Lester Levy, Author at Environmental ADR

Mediation is an Alternative Process

March 10, 2016 by Lester Levy 2 Comments

Practitioners in the field of ADR lament that mediation has become increasingly “judicialized” – meaning that it is all too often viewed as just another step on the litigation path toward trial. That was not the prevailing view when I began my mediation practice almost 25 years ago. Mediation was viewed as a uniquely significant settlement opportunity, where the parties came prepared to explore settlement options and to negotiate their way to that end.

There is some unfortunate irony in the reduced role that ADR is granted in the contemporary litigator’s playbook. The litigation mindset is determined to conquer all in its pathway (at least up until the moment of a final verdict). So much so that even ADR, which is positioned as a true alternative pathway, is reduced to being merely another item in the pre-trial preparation check list.

But mediation is not a trial in miniature. The assessment of trial risks – and the costs of winning or losing – can be important factors in evaluating whether to settle and at what value. But mediation has so much more potential than that. Mediation provides a forum in which to explore alternative approaches and remedies, to better understand what is driving the underlying conflict, and the parties themselves exercise control over where and how it ends.

Mediation academics have identified an alternate metric by which to measure success in negotiation. This is referred to as each party’s BATNA. A BATNA is an acronym for considering whether maintaining the conflict, and moving ahead in litigation, is “Better than the Alternative of a Negotiated Agreement.” Practically, what this means is that the disputants should step back from the firing line and assess whether the costs, aggravation(s) and risks of unknown results in litigation present a better course than accepting the offer on the table – or offers that might reasonably be obtained through further negotiation. [Read more…]

An Alternative Approach to Reaching a Settlement in Mediation

February 29, 2016 by Lester Levy Leave a Comment

In this blog, I address a common negotiating practice – and flaw – which many parties adopt in mediation. I offer an alternative approach, which I believe is much more effective in reaching a settlement.

The prevailing orthodoxy is to enter into a settlement negotiation with the plaintiff demanding an amount substantially higher than what it will accept, and the defendant offering substantially less than it is willing to pay. In my experience, this gamesmanship is nothing more than a distraction. It does not advance the ball one iota.

If you don’t ask for what you want, or offer to pay what you think is reasonable, you reduce the chances that the negotiation will be a success.

If you believe, as I do, that most disputes have a discernible range of inherent settlement value, why waste time making proposals, which realistically have no chance of acceptance? Offers and counteroffers can be formulated and delivered near or within the zone of perceived settlement values. These will be appreciated by the recipient as a rational –- and even possibly reasonable – and should result in a response which shares the same characteristics, i.e., is seen as rational and potentially reasonable, in return. [Read more…]

Using ADR to Manage Compensation Schemes with Mass Claimants

February 16, 2016 by Lester Levy 1 Comment

Recent decades have seen a dramatic rise in the use of Alternative Dispute Resolution (ADR) proceedings as a means to evaluate claims and compensate qualified parties in a mass claims settings. These cases can arise from settlements in class or mass actions filed in court or as government-originated programs designed to compensate victims of a military or environmental disaster.

Some examples that I have handled include the settlement and distribution of over $2 billion to low income farmers alleging discriminatory lending practices by the USDA; the distribution of relief to several hundred thousand claimants alleging wage and hour claims against another US governmental agency; the settlement and distribution of compensation to millions of claimants alleging wrongful conduct by a national credit card provider; the review and determination of compensation to class members alleging defective products in a variety of industries; and, of course, the distribution of settlement benefits to thousands people alleging harm from environmental releases into the air, surface- and ground- waters.

While these processes have proven to be very effective in achieving the efficient review and fair payment of claims arising from the same event or a similar type of harm, for the process to be successful, the clients seeking compensation must understand the process and what is expected of them. Transparency is critical to engender trust. Trust, in part, depends upon the design and implementation of procedural safeguards. [Read more…]

What Is the Added Value of the Mediator In Getting Cases Settled?

February 5, 2016 by Lester Levy Leave a Comment

What Is the Added Value of the Mediator In Getting Cases Settled? It is important to note that mediation is a tool that can help in some but not all cases. Lawyers and clients settle cases everyday without the assistance of a mediator. Clearly, mediation is not warranted in those cases and is not intended to replace what lawyers do well on their own. In fact, most cases reach resolution in this way, and that is a very good thing.

However, there are cases where the parties are having difficulty engaging in meaningful settlement dialogues. There are many reasons for this: opposing lawyers or clients may have difficulty communicating with one another, or the parties may have reached and impasse and are unable to overcome it. Whatever the reason, mediation is a cost effective step towards resolution instead of proceeding to long and costly battle in court.

