Pre-settlement environmental mediation is commonly utilized as an alternative or adjunct to traditional federal or state court litigation. Mediation outcomes are not limited to any one statutory scheme. Mediation has fewer technical and tactical delays than traditional litigation because its progress is driven entirely by the parties themselves. EPA, DOJ, and their state counterpart agencies can join in the mediated discussions, at the discretion of the parties, even if they are not formally made parties to the case. Since most environmental cases cannot fully settle without approval from one or more regulatory agency, direct input from such governmental agencies can inform the mediating parties about which aspects of the settlement will or will not be approved, thereby avoiding delays in obtaining regulatory approval and in implementing the settlement itself. In appropriate cases, potential penalties can be mitigated through promises to implement projects with positive environmental impacts. Further, mediation does not normally generate the same disproportionate transaction costs that are incurred in traditional litigation. Indeed, in large-scale environmental litigation, transaction costs can often equal or exceed the expenditures for site study and remediation. The mediation process is inherently flexible such that it can address efficiently all case-specific areas of concern.
For example, in one recent Superfund case, the mediation was structured to address sequentially multiple overlapping plumes of groundwater contamination. Mediation sessions were further structured to resolve party-specific insurance issues, thereby facilitating insurer contributions to negotiated solutions. Where helpful, intra-insurer sessions were also held to allocate contributions from multiple policies and carriers. Moreover, agencies with regulatory oversight were invited into the mediation at key points to share their views about contemplated cleanup methodologies. With this “real-time” regulatory input in hand, the parties were confident that their agreements would likely receive regulatory approval.
The parties also utilized a scientific professional in a neutral capacity to assess and help mediate the scientific issues presented. In many cases, the interpretation of scientific data is critical to the allocation of responsibility for investigation and cleanup costs. This data is used to ascertain the type and extent of the contamination at issue, to assess relative fault among the parties, and can provide a basis for allocating responsibility for cleaning up the site. An environmental consultant or scientist – with no ties to any of the parties – was retained to supplement the legal expertise of the mediator. Such a neutral consultant can take on a number of different roles depending on the needs of the case. In this case, the scientific neutral was retained jointly by the parties to assist the “legal” neutral in assessing the parties’ competing scientific models for apportioning fault and allocating costs and then advise the parties and the “legal” neutral on each model’s strengths and weaknesses. The neutral consultant added significant value by joining the “legal” neutral in meetings with the parties’ technical experts. Together, the mediators and the experts reached important consenses, supported by the scientific evidence presented, which formed the bases for the settlement and the allocation of proposed remedial costs and actions.