The use of alternative dispute resolution (ADR) to resolve disputes without resort to highly adversarial proceedings enjoys general acceptance and is widely utilized by civil courts. There are several recognized methods of ADR, with the most familiar being mediation, which is also sometimes referred to as facilitation. Mediation might, in the proper case, be utilized to resolve questions of a public policy nature under the jurisdiction of the Commission or the Department and has, in limited instances, successfully resolved disputes between potential litigants before an administrative proceeding was initiated with the Commission. Most commonly, however, mediation is used by persons who are actively engaged in litigation pending before the Commission.

Through mediation, a mediator or neutral, engages the parties in an informal and non-adversarial process designed to encourage problem-solving and facilitate the cooperative development of a mutually agreeable resolution to all, or a part, of the issues in dispute. Communications between a participant and a mediator are confidential unless the participant expressly authorizes the mediator to share the content of that communication with another participant in the mediation session. Communications among the parties and the mediator are privileged. A mediator can urge a compromise; identify weaknesses in a participant's position; or point out strengths in the opposing participant's position; and can assist in bringing a sense of realism to a dispute. A mediator can also highlight the uncertainty of the potential outcome if the issues are decided by an Administrative Law Judge following litigation. However, the mediator has no authority to require the parties to enter into a negotiated settlement, to impose settlement terms upon the parties, or to order or prohibit an enforcement action. In the event a dispute is not resolved through mediation, evidence of attempts to compromise, of conduct, or of statements occurring during mediation is not admissible as evidence; however, evidence discoverable through other means shall not be excluded merely because it is discussed during mediation. Participants in mediation retain all of their legal rights and privileges under IC 4-21.5-3, commonly referred to as the Administrative Orders and Procedures Act (AOPA).

The Commission's Division of Hearings (Division) shall continue participation in the Indiana Shared Neutrals Program by providing and receiving mediation services on a reciprocal basis under a Memorandum of Understanding with other governmental agencies. Efforts by the Division to identify and maintain a voluntary pool of mediators from within other governmental agencies as well as from sources outside state government shall be continued and expanded. In these efforts, open communications should be maintained or developed with state, local, or regional government, the Indiana state judiciary, and the Indiana State Bar Association.

(1) Proceedings in which the Commission, or an Administrative Law Judge for the Commission, is the "ultimate authority" pursuant to AOPA;

(2) After the appointment of a hearing officer for the Commission regarding the creation, management, or dissolution of a conservancy district pursuant to IC 14-33;

(3) Disputes arising between the users of surface water pursuant to IC 14-25-1-8; and

(4) Any other matter in which mediation is determined appropriate by the Commission, a Division Administrative Law Judge, or hearing officer to assist in achieving settlement or developing consensus in a disputed matter or issue.

(1) A public hearing prior to a licensing action pursuant to IC 14-11-4-8;

(2) A conservancy district matter pending before the Department;

(3) Before a decision by the Historic Preservation Review Board on the addition or removal of a site from the Register of Indiana Historic Sites and Structures pursuant to IC 14-21-1-17; and

(4) Hearings held on petitions for rule change.

DIN: 20170125-IR-312170032NRA

Composed: May 02,2024 11:35:42AM EDT

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