mediation Archives - 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.

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…]

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.

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…]

Mediation is an Alternative Process

March 10, 2016 by Lester Levy 2 Comments

Practitioners in the field of ADR lament that mediation has become increasingly “judicialized” – meaning that it is all too often viewed as just another step on the litigation path toward trial. That was not the prevailing view when I began my mediation practice almost 25 years ago. Mediation was viewed as a uniquely significant settlement opportunity, where the parties came prepared to explore settlement options and to negotiate their way to that end.

There is some unfortunate irony in the reduced role that ADR is granted in the contemporary litigator’s playbook. The litigation mindset is determined to conquer all in its pathway (at least up until the moment of a final verdict). So much so that even ADR, which is positioned as a true alternative pathway, is reduced to being merely another item in the pre-trial preparation check list.

But mediation is not a trial in miniature. The assessment of trial risks – and the costs of winning or losing – can be important factors in evaluating whether to settle and at what value. But mediation has so much more potential than that. Mediation provides a forum in which to explore alternative approaches and remedies, to better understand what is driving the underlying conflict, and the parties themselves exercise control over where and how it ends.

Mediation academics have identified an alternate metric by which to measure success in negotiation. This is referred to as each party’s BATNA. A BATNA is an acronym for considering whether maintaining the conflict, and moving ahead in litigation, is “Better than the Alternative of a Negotiated Agreement.” Practically, what this means is that the disputants should step back from the firing line and assess whether the costs, aggravation(s) and risks of unknown results in litigation present a better course than accepting the offer on the table – or offers that might reasonably be obtained through further negotiation. [Read more…]

An Alternative Approach to Reaching a Settlement in Mediation

February 29, 2016 by Lester Levy Leave a Comment

In this blog, I address a common negotiating practice – and flaw – which many parties adopt in mediation. I offer an alternative approach, which I believe is much more effective in reaching a settlement.

The prevailing orthodoxy is to enter into a settlement negotiation with the plaintiff demanding an amount substantially higher than what it will accept, and the defendant offering substantially less than it is willing to pay. In my experience, this gamesmanship is nothing more than a distraction. It does not advance the ball one iota.

If you don’t ask for what you want, or offer to pay what you think is reasonable, you reduce the chances that the negotiation will be a success.

If you believe, as I do, that most disputes have a discernible range of inherent settlement value, why waste time making proposals, which realistically have no chance of acceptance? Offers and counteroffers can be formulated and delivered near or within the zone of perceived settlement values. These will be appreciated by the recipient as a rational –- and even possibly reasonable – and should result in a response which shares the same characteristics, i.e., is seen as rational and potentially reasonable, in return. [Read more…]

What Is the Added Value of the Mediator In Getting Cases Settled?

February 5, 2016 by Lester Levy Leave a Comment

What Is the Added Value of the Mediator In Getting Cases Settled? It is important to note that mediation is a tool that can help in some but not all cases. Lawyers and clients settle cases everyday without the assistance of a mediator. Clearly, mediation is not warranted in those cases and is not intended to replace what lawyers do well on their own. In fact, most cases reach resolution in this way, and that is a very good thing.

However, there are cases where the parties are having difficulty engaging in meaningful settlement dialogues. There are many reasons for this: opposing lawyers or clients may have difficulty communicating with one another, or the parties may have reached and impasse and are unable to overcome it. Whatever the reason, mediation is a cost effective step towards resolution instead of proceeding to long and costly battle in court.

So what does a mediator do and how does he or she do it?

At the outset I must note that in most cases, a mediator has one day, or less, to cover a lot of ground. In contrast to the disputants’ long-term involvement with the case and with each other, a mediator has a relatively short amount of time to develop a relationship of trust with the parties, to master the key facts and law sufficiently to reason with the parties, to grasp the underlying dynamics between the parties, to recognize the impediments to settlement, to identify the “zone of potential agreement” and coach the parties into overcoming the obstacles to getting there and to prepare, offer and consider reasonable settlement proposals and counterproposals that might work. [Read more…]

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…]

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…]