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.
BUT as we see in many other areas of society today, like science, technology, communication and medicine, innovation and change is continuous and occurs with increasing speed. And when disputes arise they inevitably entail complexities that can overwhelm our convention bound legal system. This can impose a high social cost to the extent complex disputes remain unresolved and problems fester.
The environmental arena (which I am very familiar with, as both a litigator and mediator) presents a perfect example of this mismatch between law and modern society. In spite of rapidly evolving scientific, technological and remedial advances in the field and the ever-increasing risks of environmental contamination and issues such as global warming and expected sea level rise, “standard procedures” in environmental litigation — and ways to resolve them — have remained relatively static and continue to mimic other less progressive forms of legal practice. As a result, most environmental cases move through the judicial system like molasses. And the environmental harm at issue tends to fester and grow.
Consider as a case in point the recent expose broadcast on public television, which reveals there may be as many 100,000 leaking underground storage tanks in New Jersey containing hazardous materials which threaten the groundwater we drink and use to irrigate our crops. Click here to read more about this story. Many of these leaking tanks have remained in place for decades because our current legal and administrative system lacks the resources to investigate and require necessary remedial action at all sites. Moreover, many of the cases involving multiple parties and/or 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.
There is 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. EPA, DOJ, 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.
The “one way fits all” environmental case resolution should be reconsidered. A good mediator can assess the conflict, help the parties agree on the testing required, agree on the most effective and least costly remedy and equitably allocate the costs of cleanup. (See my December blog post)
The old days of environmental dispute resolution, which adheres to the conventions of traditional tort litigation — where every party retains its own army of lawyers, experts, consultants, lobbyists, etc. – should be re-considered. Judges and Environmental Enforcement Agencies can help resolve this ever-growing backlog of sites needing attention by pushing these cases into mediation. I know this because I have done it successfully — hundreds of times. But the hardest part is getting parties to the table, to try something that is not habitual to them, something that at first may cause apprehension. Judges and regulatory agencies can help ameliorate these anxieties, by ushering parties into mediation and remaining available to them should an unanticipated concern arise. And clients take note: The cost of mediation ordinarily is less than the cost of a deposition or two.
The time has come for a new approach. Clients will benefit from it, it relieves judicial gridlock, it assists in administrative oversight, and it increases the overall efficiency and efficacy of the investigation and cleanup of the contamination. And most of all, it is good for the environment.