So what does a mediator do and how does he or she do it?

At the outset I must note that in most cases, a mediator has one day, or less, to cover a lot of ground. In contrast to the disputants’ long-term involvement with the case and with each other, a mediator has a relatively short amount of time to develop a relationship of trust with the parties, to master the key facts and law sufficiently to reason with the parties, to grasp the underlying dynamics between the parties, to recognize the impediments to settlement, to identify the “zone of potential agreement” and coach the parties into overcoming the obstacles to getting there and to prepare, offer and consider reasonable settlement proposals and counterproposals that might work. [Read more…]

Using ADR to Resolve Mass Environmental and Toxic Tort Cases

January 25, 2016 by Lester Levy Leave a Comment

There has been a lot of news recently about large-scale releases of contaminants into the air, water and soil, which have affected large numbers of people and their property. One such example is the discovery of high concentrations of lead in Flint, Michigan’s drinking water system. Another is the ongoing release in Southern California of large volumes of natural gas into the soils below the homes of residents living there. Other examples include the oceanic release of oil into the Gulf of Mexico, and the widespread property damage caused by hurricanes Sandy and Katrina to many thousands of people living in their paths.

In each of these cases, a single event or series of related events caused harm to a large number of people. As a general matter the types of harm suffered are similar but the degree of these harms differs among the affected population. In court, these cases may be filed as class actions or coordinated mass torts (possibly MDLs) and present an enormous challenge to our already overburdened court systems, which can result in substantial delays in resolving them.

Mediation and other ADR processes have repeatedly proven to be enormously valuable as a means for resolving these mass toxic tort claims as well. ADR provides a way to condense many years of expensive litigation into a precise, cost-effective, and efficient process that provides fair and individualized compensation to thousands of people that were affected by an accidental release or other tragedy.

[Read more…]

Why Mediation is Superior to Traditional Litigation: Putting Meat on the Bones

January 18, 2016 by Lester Levy Leave a Comment

I’d like to put some meat on the bones of the cost-saving aspects of environmental mediation. I have argued that environmental mediation, properly executed, provides the opportunity to eliminate costs of duplicate work by multiple parties, while preserving every party’s right to negotiate hard on the merits of the dispute and to reach an agreed-upon allocation of the costs of dealing with the contamination at issue. In this blog, I present a hypothetical situation – based on successful mediations I have conducted – to help the reader understand why I say this.

Consider the following: There are 4 corner gas stations operating at 4 corners of an intersection. A plume of petroleum contamination has migrated down gradient (downstream) in the groundwater and threatens to contaminate nearby drinking wells. The governing environmental regulatory agency has identified each station as a potential contributor to the plume of contamination and has ordered that an investigation be undertaken to see where the contamination is located, how it got there, whether it requires a cleanup and, if so, what technology will be most effective.

Under standard practice, each party (station owner and/or operator) will hire a lawyer and retain an environmental scientist or consultant to perform the necessary investigation. The consultant will investigate levels of contamination in the soil and groundwater beneath the site owned or operated by the party that retained it. Each consultant will also install monitoring wells both above (up gradient) and below (down gradient) its own site to determine a number of things, including the areal extent of the plume, concentration levels throughout the plume, and whether potential off-site sources have contaminated that party’s property (thereby seeking to shift liability to other parties). [Read more…]

How Mediation Can Accelerate Environmental Cleanup

January 12, 2016 by Lester Levy Leave a Comment

Lawyers are creatures of habit. We are steeped in it. It starts with the training we receive in law school where we are taught a series of rules and procedures to be followed in all legal proceedings. In litigation the rules cover everything from cradle to grave, starting from the initiation of a lawsuit through trial and final appeal. The rules are intended to guarantee that each case will receive identically fair consideration and due process protections, irrespective of who the parties are or the nature of the dispute. Everyone is entitled to equal treatment and the process is the same for everyone. Every case is handled the same way.

For example, the rules of procedure permit every party to discover information from all other parties. Uniform conventions permit any party to request and receive responses orally, in writing or to inspect real property and other relevant objects. These rules were designed to create uniformity in process so that every case, whether large or small, is administered the same as any other. The rules were designed to prevent undue bias or benefit to any party by treating each case identically from a procedural point of view.

