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

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You are here: Home / Archives for litigation alternative

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

The Best Weapon is to Sit Down and Talk

December 15, 2015 by Lester Levy 2 Comments

dispute resolution through mediationThe 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…]

Filed Under: mediation, Mediation vs. Litigation Tagged With: ADR, alternative dispute resolution, litigation alternative, mediation, resolution

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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

My Latest Posts

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  • Environmental Mediation: A New Paradigm for Resolving Multi-Party Disputes
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  • Leaving the EU would put our environment at risk

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Lester Levy

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