Blog - Environmental ADR

Environmental Mediation: A New Paradigm for Resolving Multi-Party Disputes

July 6, 2016 by Lester Levy Leave a Comment

Some of you may already have seen a copy of my new ebook, in which I propose a new paradigm for resolving complex, multi-party environmental disputes. It relies on mediation — not as it has been compromised and incorporated into standard litigation procedures — but as a true and superior alternative to litigation.

Why did I write it?

I wrote it because of what is going on in the world today. Because there is an urgent need for a neutral forum and a fair process in which to investigate, discuss and remedy some of the myriad problems that have adversely affected our natural resources and our quality of living. I wrote it because I’ve seen first hand, over the last 25 years, how environmental mediation provides the participants with greater control over their own destinies and a route to achieve settlement outcomes that are more scientifically sound, more cost effective and which can be reached in a more timely fashion compared to tort style legal adjudication, and which are designed to better the environment.

I wrote it to show how mediation provides a unique opportunity to bring together the parties involved in an environmental problem, their representatives, including scientific experts and environmental regulatory agencies, to intelligently assess the conflict, agree on the testing required, agree on the most effective and least costly remedy, and make informed decisions about a fair and equitable allocation of actual costs of investigation and cleanup among the parties.

The e-book describes the general methodology I’ve developed as well as key steps and issues raised along the way, from initiation to final resolution of environment disputes. It includes the presentation of a basic financial model to illustrate the significant financial benefits to be realized through a mediated process instead of proceeding via traditional litigation. I believe strongly that this new paradigm is much better suited to the culture and concerns endemic to environmental regulation and the related dispute resolution needs—current and future. I also believe that many of the ideas discussed here are directly relevant to other types of complex, multi-party commercial disputes, so the potential advantages and benefits of mediation are far from limited to the environmental field. If you are interested in reading it please fill out the form below in order to download a complimentary copy.

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 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…]

Learning To Make The Most Of Imperfect Evidence

May 20, 2016 by Lester Levy Leave a Comment

Call it “rough justice” if you prefer. This is yet another reason why many lawsuits are well suited to the mediation process. In environmental cases, for example, we cannot “rewind the tape” to see exactly when and how much of a particular contaminant was released into the environment, and by whom. Similarly, we cannot perfectly dissect the subsurface beneath our feet (like cutting a slice of birthday cake) and see the precise soil and groundwater pathways that a chemical release traveled over the course of months and years, vertically and horizontally. The best we can do is to drill for samples at various locations and depths where we expect the contamination to be found, to study the resulting evidence of the subsurface contours and the chemical concentrations found at each location. From this data we “reconstruct” what we believe most likely happened many months and years ago, where the chemicals were released and where they are now located, how we can most efficiently and cost effectively clean them up, and what will happen to the affected media if the problem is not corrected.

We cannot go back in time. Therefore, we must draw informed yet imperfect inferences from all the evidence we can find.

This is where environmental mediation comes in. With this data in hand, as evaluated by experienced professionals working for the disputants, we can vet the various studies presented though informed and professional debate. From these studies, peer review and discussion, we draw rational inferences from which we can answer the key legal and scientific questions presented, including: where is the contamination found and in what concentrations, what methods are available to clean it up it to required levels, at what cost and, ultimately, who should bear the costs and in what proportion. [Read more…]

When It Comes to Environmental Protection is New York Lagging Behind?

May 16, 2016 by Lester Levy Leave a Comment

New York State and City take pride in being leaders and trendsetters when it comes to legislative and regulatory action to protect consumers in a number of areas, including banking and insurance and commercial transactions. But when it comes to environmental protection, there are ways in which New York seems to be seriously lagging compared to the extent of efforts in many other jurisdictions.

The latest account of a serious lapse in environmental protection in New York is the subject of a recent article published in Crain’s New York about long-known, but largely unaddressed, concerns about Perchloroethylene, or “Perc,” a solvent used in the dry cleaning of clothes for many decades. There is a lot of literature on this subject that was developed over many years of scientific study. The inquiry focused on concerns of potential health risks to those who work at dry cleaning establishments, inhale perc’s fumes and drink water that contains it high concentrations of perc from its release into drinking water aquifers and such.

According to the article and other sources, USEPA deems perc a “likely carcinogen” that can harm the liver, kidneys and blood, and the immune, reproductive and central nervous systems. In response to this and its independent scientific findings the State of California banned the use of perc in 2007. Ironically, the article reports that Jack Nicholson turned into the Joker when he fell into a vat of it in the first Batman movie. I, myself, have mediated hundreds of perc cases, both large and small, involving releases of this contaminant into the environment in other states throughout the country. [Read more…]

NY Peace Institute Police Mediation Trainings

May 9, 2016 by Lester Levy Leave a Comment

I just returned from the annual JAMS owners’ meeting where we were treated to a presentation from Brad Heckman of the NY Peace Institute. Brad and his colleagues are conducting a series of mediation trainings for the New York City Police Department. The training program teaches policemen how to mediate community-related disputes. The police are given the discretion to try to resolve certain conflicts they encounter in their jobs on the street through mediation, rather than issuing citations or arresting those involved. The JAMS Foundation, which provides grants to community based mediation organizations and trainers, is a funder of these trainings.