While the principle of uniformity – treating all cases alike – appeals to our basic sense of fairness it can be out of sync with the needs of contemporary society. Uniform rules and procedures are inherently resistant and slow to change. The law, in its attempt to provide a uniform regime prides itself on adhering to long-established conventions. For categories of disputes that have not changed much over the years (such as breach of contract cases, general torts, ,personal injuries, etc.), mandated consistency in procedure is of a lesser concern, since these cases do not cry out for change in the way they are resolved. [Read more…]

A Crisis in New Jersey with Underground Storage Tanks

December 16, 2015 by Lester Levy 1 Comment

New Jersey Public Television (NJTV) recently completed a broadcast of a three-part expose on the dangers and difficulties stemming from as many as 100,000 underground storage tanks that remain in the ground throughout the state. In very stark terms the NJTV report warns that some of the sites are “nightmares” and “environmental ticking time bombs”, posing an immediate threat of contamination from seepage into ground water and basements in heavily populated areas.

These old storage tanks, both above and underground, are from homes, gas stations and dry cleaning sites – closed or currently in operation – where the chemicals have leaked over time. The chemicals include fuel, PCP (dry cleaning fluid) or VOCs like degreasers and other chemicals used in automotive or other manufacturing sites. As storage tanks are prone to corrosion, some of the chemicals have leaked into the soils and then leached into the groundwater. This is true of almost every tank that was built or installed more than ten to fifteen years ago, when the technology was changed to build tanks with several layers of protection. Often neighboring businesses’ tanks release chemicals into the soil which then leaches into the groundwater and combine to form “plumes” of contamination in the ground water, which flow with the groundwater in underground channels to other properties. One of the main concerns is that these plumes of contamination can reach areas where drinking water wells draw water from the contaminated groundwater or where the chemicals in the plume “off gas” as vapor upwards through the soil into buildings and homes. These scenarios present very real risks to human health and welfare.

All expletives aside, the problems and risks stemming from these buried and abandoned underground storage tanks perfectly illustrate the reason we need a new approach to solve long-standing environmental cleanup problems. As the NJTV reporters observed, the NJ Department of Environmental Protection is simply overwhelmed by the magnitude of the problem. Given budget limitations and the protracted legal process involved when regulators move to compel cleanup, the NJ DEP has essentially been performing radical triage, focusing its resources on the situations needing immediate attention, which likely will result in the vast majority of these storage tanks remaining in the ground – and the contamination remaining in the groundwater — for many years to come. [Read more…]

The Best Weapon is to Sit Down and Talk

December 15, 2015 by Lester Levy 2 Comments

The title of this blog post is a quote from Nelson Mandela who cycled through the entire spectrum of dispute resolution tactics as leader of both peaceful protests and armed resistance against the white minority’s oppressive regime in a racially divided South Africa. He spent nearly three decades in prison for his convictions. In the end, he decided that talking to one’s adversary is the most powerful tool to resolve conflict. His comment was made with respect to resolving the most significant of societal issues, such as upholding human rights, and choosing between war and peace. But I believe it applies to more mundane concerns that are the subject of most lawsuits and other legal conflict as well.

Parties in litigation “communicate” but they don’t “talk” to each other in the manner alluded to in Mandela’s comment. They communicate as permitted by strict court rules of evidence and procedure. Facts and legal arguments are presented in discovery, motion practice and at trial. “Improper” questions are objected to and not answered. “Improper” answers are “stricken.” At pre-identified points along the road to judgment, the parties ask the judge or jury for a decision that ends the case in their favor. Communications, therefore, occur only as permitted by rigid court rules that limit the manner, form and content of the questions asked and the answers given. Even when the lawyers communicate privately, it may only be to argue about whether discovery requests were properly responded to or to schedule remaining pre-trial activities.

This is not resolution talk. This is litigation talk aimed at winning or defeating your opponents. [Read more…]

Why I Created this Website

November 16, 2015 by Lester Levy Leave a Comment

I created this website to discuss real life examples of why environmental mediation really works. It is not a “how to” site. There are thousands of those out there. It’s more of a “why” or, more accurately, a “why not” site. It is focused particularly on why environmental mediation fits so well into and is consistent with the aims of maintaining and cleaning up our environment, our waters, air and soil.

There is another reason. Over the last 25 years it has become apparent to me that there is much more extensive use of mediation to resolve environmental cases on the West Coast, particularly in California, than in other parts of the country. I’ve seen this first hand, as my mediation practice has grown national in scope, and yet the environmental cases I handle remain heavily concentrated in California. I’m not sure what accounts for this disparity. Environmental disputes are similar, no matter where the pollution or groundwater contamination may happen to occur; the governing laws are similar and so is the regulatory framework. To my way of thinking, then, mediation could prove equally beneficial for environmental lawyers based in New York, Washington and Chicago as well those working on the West Coast. To the extent that lack of awareness and prior experience is a contributing factor in explaining why California remains so much more advanced in the use of environmental mediation, I hope this website will serve to ameliorate those deficits. [Read more…]