pay a mediator fee and an administrative fee.

Legal Authority:
MASS. ANN. LAWS ch. 7, § 51 (Law. Co-op. 1998) (creating a state office of dispute resolution to facilitate resolution of disputes through use of mediation and other ADR techniques; to establish standards for selection, assignment, and conduct of neutrals; and to promote ADR through education and outreach programs); MASS. ANN. LAWS ch. 233, § 23C (Law. Co-op. 1986) (setting out confidentiality guidelines for mediation and establishing a confidentiality privilege for all communications and memoranda arising from mediation). 

Contact Information:
     Harry Manasewich, Government Programs Coordinator
     Massachusetts Office of Dispute Resolution
     100 Cambridge St., Room 1005
     Boston, MA 02202
     Phone: (617) 727-2224 ext. 313
     Fax: (617) 727-6495

Program Summary

The MODR began in 1985 as a pilot project with funding in part from the National Institute for Dispute Resolution (NIDR) and the Boston Foundation and was one of the first four state offices of dispute resolution in the country. After continued growth, the agency was established by law in 1990 and is charged by statute to aid the three branches of government, municipalities, and other public institutions in the resolution of disputes. The MODR receives an annual appropriation and charges fees for its services to cover operating expenses, as authorized by its enabling statute.

The MODR has two main programs—the Court Program and the Government Program. The Court Program provides mediation, case evaluation, and arbitration services, as well as ADR orientations to several Superior Courts in Massachusetts. The Government Program provides those services as well as ADR training, facilitation, and ADR process and systems design for state agencies, municipalities, and others. Environmental projects are among the busiest in the Government Program. The MODR has a panel of private sector neutrals to provide services for cases in both the Court Program and Government Program. The MODR used an open application process to recruit, select, train, and mentor its neutrals beginning in 1987. In recognition of the need for rigorous qualification standards, the MODR developed and implemented a comprehensive performance-based evaluation process for selecting mediators. The MODR’s panel of approximately sixty-two neutrals provides services to the cases originating in the courts, state agencies, and municipalities.

Since 1985, the MODR has provided mediation services for environmental disputes. In the early 1990s, the MODR established an Environmental Mediator Panel of fourteen skilled private sector mediators with backgrounds and expertise in EDR. These mediators were chosen from MODR’s panel of neutrals and completed a series of additional training sessions to prepare them to mediate environmental cases, including environmental public policy disputes. To ensure continued high quality service, the MODR uses participant evaluations to regularly monitor its mediators.

Massachusetts has handled over two hundred environmental disputes involving municipalities and state and federal agencies. These cases have involved a diverse array of issues, including hazardous waste cleanup, cost allocation, wetlands development, facility-siting controversies, and other land-use disputes. The MODR also convenes and manages large-scale mediations involving multiple state and federal agencies, environmental groups, and the public. One recent project was the mediated multiparty agreement regarding hazardous waste in the Housatonic River, where the parties included the following: General Electric Corporation, the United States EPA, the Massachusetts Department of Environmental Protection, the City of Pittsfield, the U.S. Department of Justice, and others. Other recent projects have included the mediated multiparty agreement on the choice of technology for cleaning up what some consider to be one of the most contaminated hazardous waste sites in the world, New Bedford Harbor, and a multiparty agreement that will minimize the environmental impact of a project to widen an important road abutting the National Park in Lexington, Massachusetts. With a settlement rate of seventy percent to eighty percent for hazardous waste disputes and land-use conflicts, the MODR’s environmental program is quite successful.

There are two components to the MODR’s environmental mediation fees—an administrative fee to cover the MODR’s premediation work with the parties (generally $250 per party) and a mediator fee (generally $150 per hour shared by the parties). The MODR’s premediation work includes structuring the mediation process, identifying parties who will attend the mediation, and preparing an "Agreement to Participate in Mediation" that outlines confidentiality and fee arrangements.

In addition to resolving disputes, the MODR’s mission includes education. Thus, the MODR provides a variety of skill-building training to state and municipal employees and officials. The MODR’s training includes the following: negotiation skills, mediation, conflict analysis and settlement strategies, facilitation and meeting management, and communicating with the public. The MODR’s training ranges from half-day workshops to a complete thirty-hour mediation training.

Lessons Learned

  • A high level of personal attention must be given to each participant in the dispute resolution process.
  • Each environmental dispute is unique. Therefore, EDR processes must be tailored to the needs of the groups involved.
  • Dispute resolution training should be tailored to address the needs of the agency or group requesting the training.

Further Information

Publications

Win-Win in Pittsfield, Editorial, BOSTON GLOBE, Oct. 4, 1998.

Beyond Disputes, Editorial, BOSTON GLOBE, Nov. 20, 1996.

Will Hathaway & Karen Sontag, Massachusetts Office of Dispute Resolution Superior Court Mediator Qualification Process, WORLD ARB. & MEDIATION REP., Jan. 1994, at 15.

Indiana Conflict Resolution Institute
Last updated: June 1999
Comments: ICRI Administrator
Copyright 1999 - Indiana University, Bloomington