MEDIATING ENVIRONMENTAL DISPUTES

Such is the life of many experienced attorneys with environmental and natural resource practices, or insurance litigators facing environmental law issues: long-standing cases involving complex issues, often involving multiple defendants, experts and insurers, with an overlay of a myriad of cross and counter claims and motions galore. It is not unusual for a case to drag on for many years, and in some cases over a decade. Kids in grade school learning long division (do they still teach that?) when the case started are now in college. Litigation costs, whether it be attorneys’ or experts’ fees, quickly add up, outpacing any economic benefit that may be realized by prolonging the matter.

Yet, a majority of those cases are amenable to resolution through mediation, with the participation of both a mediator experienced in the substantive elements of the dispute, and parties to the litigation willing to engage in a good faith effort to resolve the matter. Achieving a successful result takes hard work, on the part of both the mediator and the parties. The fact that the dispute revolves around environmental and natural resources issues adds layers of complexity not encountered in a typical business or commercial dispute. The question is how best to navigate those practice-specific issues to increase the probability of reaching a resolution.

What is it about environmental disputes that sets it apart from other areas of law? First is the complexity of the law itself. Environmental regulations are detailed, voluminous, and complex. The rule against perpetuities has nothing against many environmental regulations. Attempting to unearth insurance policies that go back decades is typical. Endangered species cases need to deal with an array of scientific and regulatory issues. Having counsel, insurers, and a mediator that can speak the same regulatory, technical, and insurance language goes a long way towards at least having a common understanding of the lay of the land. It also sets a solid foundation upon which the mediator can speak directly with the principals of each party, and insurers, to explain in plain English the mediator’s assessment of the matter.

The other significant difference between environmental disputes and others is the underlying facts themselves. Many environmental disputes center on legacy contamination. Current owners, themselves liable parties under CERCLA, seek cost recovery from prior owners, operators, or generators. All parties make contribution claims. Assessing contaminant origins, fate and transport, and allocation, takes center stage. The operations associated with the initial contamination and hazardous substance releases may stretch back decades. An environmental forensics assessment may only go so far. Records are sparse, and workers or officers associated with those long-ago operations are deceased, and even if they can be located, may have little useful recollection of events, much less necessary specific information. In cases involving natural resource issues, understanding species biology and habitat parameters can be complicated, as is the interplay between species and wetlands regulation.

I have written in the past about including parties’ experts in mediation (https://www.jabmediation.com/blog). Having a mediator who can both speak the same regulatory and technical language as the experts, and understand the technical issues, can both expedite and facilitate productive settlement discussions. That experienced counsel tend to be involved in these cases furthers the opportunity for a successful resolution. And remember, as discussed in the article linked above, all communications as part of the mediation, including any discussion with or among experts, remains mediation confidential.

That environmental or natural resource dispute mediations will typically not conclude in one day is an understatement. However, with the necessary motivation of the parties, and participation of a mediator that understands the issues, a successful resolution can be reached efficiently and fairly.

I would be happy to discuss with you any disputes you are involved in, and how mediation may be a vehicle by which to effectively resolve the matter. I can be reached at josh@jabmediation.com  or 510-495-0418. Please visit my website at www.jabmediation.com for further information.

MEDIATING EXPERT-INTENSIVE DISPUTES

 Varying perspectives on central technical or scientific issues is a common thread among many environmental and natural resource law disputes, but is of course equally applicable to disputes in many other disciplines. It’s a familiar dynamic. A case involves highly technical matters, whether it be contaminant forensics, chemical fate analysis, health effects from exposure to pollutants, risk-based assessments, or for that matter any matter involving technical or expert issues. You hire top experts to advocate for your client’s position. So does the other side. All of those experts essentially have available the same information and data. Yet, they come to diametrically opposed positions. They prepare their expert reports. Depositions follow. Positions harden and litigation proceeds. The trial date approaches. The cost keeps going up, but no resolution.

A critical consideration is what role do those experts play when the parties are engaged in mediation efforts to resolve the dispute. As a mediator, I of course want to understand the perspective of each respective expert to better assess the strengths and weaknesses of each party’s case, help synthesize the central issues, and assist the parties in exploring ways to resolve the matter. However, simply hearing a party’s lawyer telling me what the expert thinks, or even reading expert reports or advocacy pieces, only goes so far. What is more meaningful in many cases is having the expert directly engage in the mediation.

There are a number of factors that must be considered before having experts participate in the mediation, and assessing how that participation should be structured. As an initial matter, it must be determined whether the dispute itself revolves around the technical issues to begin with. If not, no need for expert participation. If the technical issues are directly relevant to the dispute, the most benign structure is simply to have the experts sitting in the room with their clients during the mediation session, and having no interaction with the other parties. Each party’s experts will in that scenario explain to the mediator why their conclusions are correct and the other experts are wrong. Helpful to some degree, but there are even more robust options that may further dispute resolution.

In many cases, experts are talking past one another. Where the parties have proceeded under the construct that there are a multitude of disagreements among the experts, in some instances it turns out that there is actually less disagreement than first appears. Having the experts from the various parties together at some points during the mediation, under the direction of the mediator, may enable them to determine where there may be less disagreement than initially thought, and get to the root of the real and determinative differences. The mediation can then focus on those issues more directly and efficiently.

Of course, there naturally will be some reluctance to having the opposing experts engage with each other. Although mediation confidentiality will prevent any statements of an expert from being used against that expert, that does not address the fact that the discussion itself may clue one side into strategies and positions that the other side has no desire to share. That is where ground rules, agreed to by all counsel and the mediator, must be established to ensure no side is giving away anything it does not want disclosed. That said, by the time that mediation session occurs, it is likely that each expert knows full well what the other expert’s position is, and the bases of that position.

Whether it makes sense or is appropriate to have experts participate at all in the mediation, and if so, whether to bring the competing experts together in the same room, must be made on a case-by-case basis, and have the complete buy-in of the respective parties. But it should at least be considered, and in many cases can further prospective resolution.

The take away from this is that no two disputes or mediations are the same. Each has its own issues, flow, and personality that must be taken into account when considering how best to structure the mediation in a way to increase the chances of success.

Please contact me at josh@jabmediation.com to discuss your specific situation.