I learned a lot from Brad. One of the most interesting stories he told was of a hardened New York City cop who attended one four-day training. For much of the first three days, the officer sat arms crossed with little outward expression. Brad could not tell what he was thinking about the training – whether he was just biding his time or found it at all interesting. On the fourth day, the officer thanked Brad and told him that the mediation training had given him “a weapon as powerful as the one I carry at my side.”

This statement from an experienced and street-wise police officer reminded me of one of the first blogs I wrote about Nelson Mandela’s comment that “the best weapon is to sit down and talk.” Mandela, similarly, had lived a lifetime filled with episodes of both violent and peaceful conflict resolution, not to mention his twenty odd years spent in prison.

Neither of these men, the New York City police officer or the champion of civil rights, was afraid of conflict. Both of them had been put in harms’ way many times over many years and had witnessed all kinds of physical and emotional violence. Yet both came to believe, through different life paths, that negotiation and mediation – really just talking to one’s adversary – can be more powerful than confrontation.

Amazing stuff. Thank you, Brad, for your good and important work.

Mediation Agreements with Basic Rules Can Increase Chances of Success

May 3, 2016 by Lester Levy Leave a Comment

There are no universal rules governing mediation agreements. Individual ADR providers have policy statements about the conduct of their mediators. State and federal bar associations publish ethical rules for mediators and mediation advocates. But there are no rules mandating specific steps that must be taken during any particular mediation – nothing akin to the stepwise procedural rules, which govern judicial proceedings. Like everything else there are benefits and shortcomings associated with this. I believe that the positives that are created by mediation’s flexibility greatly outweigh the negatives associated with having few procedural rules.

On the plus side, mediations can and should be designed to meet the specific needs of the parties and the dispute. Properly designed, mediations cut to the core of the dispute and resolve it without unnecessary and expensive litigation tactics and discovery.

Recently, however, I have witnessed some trends, which highlight the potential downside resulting from mediation’s lack of strict rules and formal procedure. I have written about these in prior blogs, including attendance without reasonable levels of authority to settle, party specific mediation strategies that mirror litigation tactics – to which mediation is intended to provide an alternative – or treating mediation as merely another procedural step in the litigation process by “going through the motions” and appearing to mediate without any real intent to reach resolution.

Don’t get me wrong. I still don’t think that the practice of mediation would be well served through the creation of a uniform set of rules that would govern each and every mediation. The cure in that case would be worse than the disease. Flexibility, being one of the most potent of mediation assets, would thereby be eliminated – making it much less effective as an alternative to trial and its unyielding set of mandatory procedures.

Instead, I believe, at least in some instances, the parties to a dispute should consider entering into an agreement to mediate, as a preliminary step, in order to establish some basic ground rules and insure a framework that will give mediation the best chance of success. This practice – of entering into a preliminary agreement to mediate — has already been used effectively in at least one area of law, namely couples seeking a collaborative divorce. The primary purpose of entering into such an agreement to mediate is that it binds the parties and their counsel to pursue a negotiated settlement as a preferred and true alternative to litigation. In the context of a collaborative divorce, counsel sign the agreement to mediate and agree not to represent their client in a contested proceeding, in order to insure alignment and commitment to the process of all parties participating in the negotiation. In a number of jurisdictions, this type of agreement has proven to be highly effective in streamlining the process for couples to resolve contentious issues and obtain a legal divorce, substantially reducing the time and cost necessary to do so.

I’m not aware of any instance in which parties to a commercial dispute have entered into this type of agreement to mediate but there’s no practical or legal reason that it wouldn’t prove equally effective in various commercial contexts. I think it would prove particularly valuable if deployed among the parties in conflict, because it provides a framework to bring numerous parties together, notwithstanding their divergent agendas, in the common pursuit of a negotiated resolution. Putting an agreement to mediate in place up front would serve the salutary purpose of binding everyone, including counsel, to give mediation a real chance to work.

