mediation Archives - Environmental ADR

Flexibility Is Key to Success in Mediation

June 13, 2016 by Lester Levy Leave a Comment

“If it bends it’s funny; if it breaks, it isn’t.”

Woody Allen, from Crimes and Misdemeanors

Flexibility is one of the most important attributes we need to develop in life. As Woody Allen reminds us, it is what separates comedy from tragedy; it’s what allows us to continue moving forward, without breaking, through the adversities we face in every day life.

Flexibility is also one of the key attributes of mediation. It is an integral part of what makes mediation a powerful alternative to traditional litigation. In the mediator’s toolkit, there is nothing more essential than the ability to approach each dispute without preconceptions about the best path forward for resolving the conflict.

To illustrate the paramount importance of flexibility in mediation, I want to share with you my recent experience when I was asked to mediate a case between a university, the city and county in which it was located, and concerned groups of citizens. The parties were embroiled in controversy involving the university’s multi-year expansion plan and its potential effects on resources such as water, housing and traffic.

My first step was to meet separately with each party before I convened a joint session with all stakeholders. This is an initial step I frequently find to be useful in multi-party disputes. It allows me to meet and discuss privately with each constituency their respective views on the history of their dealings together, including their inability to come to an agreement among themselves, to identify the impediments to settlement, including views and misconceptions they hold about other parties, to learn what are important elements of a successful negotiation, and to hear their personal ideas on workable settlement structure and content – their wish lists.

In this particular case it soon became apparent that the inability to reach agreement prior to the mediation was due in large part to their inability to communicate clearly and comfortably with one another. Past dealings and strongly held personal viewpoints had interfered with the exchange of proposals, the parties’ respective views on the proposals and parties’ making them, and their ability to respond in ways that propelled negotiations forward, toward settlement.

I decided that establishing a framework for settlement called for separating the present negotiation from past efforts. We accomplished this by starting off with a session aimed at dispelling misconceptions which I had observed, beginning to build trust in the process, and even though it was early in the process, starting to map out the zone of potential agreement. The parties found this to be a hopeful start. [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…]

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 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…]

What Is the Added Value of the Mediator In Getting Cases Settled?

February 5, 2016 by Lester Levy Leave a Comment

What Is the Added Value of the Mediator In Getting Cases Settled? It is important to note that mediation is a tool that can help in some but not all cases. Lawyers and clients settle cases everyday without the assistance of a mediator. Clearly, mediation is not warranted in those cases and is not intended to replace what lawyers do well on their own. In fact, most cases reach resolution in this way, and that is a very good thing.

However, there are cases where the parties are having difficulty engaging in meaningful settlement dialogues. There are many reasons for this: opposing lawyers or clients may have difficulty communicating with one another, or the parties may have reached and impasse and are unable to overcome it. Whatever the reason, mediation is a cost effective step towards resolution instead of proceeding to long and costly battle in court.

So what does a mediator do and how does he or she do it?

At the outset I must note that in most cases, a mediator has one day, or less, to cover a lot of ground. In contrast to the disputants’ long-term involvement with the case and with each other, a mediator has a relatively short amount of time to develop a relationship of trust with the parties, to master the key facts and law sufficiently to reason with the parties, to grasp the underlying dynamics between the parties, to recognize the impediments to settlement, to identify the “zone of potential agreement” and coach the parties into overcoming the obstacles to getting there and to prepare, offer and consider reasonable settlement proposals and counterproposals that might work. [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…]

How to Think About Picking and Using a Mediator?

October 22, 2015 by Lester Levy 1 Comment

There are many facets to this question. There are hundreds of articles on the internet and in other publications which list important considerations like experience, competency, subject matter expertise, style, track record, cost, etc. These are all very important factors. No doubt.

I come at this question a little differently because many of the cases I work on are multi-faceted and involve an extensive cast of parties with divergent interests. In these cases, I think it’s important to step back and carefully consider what is impeding settlement. Is there a fundamental disagreement on valuation, or perhaps it has proven unusually difficult to communicate effectively with other parties, or else maybe there are client relationships interfering with the negotiations? It’s much easier for a third party mediator to objectively assess the dynamics of the dispute.

[Read more…]