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This website is authored by Lester Levy, Esq.
a founding member of JAMS.

  • About
    • About Lester Levy
  • The Basics of Environmental Mediation
    • What types of Environmental Cases can be mediated?
    • The Benefits of Environmental Mediation
    • The Environmental Mediation Process
    • Insurance Company Involvement
    • The Mediation Outcome
  • Case Studies
    • Case Study 1: Objectivity as Resolution Tool Provided Through A Neutral Expert
    • Case Study 2: Working Together
    • Case Study 3: Swift, Fair and Efficient: Awarding Compensation to Toxic Tort Victims
    • Case Study 4: Sequenced Regulatory and Insurance Negotiations
    • Case Study 5: How Communication Both Causes and Ends Conflict
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You are here: Home / Archives for environmental disputes

Learning To Make The Most Of Imperfect Evidence

May 20, 2016 by Lester Levy Leave a Comment

making-the-most-of-imperfect-evidenceCall 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…]

Filed Under: mediation Tagged With: environmental disputes, environmental mediation, litigation alternative, settlement

ADR Swiftly Compensates Parties in Mass Actions and Toxic Tort Cases

April 20, 2016 by Lester Levy Leave a Comment

Mass Actions and Toxic Tort CasesWe 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…]

Filed Under: Mediation vs. Litigation Tagged With: ADR, class actions, environmental disputes, mediation process, settlement, toxic tort

Our Environment is a Precious Resource and Should be Treated as Such

March 20, 2016 by Lester Levy Leave a Comment

Our Environment is a Precious ResourceA 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…]

Filed Under: Mediation vs. Litigation Tagged With: ADR, alternative dispute resolution, climate change, environmental clean up, environmental disputes, environmental mediation

Mediation Can Accelerate Cleanup

March 11, 2016 by Lester Levy Leave a Comment

Mediation Can Accelerate Cleanup

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…]

Filed Under: Mediation vs. Litigation Tagged With: ADR, alternative dispute resolution, environmental disputes, environmental mediation, mediation vs. litigation, New Jersey pollution, water contamintation

Using ADR to Resolve Mass Environmental and Toxic Tort Cases

January 25, 2016 by Lester Levy Leave a Comment

Mediation-Alternative-Dispute-ResolutionThere 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…]

Filed Under: Mediation vs. Litigation Tagged With: ADR, alternative dispute resolution, contamination, environmental disputes, environmental mediation

The Lawyer Who Became DuPont’s Worst Nightmare

January 19, 2016 by Environmental ADR Editor Leave a Comment

DuPont's Water ContaminationJust months before Rob Bilott made partner at Taft Stettinius & Hollister, he received a call on his direct line from a cattle farmer. The farmer, Wilbur Tennant of Parkersburg, W.Va., said that his cows were dying left and right. He believed that the DuPont chemical company, which until recently operated a site in Parkersburg that is more than 35 times the size of the Pentagon, was responsible. Tennant had tried to seek help locally, he said, but DuPont just about owned the entire town. He had been spurned not only by Parkersburg’s lawyers but also by its politicians, journalists, doctors and veterinarians. The farmer was angry and spoke in a heavy Appalachian accent. Bilott struggled to make sense of everything he was saying. He might have hung up had Tennant not blurted out the name of Bilott’s grandmother, Alma Holland White.

White had lived in Vienna, a northern suburb of Parkersburg, and as a child, Bilott often visited her in the summers. In 1973 she brought him to the cattle farm belonging to the Tennants’ neighbors, the Grahams, with whom White was friendly. Bilott spent the weekend riding horses, milking cows and watching Secretariat win the Triple Crown on TV. He was 7 years old. The visit to the Grahams’ farm was one of his happiest childhood memories. [Read more…]

Filed Under: In the News Tagged With: DuPont, environmental disputes, water contamintation

Why Mediation is Superior to Traditional Litigation: Putting Meat on the Bones

January 18, 2016 by Lester Levy Leave a Comment

mediation better than litigationI’d like to put some meat on the bones of the cost-saving aspects of environmental mediation.  I have argued that environmental mediation, properly executed, provides the opportunity to eliminate costs of duplicate work by multiple parties, while preserving every party’s right to negotiate hard on the merits of the dispute and to reach an agreed-upon allocation of the costs of dealing with the contamination at issue.  In this blog, I present a hypothetical situation – based on successful mediations I have conducted – to help the reader understand why I say this.

Consider the following:  There are 4 corner gas stations operating at 4 corners of an intersection.  A plume of petroleum contamination has migrated down gradient (downstream) in the groundwater and threatens to contaminate nearby drinking wells.  The governing environmental regulatory agency has identified each station as a potential contributor to the plume of contamination and has ordered that an investigation be undertaken to see where the contamination is located, how it got there, whether it requires a cleanup and, if so, what technology will be most effective.

Under standard practice, each party (station owner and/or operator) will hire a lawyer and retain an environmental scientist or consultant to perform the necessary investigation.  The consultant will investigate levels of contamination in the soil and groundwater beneath the site owned or operated by the party that retained it.  Each consultant will also install monitoring wells both above (up gradient) and below (down gradient) its own site to determine a number of things, including the areal extent of the plume, concentration levels throughout the plume, and whether potential off-site sources have contaminated that party’s property (thereby seeking to shift liability to other parties). [Read more…]

Filed Under: Mediation vs. Litigation Tagged With: environmental disputes, environmental law, mediation process, mediation vs. litigation

Why I Created this Website

November 16, 2015 by Lester Levy Leave a Comment

environmental mediation websiteI 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…]

Filed Under: Misc. Tagged With: ADR, alternative dispute resolution, environmental disputes, environmental litigation, environmental mediation

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About Me

lester-levy

I strongly believe in the value of mediation – said another way, environmental mediation really works. I would go even further: I believe that environmental disputes are perfectly suited to the mediation process – perhaps more so than any other area of legal practice. I have formed these views after mediating environmental cases for more than 20 years, throughout the United States, and having worked with thousands of lawyers, companies, insurance carriers, regulatory agencies and courts. My … Read more

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Lester Levy

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