role of mediator Archives - Environmental ADR

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.

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.

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…]

The Nit and Gritty of Mediation

October 22, 2015 by Lester Levy 1 Comment

Many lawyers adopt a simple approach to settlement negotiations. They play a game of splitting the difference. Once the two sides have established a bid and ask or otherwise defined the top and bottom of the range, settlement talks consist of each side taking a step towards the middle. If one side makes an offer 5% closer to the mid-point, then the other side responds with a similarly proportioned counter-offer. This sort of negotiation can take on a mechanical or even ritualistic flavor and a mediator’s role can be limited to just “carrying water” from one room to another.

But an effective mediation involves more than that and a good mediator is never content simply carrying water. Opening way high, if you’re on one side, and responding way low, if you’re on the other, does little to get cases settled. No meaningful messages are sent because both sides have evaluated the case beforehand and know that overly high or low proposals are just that – proposals that have no chance of success and do not invite the other side into a meaningful negotiation.

[Read more…]

Environmental Mediation: A New Paradigm for Resolving Multi-Party Disputes

Flexibility Is Key to Success in Mediation

NY Peace Institute Police Mediation Trainings

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

The Nit and Gritty of Mediation

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