Logo
  • Email
  • LinkedIn
  • RSS
  • Twitter



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

  • About
    • About Lester Levy
  • The Basics of Environmental Mediation
    • What types of Environmental Cases can be mediated?
    • The Benefits of Environmental Mediation
    • The Environmental Mediation Process
    • Insurance Company Involvement
    • The Mediation Outcome
  • Case Studies
    • Case Study 1: Objectivity as Resolution Tool Provided Through A Neutral Expert
    • Case Study 2: Working Together
    • Case Study 3: Swift, Fair and Efficient: Awarding Compensation to Toxic Tort Victims
    • Case Study 4: Sequenced Regulatory and Insurance Negotiations
    • Case Study 5: How Communication Both Causes and Ends Conflict
  • Blog
  • In the News
  • Contact
You are here: Home / Case Studies / Case Study 4: Sequenced Regulatory and Insurance Negotiations

Case Study 4: Sequenced Regulatory and Insurance Negotiations

environmental mediation case study 3Pre-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.

 

  • Case Study 1: Objectivity as Resolution Tool Provided Through A Neutral Expert
  • Case Study 2: Working Together
  • Case Study 3: Swift, Fair and Efficient: Awarding Compensation to Toxic Tort Victims
  • Case Study 4: Sequenced Regulatory and Insurance Negotiations
  • Case Study 5: How Communication Both Causes and Ends Conflict
Tweets by @environmentadr

Environmental Mediation Newsletter

Sign up to receive my environmental mediation newsletter on a monthly basis

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

Copyright 2016-2020 Lester Levy | Site developed by Good2bSocial