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This website is authored by Lester Levy, Esq.
a founding member of JAMS.

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You are here: Home / Archives for Lester Levy

Flexibility Is Key to Success in Mediation

June 13, 2016 by Lester Levy Leave a Comment

“If it bends it’s funny; if it breaks, it isn’t.”

Woody Allen, from Crimes and Misdemeanors

flexibility-key-success-mediationFlexibility is one of the most important attributes we need to develop in life.  As Woody Allen reminds us, it is what separates comedy from tragedy; it’s what allows us to continue moving forward, without breaking, through the adversities we face in every day life.

Flexibility is also one of the key attributes of mediation.  It is an integral part of what makes mediation a powerful alternative to traditional litigation.  In the mediator’s toolkit, there is nothing more essential than the ability to approach each dispute without preconceptions about the best path forward for resolving the conflict.

To illustrate the paramount importance of flexibility in mediation, I want to share with you my recent experience when I was asked to mediate a case between a university, the city and county in which it was located, and concerned groups of citizens.  The parties were embroiled in controversy involving the university’s multi-year expansion plan and its potential effects on resources such as water, housing and traffic.

My first step was to meet separately with each party before I convened a joint session with all stakeholders.  This is an initial step I frequently find to be useful in multi-party disputes. It allows me to meet and discuss privately with each constituency their respective views on the history of their dealings together, including their inability to come to an agreement among themselves, to identify the impediments to settlement, including views and misconceptions they hold about other parties, to learn what are important elements of a successful negotiation, and to hear their personal ideas on workable settlement structure and content – their wish lists.

In this particular case it soon became apparent that the inability to reach agreement prior to the mediation was due in large part to their inability to communicate clearly and comfortably with one another.  Past dealings and strongly held personal viewpoints had interfered with the exchange of proposals, the parties’ respective views on the proposals and parties’ making them, and their ability to respond in ways that propelled negotiations forward, toward settlement.

I decided that establishing a framework for settlement called for separating the present negotiation from past efforts.  We accomplished this by starting off with a session aimed at dispelling misconceptions which I had observed, beginning to build trust in the process, and even though it was early in the process, starting to map out the zone of potential agreement.  The parties found this to be a hopeful start. [Read more…]

Filed Under: Mediation vs. Litigation Tagged With: mediation, mediation vs. litigation, negotiation, role of mediator

Mediation Can Accelerate Cleanup

March 11, 2016 by Lester Levy Leave a Comment

Mediation Can Accelerate Cleanup

A recent exposé broadcast on New Jersey public television revealed there may be as many 100,000 unaddressed and leaking underground storage tanks in New Jersey. Many of the tanks contain hazardous materials including petroleum products such as heating oil and gasoline, PCE-used by dry cleaners over many years to clean our clothes-and volatile organic compounds (VOCs), such as “degreasers,” used in many manufacturing businesses. If not contained, these chemicals, which are potentially hazardous to human health and the environment, can threaten the groundwater we drink and use to irrigate our crops.

Many of these tanks have remained in place for decades-either forgotten, because historical users have moved on, or ignored because our current legal and administrative system lacks the resources to investigate and require necessary remedial action at all sites. Cases involving multiple parties and adjoining properties are at the mercy of the judicial and administrative procedural inefficiencies identified above and the “business-as-usual” attitude of the legal professionals handling them. So resolution-and cleanup-are delayed while the contamination at issue continues to migrate or volatize, thereby risking harm to people and the environment.

Mediation provides a way to cut through this backlog. Environmental mediation as an alternative or adjunct to traditional federal or state court litigation has proven to be enormously successful. Unlike immutable judicial rules, mediation procedures and outcomes are not limited to any one statutory scheme-or to any pre-determined set of remedies. Mediation has fewer technical and tactical delays than traditional litigation because its progress is driven entirely by the parties themselves. The federal Environmental Protection Agency, Department of Justice, and their counterpart state environmental agencies, attorneys general and environmental project managers, can join in the mediated discussions even if they are not formally parties to the case. In my experience, the sooner the agencies are involved, the sooner the courts require mediation of cases that will benefit from its use, the faster the case can be resolved to the satisfaction of the parties and the agencies. Streamlining the dispute resolution process can provide a correspondingly huge savings of time and money. And the money that is spent “in process” is focused on resolution and cleanup. [Read more…]

Filed Under: Mediation vs. Litigation Tagged With: ADR, alternative dispute resolution, environmental disputes, environmental mediation, mediation vs. litigation, New Jersey pollution, water contamintation

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About Me

lester-levy

I strongly believe in the value of mediation – said another way, environmental mediation really works. I would go even further: I believe that environmental disputes are perfectly suited to the mediation process – perhaps more so than any other area of legal practice. I have formed these views after mediating environmental cases for more than 20 years, throughout the United States, and having worked with thousands of lawyers, companies, insurance carriers, regulatory agencies and courts. My … Read more

My Latest Posts

  • The inter-generational theft of Brexit and climate change
  • Our Drinking Water Regulation Is So Weak Even Flint’s Water Got A Pass
  • Environmental Mediation: A New Paradigm for Resolving Multi-Party Disputes
  • Flexibility Is Key to Success in Mediation
  • Leaving the EU would put our environment at risk

Connect with Me

Lester Levy

JAMS- New York
620 Eighth Ave. (NY Times Building)
34th Floor
New York, NY 10018
P (212) 751-2700

JAMS- San Francisco
2 Embarcadero Center
Suite 1500
San Francisco, CA 94111
P (415) 982-5267

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