ADR Archives - Environmental ADR

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…]

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…]

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…]

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…]

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…]

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…]

Why I Created this Website

November 16, 2015 by Lester Levy Leave a Comment

I created this website to discuss real life examples of why environmental mediation really works. It is not a “how to” site. There are thousands of those out there. It’s more of a “why” or, more accurately, a “why not” site. It is focused particularly on why environmental mediation fits so well into and is consistent with the aims of maintaining and cleaning up our environment, our waters, air and soil.

There is another reason. Over the last 25 years it has become apparent to me that there is much more extensive use of mediation to resolve environmental cases on the West Coast, particularly in California, than in other parts of the country. I’ve seen this first hand, as my mediation practice has grown national in scope, and yet the environmental cases I handle remain heavily concentrated in California. I’m not sure what accounts for this disparity. Environmental disputes are similar, no matter where the pollution or groundwater contamination may happen to occur; the governing laws are similar and so is the regulatory framework. To my way of thinking, then, mediation could prove equally beneficial for environmental lawyers based in New York, Washington and Chicago as well those working on the West Coast. To the extent that lack of awareness and prior experience is a contributing factor in explaining why California remains so much more advanced in the use of environmental mediation, I hope this website will serve to ameliorate those deficits. [Read more…]