MEDIATION OUTCOMES: Binding Agreements Crafted to Address the Questions Presented by Each Case
Inherent in mediated outcomes is a lot of useful and practical flexibility. Every legal issue presented to a judge or jury can be resolved through mediation – with several important differences. First the parties agree among themselves how that issue resolves, rather than leaving the answer to a third party. In so doing they keep control over the result rather than leaving themselves open to a much less favorable outcome chosen by someone else. Or the parties can agree to a method for resolution that derives from the core of the dispute, such as scientific differences or actual costs and effectiveness of future cleanup results. In contrast, court outcomes tend to be much more austere and lacking in refinement due to mandatory adherence to procedural and evidentiary rules.
A mediated outcome also 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 environmental situation may involve civil suits among the private parties seeking an allocation of fault and payment for the cleanup, enforcement or penalty actions brought by environmental regulatory 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 has jurisdiction over all these cases. 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 point that meets the interests of all involved.
Optimally, agreement(s) reached at the conclusion of the mediation are binding written contracts that resolve all disputes over past costs and future obligations arising from the contamination at issue. These are voluntary agreements fully informed by a clear understanding about the extent and costs of cleaning up all contamination, anticipating future events, as much as possible. In addition, many mediated environmental agreements include ancillary accords, which resolve party-specific disputes over insurance coverage, which further promote comprehensive settlements. These agreements often are based upon regulatorypre-approval of work that will result in a “no further action” if successfully completed as anticipated by the parties. The settling parties also receive broad contractual releases and contribution protection, including judicially sanctioned good faith settlement bars, against future liability.