Using Mediation in Canadian Environmental Tribunals: Opportunities and Best Practices

The popularity of alternate dispute resolution (ADR) has been growing for decades, particularly in the United States and now in Canada. Although ADR has become increasingly popular in the Canadian administrative context, it faces certain difficulties arising from the public interest mandate of many tribunals, in particular environmental tribunals. These difficulties include conventional and institutional problems, such as conflict assessment, communications with and between parties, selecting and training the mediator (tribunal member, staff, or third party?), and identification of the proper parties and competing interests. There are also concerns specific to Canadian environmental tribunals. How do they protect the public interest, handle complex technical and scientific issues, enforcement, confidentiafity, and deal with the precedential value of mediated decisions?