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

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    • What types of Environmental Cases can be mediated?
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    • 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
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    • Case Study 5: How Communication Both Causes and Ends Conflict
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You are here: Home / Archives for settlement

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

Mediation Agreements with Basic Rules Can Increase Chances of Success

May 3, 2016 by Lester Levy Leave a Comment

Mediation-AgreementsThere are no universal rules governing mediation agreements.  Individual ADR providers have policy statements about the conduct of their mediators.  State and federal bar associations publish ethical rules for mediators and mediation advocates.  But there are no rules mandating specific steps that must be taken during any particular mediation – nothing akin to the stepwise procedural rules, which govern judicial proceedings. Like everything else there are benefits and shortcomings associated with this.   I believe that the positives that are created by mediation’s flexibility greatly outweigh the negatives associated with having few procedural rules.

On the plus side, mediations can and should be designed to meet the specific needs of the parties and the dispute. Properly designed, mediations cut to the core of the dispute and resolve it without unnecessary and expensive litigation tactics and discovery.

Recently, however, I have witnessed some trends, which highlight the potential downside resulting from mediation’s lack of strict rules and formal procedure.  I have written about these in prior blogs, including attendance without reasonable levels of authority to settle, party specific mediation strategies that mirror litigation tactics – to which mediation is intended to provide an alternative – or treating mediation as merely another procedural step in the litigation process by “going through the motions” and appearing to mediate without any real intent to reach resolution.

Don’t get me wrong. I still don’t think that the practice of mediation would be well served through the creation of a uniform set of rules that would govern each and every mediation.  The cure in that case would be worse than the disease.  Flexibility, being one of the most potent of mediation assets, would thereby be eliminated – making it much less effective as an alternative to trial and its unyielding set of mandatory procedures.

Instead, I believe, at least in some instances, the parties to a dispute should consider entering into an agreement to mediate, as a preliminary step, in order to establish some basic ground rules and insure a framework that will give mediation the best chance of success.  This practice – of entering into a preliminary agreement to mediate — has already been used effectively in at least one area of law, namely couples seeking a collaborative divorce.  The primary purpose of entering into such an agreement to mediate is that it binds the parties and their counsel to pursue a negotiated settlement as a preferred and true alternative to litigation.  In the context of a collaborative divorce, counsel sign the agreement to mediate and agree not to represent their client in a contested proceeding, in order to insure alignment and commitment to the process of all parties participating in the negotiation.  In a number of jurisdictions, this type of agreement has proven to be highly effective in streamlining the process for couples to resolve contentious issues and obtain a legal divorce, substantially reducing the time and cost necessary to do so.

I’m not aware of any instance in which parties to a commercial dispute have entered into this type of agreement to mediate but there’s no practical or legal reason that it wouldn’t prove equally effective in various commercial contexts.  I think it would prove particularly valuable if deployed among the parties in conflict, because it provides a framework to bring numerous parties together, notwithstanding their divergent agendas, in the common pursuit of a negotiated resolution.  Putting an agreement to mediate in place up front would serve the salutary purpose of binding everyone, including counsel, to give mediation a real chance to work.      

As I see it, in a commercial context an up front agreement to mediate would contain a few important covenants that evidence each party’s commitment to the process, such as the following:

      1. We are coming to mediation to resolve as much of the conflict as possible. We understand that the process involves a serious effort to negotiate settlement and to consider all rational compromises in order to get there

      2. We will bring with us all decision-makers necessary to sign a binding memorandum of agreement, or similarly binding settlement documentation

      3. The decision-makers in attendance will have authority to settle.  (Note that I have avoided using the phrase “full and complete authority” because it is hard to pin down.  It is difficult to know in advance of the mediation the precise authority that will be sufficient to satisfy your opponent.  However, compliance with this commitment requires us to make good faith estimate of settlement value and to ensure our ability to make a binding offer based on that estimate before we arrive.)

      4. If we are coming to the mediation without the ability to negotiate or without the intention of offering anything of substantial value, we will inform our opponents and the mediator so that no one will be surprised and each party can decide for itself whether proceeding further in mediation makes sense.

      5. Finally, counsel agree to pursue mediation as a vehicle to resolve the conflict and not to commence litigation or represent their client in any legal proceeding that may be brought with respect to the pending dispute.

It is the final provision that has proven essential in establishing collaborative divorce as a viable and cost-effective means for resolving the bitter fights over custody and child support.  Of course, clients themselves still retain their rights to pursue court action whenever they deem it necessary; however, they must retain other counsel if and when they chose to do so.  Consequently, under the agreement to mediate, everyone participating in the mediation, including counsel, will be similarly aligned and incentivized to pursue a negotiated solution as a first and preferred alternative.

As I see it, these types of agreements serve a potentially constructive purpose by creating a proper atmosphere in which mediation will have the best chance of success.  It is somewhat akin to the way saloons were operated in the Old West – parties took off their guns and holsters before they sat down to a poker game, in order to prevent disagreement from quickly escalating.  Cutting off quick and easy recourse to the courtroom may serve a similarly salubrious purpose – not so much saving lives as saving time and money and ultimately enabling the parties to find workable common ground to resolve their disputes.  It’s worth serious consideration, in my view.

Filed Under: Mediation vs. Litigation Tagged With: mediation process, mediation vs. litigation, negotation, 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

An Alternative Approach to Reaching a Settlement in Mediation

February 29, 2016 by Lester Levy Leave a Comment

Reaching Settlement through negotiation

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…]

Filed Under: mediation Tagged With: ADR, mediation, mediation process, mediation vs. litigation, negotation, negotiate, settlement

Using ADR to Manage Compensation Schemes with Mass Claimants

February 16, 2016 by Lester Levy 1 Comment

Compensation Schemes with Mass ClaimantsRecent 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…]

Filed Under: Process Tagged With: alternative dispute resolution, class actions, compensation, environmental clean up, mediation, mediation process, settlement

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?   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…]

Filed Under: mediation, Mediator's Role Tagged With: mediation, mediation process, mediation vs. litigation, role of mediator, settlement

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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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