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.