Mediator's Role Archives - Environmental ADR

Negotiating Toxic Tort and Environmental Settlements

April 18, 2016 by Lester Levy 1 Comment

Last weekend, I attended an excellent conference presented by the ABA’s Toxic Tort and Environmental Law (TTEL) section. I was there to participate in a panel on negotiating toxic tort and environmental settlements and found the conference as a whole to be quite worthwhile. I have attended many legal conferences in my career but this was one of the very best.

The conference is the work product of a unique committee, which brings together practitioners with both environmental and toxic tort specialties. Most other committees that I am familiar with focus on one area or the other. I believe these two areas of the law belong together because there is more overlap in substance and skill than there are differences.

The combination of disciplines made for variety in the programming that ranged from developments in applicable science and law, to emerging practice areas, to the effectiveness and ethics of social media, to the needs and wants of in-house counsel. I found the panel of in-house counsel particularly interesting, because so much of what in-house lawyers identified as essential to their mission, can be readily accomplished by increasing the reliance on mediation and other ADR processes to resolve environmental disputes.

I was also struck by a common misconception articulated by many of the plaintiff side lawyers in attendance, who questioned the usefulness of ADR in mass settlements, on the grounds that such systems are designed to address claims that fall within an “average” zone, but fall short when it comes to resolving more substantial or outlier claims. But as I have written in previous blog posts, introducing the concept of tiers into a comprehensive ADR scheme, enables the parties to opt into alternate tiers with correspondingly different requirements to resolve varying types and potentially higher value claims.

On the whole, the panels were balanced, professional and collegial. The conference ran like clockwork, thanks to the preparedness of the presenters and the conference organizers. I learned a lot and plan on being there next year. Check out their website to see if you might be interested too.

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…]

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…]

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.