As I see it, in a commercial context an up front agreement to mediate would contain a few important covenants that evidence each party’s commitment to the process, such as the following:

1. We are coming to mediation to resolve as much of the conflict as possible. We understand that the process involves a serious effort to negotiate settlement and to consider all rational compromises in order to get there

2. We will bring with us all decision-makers necessary to sign a binding memorandum of agreement, or similarly binding settlement documentation

3. The decision-makers in attendance will have authority to settle. (Note that I have avoided using the phrase “full and complete authority” because it is hard to pin down. It is difficult to know in advance of the mediation the precise authority that will be sufficient to satisfy your opponent. However, compliance with this commitment requires us to make good faith estimate of settlement value and to ensure our ability to make a binding offer based on that estimate before we arrive.)

4. If we are coming to the mediation without the ability to negotiate or without the intention of offering anything of substantial value, we will inform our opponents and the mediator so that no one will be surprised and each party can decide for itself whether proceeding further in mediation makes sense.

5. Finally, counsel agree to pursue mediation as a vehicle to resolve the conflict and not to commence litigation or represent their client in any legal proceeding that may be brought with respect to the pending dispute.

It is the final provision that has proven essential in establishing collaborative divorce as a viable and cost-effective means for resolving the bitter fights over custody and child support. Of course, clients themselves still retain their rights to pursue court action whenever they deem it necessary; however, they must retain other counsel if and when they chose to do so. Consequently, under the agreement to mediate, everyone participating in the mediation, including counsel, will be similarly aligned and incentivized to pursue a negotiated solution as a first and preferred alternative.

As I see it, these types of agreements serve a potentially constructive purpose by creating a proper atmosphere in which mediation will have the best chance of success. It is somewhat akin to the way saloons were operated in the Old West – parties took off their guns and holsters before they sat down to a poker game, in order to prevent disagreement from quickly escalating. Cutting off quick and easy recourse to the courtroom may serve a similarly salubrious purpose – not so much saving lives as saving time and money and ultimately enabling the parties to find workable common ground to resolve their disputes. It’s worth serious consideration, in my view.

ADR Swiftly Compensates Parties in Mass Actions and Toxic Tort Cases

April 20, 2016 by Lester Levy Leave a Comment

We live in a world of ever-growing concern about environmental harm to our health and well-being. As the science of detection improves, so does our awareness of large-scale releases of contaminants into the air, water and soil, which can affect large numbers of people and their property.

For example, high concentrations of lead were found in Flint, Michigan, and shortly thereafter in drinking water systems in New Jersey and New York. Large volumes of natural gas were released into the soils below the homes of residents in a southern California subdivision, which volatized into the air, and remained uncapped for months. A spate of PFOA-contaminated groundwater issues have arisen throughout the Northeastern states; and, of course, we are all familiar with the widespread injuries and property damage caused by hurricanes Sandy and Katrina to tens of thousands of people living in their paths.

In each of these cases, a single event or series of related events caused harm to large numbers of people. Generally, the types of harm suffered-either to persons or to property-are similar in character, but can differ enormously by degree among the affected population. While our judicial systems were neither designed nor are they equipped to handle cases involving thousands of litigants similarly affected-but in vastly differing measures-these matters provide a perfect opportunity to use ADR skills to resolve them intelligently and effectively.

A Solution to a Complex Web of Issues

Mediation and other ADR processes have repeatedly been enormously effective in resolving mass toxic-tort and environmental claims. ADR provides a way to condense many years of expensive court procedures 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 tragic event.

In addition, mediation provides the opportunity to weave together and settle at one time many interrelated disputes that may arise from a single event or contaminated area. For example, one cluster of environmental conflicts may involve civil suits among the private parties seeking an allocation of fault and payment for the cleanup, personal injury and property damage claims arising from the same contamination, regulatory enforcement or penalty actions brought by environmental agencies and attorneys general, and lawsuits between individual parties and insurance companies that issued multiple pollution policies over the years. The outcome of each of these cases may affect the ability of the parties to resolve the other cases. But no one court or administrative body ordinarily exercises jurisdiction over all of them. Mediation, however, provides a single forum where all these cases can be resolved in a coordinated way. It may be achieved through separate agreements but the effect is the same-all moving pieces are brought to rest at a meeting point at the mediator’s conference table. It’s the point where a settlement can be reached that comes closest to meeting the collective best interests of all parties. [Read more…]

Negotiating Toxic Tort and Environmental Settlements

April 18, 2016 by Lester Levy 1 Comment

Last weekend, I attended an excellent conference presented by the ABA’s Toxic Tort and Environmental Law (TTEL) section. I was there to participate in a panel on negotiating toxic tort and environmental settlements and found the conference as a whole to be quite worthwhile. I have attended many legal conferences in my career but this was one of the very best.

The conference is the work product of a unique committee, which brings together practitioners with both environmental and toxic tort specialties. Most other committees that I am familiar with focus on one area or the other. I believe these two areas of the law belong together because there is more overlap in substance and skill than there are differences.

