The issues which underlie environmental disputes are better resolved though mediation than through trial because “trial procedures” are not designed to address the substantive and procedural complexities these cases present. Science is very useful in helping to:
- assess liability (who is responsible for causing the contamination) and
- allocate responsibility (how to apportion the costs of investigation and cleanup among multiple parties)
Environmental science (including hydrogeology, chemistry, engineering) is key to determining where the contamination is located, what kind of contamination it is, how much of it is located there, if it is moving and what are the best (most efficient and cost effective) methods for cleaning it up
Mediation provides a private forum where the key issues can be thoroughly examined and professionally debated by the disputants themselves, their colleagues and experts without having to conform to formal rules of evidence, and can be resolved through voluntary and informed agreements specifically tailored to each case and not limited by pre-determined “court remedies”
In most cases, mediation is cheaper (certainly, the dollars are spent more directly on resolving the important issues at hand), it creates a more effective and rational result, it does not escalate disagreements into more destructive conflict – and may serve to build trust among the participants
Environmental mediation allows – indeed encourages – the participation of insurance carriers in helpful ways that are not available in court. Insurance coverage is often needed – if not critical — to help fund necessary levels of investigation and cleanup, because parties want to access the insurance dollars that are available to them under polices currently in effect or which they had purchased in the past
Also, because potentially responsible parties and businesses may be insolvent or no longer in existence (e.g., historical owners, operators or generators)(read: gas station or dry cleaner contamination cases often involve parties who are deceased or have no assets other than the insurance policies they bought when they were in business)
Risk management and control: these disputes involve high risks and high transactional costs (read: there often is a lot of money at stake and these cases are very expensive to try in court)
Cleanup efforts can take many years to complete so it is a best practice to negotiate a comprehensive agreement, based on realistic future projections of the time and money required (e.g., costs and efficacies of remedial alternatives) (read: most environmental settlements involve work to be done, money to be paid and other required actions into the future – these are better handled through negotiation rather than judicial fiat)
