Mediation vs. Litigation Archives

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…]

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…]

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…]

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…]

Our Environment is a Precious Resource and Should be Treated as Such

March 20, 2016 by Lester Levy Leave a Comment

A New York Times article on March 17th includes an op ed., stating in part,

“Water may be the most important item in our lives, our economy and our landscape about which we know the least.”

Concurrently, the Washington Post ran an article reporting that:

“The World Health Organization has put a number on the people estimated to have died as a result of living or working in an unhealthy environment and it’s big — 12.6 million. That number represents one in four of all deaths globally and underscores the devastating impact of the chemicals and waste we’ve been putting into the air, water and earth since the end of World War II.”

These reports underscore many of the themes that I have been writing about these last few months: Why do we leave these critical issues to resolution as we might any other tort-based claim. By contrast, the societal impacts of pollution directly affect our health and enjoyment of our natural environment. The costs of investigation and cleanup – whether in the form of scientific remediation or as damages to those injured by the contamination – are borne directly by our business communities and the American taxpayers. Further, we spend far too many discretionary dollars in moving these cases through an over-burdened and overly expensive court system – which is not designed to handle the difficult scientific and regulatory issues that predominate in environmental cases. [Read more…]

Mediation Can Accelerate Cleanup

March 11, 2016 by Lester Levy Leave a Comment

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…]

Using ADR to Resolve Mass Environmental and Toxic Tort Cases

January 25, 2016 by Lester Levy Leave a Comment

There has been a lot of news recently about large-scale releases of contaminants into the air, water and soil, which have affected large numbers of people and their property. One such example is the discovery of high concentrations of lead in Flint, Michigan’s drinking water system. Another is the ongoing release in Southern California of large volumes of natural gas into the soils below the homes of residents living there. Other examples include the oceanic release of oil into the Gulf of Mexico, and the widespread property damage caused by hurricanes Sandy and Katrina to many thousands of people living in their paths.

In each of these cases, a single event or series of related events caused harm to a large number of people. As a general matter the types of harm suffered are similar but the degree of these harms differs among the affected population. In court, these cases may be filed as class actions or coordinated mass torts (possibly MDLs) and present an enormous challenge to our already overburdened court systems, which can result in substantial delays in resolving them.

Mediation and other ADR processes have repeatedly proven to be enormously valuable as a means for resolving these mass toxic tort claims as well. ADR provides a way to condense many years of expensive litigation 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 tragedy.

[Read more…]

Why Mediation is Superior to Traditional Litigation: Putting Meat on the Bones

January 18, 2016 by Lester Levy Leave a Comment

I’d like to put some meat on the bones of the cost-saving aspects of environmental mediation. I have argued that environmental mediation, properly executed, provides the opportunity to eliminate costs of duplicate work by multiple parties, while preserving every party’s right to negotiate hard on the merits of the dispute and to reach an agreed-upon allocation of the costs of dealing with the contamination at issue. In this blog, I present a hypothetical situation – based on successful mediations I have conducted – to help the reader understand why I say this.

Consider the following: There are 4 corner gas stations operating at 4 corners of an intersection. A plume of petroleum contamination has migrated down gradient (downstream) in the groundwater and threatens to contaminate nearby drinking wells. The governing environmental regulatory agency has identified each station as a potential contributor to the plume of contamination and has ordered that an investigation be undertaken to see where the contamination is located, how it got there, whether it requires a cleanup and, if so, what technology will be most effective.

Under standard practice, each party (station owner and/or operator) will hire a lawyer and retain an environmental scientist or consultant to perform the necessary investigation. The consultant will investigate levels of contamination in the soil and groundwater beneath the site owned or operated by the party that retained it. Each consultant will also install monitoring wells both above (up gradient) and below (down gradient) its own site to determine a number of things, including the areal extent of the plume, concentration levels throughout the plume, and whether potential off-site sources have contaminated that party’s property (thereby seeking to shift liability to other parties). [Read more…]

How Mediation Can Accelerate Environmental Cleanup

January 12, 2016 by Lester Levy Leave a Comment

Lawyers are creatures of habit. We are steeped in it. It starts with the training we receive in law school where we are taught a series of rules and procedures to be followed in all legal proceedings. In litigation the rules cover everything from cradle to grave, starting from the initiation of a lawsuit through trial and final appeal. The rules are intended to guarantee that each case will receive identically fair consideration and due process protections, irrespective of who the parties are or the nature of the dispute. Everyone is entitled to equal treatment and the process is the same for everyone. Every case is handled the same way.

For example, the rules of procedure permit every party to discover information from all other parties. Uniform conventions permit any party to request and receive responses orally, in writing or to inspect real property and other relevant objects. These rules were designed to create uniformity in process so that every case, whether large or small, is administered the same as any other. The rules were designed to prevent undue bias or benefit to any party by treating each case identically from a procedural point of view.

While the principle of uniformity – treating all cases alike – appeals to our basic sense of fairness it can be out of sync with the needs of contemporary society. Uniform rules and procedures are inherently resistant and slow to change. The law, in its attempt to provide a uniform regime prides itself on adhering to long-established conventions. For categories of disputes that have not changed much over the years (such as breach of contract cases, general torts, ,personal injuries, etc.), mandated consistency in procedure is of a lesser concern, since these cases do not cry out for change in the way they are resolved. [Read more…]