The combination of disciplines made for variety in the programming that ranged from developments in applicable science and law, to emerging practice areas, to the effectiveness and ethics of social media, to the needs and wants of in-house counsel. I found the panel of in-house counsel particularly interesting, because so much of what in-house lawyers identified as essential to their mission, can be readily accomplished by increasing the reliance on mediation and other ADR processes to resolve environmental disputes.

I was also struck by a common misconception articulated by many of the plaintiff side lawyers in attendance, who questioned the usefulness of ADR in mass settlements, on the grounds that such systems are designed to address claims that fall within an “average” zone, but fall short when it comes to resolving more substantial or outlier claims. But as I have written in previous blog posts, introducing the concept of tiers into a comprehensive ADR scheme, enables the parties to opt into alternate tiers with correspondingly different requirements to resolve varying types and potentially higher value claims.

On the whole, the panels were balanced, professional and collegial. The conference ran like clockwork, thanks to the preparedness of the presenters and the conference organizers. I learned a lot and plan on being there next year. Check out their website to see if you might be interested too.

Lack of authority leads to failed mediations

April 8, 2016 by Lester Levy 1 Comment

Two recent mediations vie for entry into the pantheon of failed mediations. They both suffered from the similar flaws in which one or more parties appeared with no authority to contribute to a joint financial settlement. Both cases were set up as cost sharing negotiations and were briefed as such . . . or maybe they weren’t . . .

Some background: The first mediation was intended to reach a negotiated allocation among five parties of the cost of remediating groundwater PCE contamination. All parties attended with clients and insurance carrier representatives. In advance of the mediation three parties presented proposed allocations of the cleanup costs to start the negotiations. One of the two remaining parties had consistently argued that it had no responsibility for the commingled plume and on that basis neither provided an allocation nor offered anything more than a “nuisance” payment at the mediation. This was not surprising. The fifth party’s written submission also did not comment on allocation or indicate a willingness to participate financially in the settlement. This raised concerns pre-mediation.

The second case was one in a series of drinking water contamination cases allegedly caused by chemical components in agricultural fertilizer products that were applied in many farming communities over a long period of time. That mediation involved three parties and, similarly, was intended to collectively fund a water treatment system to provide clean drinking water from municipal wells. By all accounts, one of the parties had aggressively pushed for an early mediation and giving this case priority treatment in the trial/mediation queue established by the presiding judge. However, the party that had initiated the mediation unexpectedly came with very limited and only “recommended” settlement authority that was woefully insufficient in light of the facts, seemingly out of step with its actions in championing an early mediation.

Following usual protocol, I received mediation statements from the parties in each of these cases a few days before their scheduled mediation dates; and in both cases my “radar” indicated trouble ahead. I called as many of the parties as I could reach to discuss my concerns. Some held their intentions close to their vests, while others didn’t know what their adversaries intended to do. [Read more…]

A New Paradigm for Solving Complex Environmental Disputes

April 1, 2016 by Lester Levy 1 Comment

We live in a world of ever-growing concern about environmental harm to our health and wellbeing. We are acutely aware of future environmental risk, such as climate change and sea level rise, and diminishing natural resources, such as clean drinking water and the air we breathe. To address the concerns, environmental cases need to be handled more intelligently and more effectively. As environmental problems grow in scale and complexity, we are in need of a new paradigm for resolving them.

We have the tools to make this happen but our dispute resolution models remain stagnant; stuck in the past tense. Unlike rapid and continuous innovation in science, technology, telecommunication and medicine, for example, the “old” ways of environmental dispute resolution – primarily through generic pre-trial procedural mechanisms – is inefficient and overly expensive. The current default reliance on the conventions of traditional tort litigation, where every party retains its own army of lawyers, experts, consultants, lobbyists, etc., is wasteful and often misdirected. Further, current norms were not designed to effectively promote the efficient and orderly identification and remediation of the contamination, or other problem, at issue. More often, they merely move money from one pocket to another without a corresponding increase in environmental improvement and protection.

The status quo ante imposes a high social cost to the extent complex environmental disputes remain unresolved and problems fester. The more time it takes to implement a cleanup, the more expensive the costs of that operation become. In groundwater, for example, the contaminants can continue to migrate laterally and vertically such that larger, more powerful remedial technologies will eventually be required to do the job. Or in the case of drinking water, just think of the high health and social costs imposed on the citizens of Flint Michigan as a result of delay in taking remedial action. Many of these escalating costs, in turn, are ultimately borne by taxpayers, thereby increasing the societal economic costs of pollution and its cleanup. Moreover, the clean up costs are in addition to already extremely expensive litigation-based transactional costs, which multiply each week, as the case remains unresolved. Unfortunately, most environmental cases move through the judicial system like molasses, while the environmental harm at issue tends to migrate and grow. [Read more…]