Blog - Environmental ADR

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…]

How to Think About Picking and Using a Mediator?

October 22, 2015 by Lester Levy 1 Comment

There are many facets to this question. There are hundreds of articles on the internet and in other publications which list important considerations like experience, competency, subject matter expertise, style, track record, cost, etc. These are all very important factors. No doubt.

I come at this question a little differently because many of the cases I work on are multi-faceted and involve an extensive cast of parties with divergent interests. In these cases, I think it’s important to step back and carefully consider what is impeding settlement. Is there a fundamental disagreement on valuation, or perhaps it has proven unusually difficult to communicate effectively with other parties, or else maybe there are client relationships interfering with the negotiations? It’s much easier for a third party mediator to objectively assess the dynamics of the dispute.

[Read more…]

It’s Okay to Say, “Yes.”

October 22, 2015 by Lester Levy Leave a Comment

Contrary to common belief, saying yes to an acceptable proposal is not a sign of weakness. More often than not, it is a courageous act.

There is an unwritten rule that one must make a counter-offer to every proposal received. A successful negotiator, so the saying goes, squeezes every last cent from his or her opponent. Perhaps this belief arises from a prevalent view that the best outcome can only result from the fiercest of competitive action.

In truth, however, in all conflict, and in all negotiations to resolve that conflict, there is a sweet zone in which any accepted offer would constitute a good resolution. There is no precision to this analysis. No two people view a disagreement and its optimal resolution in the same way. Importantly, continued “knee-jerk” counter-offering-behavior is not the answer. Adherence to that view can have just the opposite effect. [Read more…]

The Nit and Gritty of Mediation

October 22, 2015 by Lester Levy 1 Comment

Many lawyers adopt a simple approach to settlement negotiations. They play a game of splitting the difference. Once the two sides have established a bid and ask or otherwise defined the top and bottom of the range, settlement talks consist of each side taking a step towards the middle. If one side makes an offer 5% closer to the mid-point, then the other side responds with a similarly proportioned counter-offer. This sort of negotiation can take on a mechanical or even ritualistic flavor and a mediator’s role can be limited to just “carrying water” from one room to another.

But an effective mediation involves more than that and a good mediator is never content simply carrying water. Opening way high, if you’re on one side, and responding way low, if you’re on the other, does little to get cases settled. No meaningful messages are sent because both sides have evaluated the case beforehand and know that overly high or low proposals are just that – proposals that have no chance of success and do not invite the other side into a meaningful negotiation.

[Read more…]

Why Early Insurer Participation is Critical

September 24, 2015 by Lester Levy Leave a Comment

In many environmental cases, pre-pollution exclusion policies are invaluable assets that prove absolutely necessary in order to fund case resolution. This is especially where the insured-defendant is no longer in business or has few or no assets available to respond to the environmental cleanup requirement. But while the insurance coverage may be key to resolving the case, it is not uncommon for there to be an adversarial relationship between the policyholder and its insurance companies, as each is attempting to spend as little as possible of its own money in contribution to the settlement effort.

Needless to say this dynamic can create an impediment to reaching a settlement. What often happens is that policyholders opt to keep their insurers in the dark as much a possible, in an attempt to avoid disclosure of facts and circumstances that could provide the insurers with a basis to deny coverage. There is tension between facts that tend to establish coverage and which may also be harmful to the policyholder in the underlying environmental case.

Traditional litigation often fails to provide an effective way for insurance carriers and the value of their policies to effectively participate or contribute to resolution of the main environmental court proceeding. There may be ancillary lawsuits between various policyholders and their insurers but these are normally stayed pending resolution of liability issues in the environmental case. Even if the insurance coverage cases are not stayed there is no formal – and little informal – coordination between the various cases. [Read more…]

The Best Weapon is to Sit Down and Talk

Why I Created this Website

How to Think About Picking and Using a Mediator?

It’s Okay to Say, “Yes.”

The Nit and Gritty of Mediation

Why Early Insurer Participation is Critical

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