alternative dispute resolution Archives

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.

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…]

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…]

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…]

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…]

Using ADR to Manage Compensation Schemes with Mass Claimants

February 16, 2016 by Lester Levy 1 Comment

Recent decades have seen a dramatic rise in the use of Alternative Dispute Resolution (ADR) proceedings as a means to evaluate claims and compensate qualified parties in a mass claims settings. These cases can arise from settlements in class or mass actions filed in court or as government-originated programs designed to compensate victims of a military or environmental disaster.

Some examples that I have handled include the settlement and distribution of over $2 billion to low income farmers alleging discriminatory lending practices by the USDA; the distribution of relief to several hundred thousand claimants alleging wage and hour claims against another US governmental agency; the settlement and distribution of compensation to millions of claimants alleging wrongful conduct by a national credit card provider; the review and determination of compensation to class members alleging defective products in a variety of industries; and, of course, the distribution of settlement benefits to thousands people alleging harm from environmental releases into the air, surface- and ground- waters.

While these processes have proven to be very effective in achieving the efficient review and fair payment of claims arising from the same event or a similar type of harm, for the process to be successful, the clients seeking compensation must understand the process and what is expected of them. Transparency is critical to engender trust. Trust, in part, depends upon the design and implementation of procedural safeguards. [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…]