Successful Mediation in Complex Environmental Cases

Mediation is generally thought to be a faster, cheaper and less risky alternative to arbitration or litigation.  It also enables he participants to control their own destinies to a large extent.  A well trained mediator presents an impartial facilitator who can help parties move toward a final resolution of their dispute.  A good mediator must understand the nature of the dispute, each party’s interests and often be creative in helping the parties reach an agreed resolution.

Environmental disputes are among the most complex and challenging to resolve.  These disputes often include discussions of science, property, economics, personal interests and legal or regulatory requirements.  Occasionally, civil or criminal fines and charges may be involved. Mediating parties are often emotionally invested and can include individuals, entities, industries, family properties and government agencies.  Many times more than two parties are involved in the dispute.  Environmental disputes often include interpretations of statutory laws and regulations, multiple jurisdictions, and physical assessments and assumptions.  Resolution of the disputes often can impact the general public and almost always involve an assessment of potential risks to human health and the environment moving forward after the mediation.  Resolution of many environmental disputes may be especially expensive to resolve and involve years of active remediation and monitoring.

As many environmental disputes involve government agencies, the regulators should have some involvement or input in the mediation, either directly or indirectly, as they will often control at least a portion of the resolution.  Environmental consultants for each side regularly have performed sampling and testing of the impacted media and issued reports with sometimes opposing conclusions.  Often, these opposing views are founded on issues of scope, scale, methodology and assumptions from the available data.  Depending on the dispute, having the consultants appear in person at the mediation can often lead to a more accepted understanding of each party’s differences and eventual resolution.  Involving a neutral expert agreed to by the parties at some mediations with dueling consultants may also be one way of helping the parties understand the extent and nature of each side’s contentions.

Because of the complexities involved in many environmental disputes, the mediations may extend for several days or consist of days of mediation several weeks apart as the parties move toward a final resolution.  While this can increase the mediation costs, the mediation is almost always going to be a significantly less expensive alternative to arbitration or litigation.

Certain elements present at the mediation of an environmental dispute are essential for the mediation to be successful.  These elements include:

1. Having the proper stakeholders present at the mediation;
2. The parties having a reasonable understanding of the matters in dispute and potential available resolutions;
3. The parties presenting a well thought out position paper to the mediator, with any significant exhibits attached, a sufficient time before the mediation occurs to allow the mediator to effectively review the materials and ask any pertinent questions;
4. Having necessary regulators or consultants available, directly or indirectly, to address any potential questions or resolution of the dispute;
5. Determining early in the mediation what facts and opinions the parties can agree to and which remain to be resolved;
6. Having an understandable and enforceable basic written agreement prepared as appropriate to memorialize the parties agreement at the end of the mediation or in paring down the issues remaining in dispute; and
7. Having a mediator who understands the dispute and each party's interests, potential resolutions, thinks creatively and is committed to helping the parties reach a mutual resolution.

The author has been a practicing attorney for more than 25 years, with a focus on representing clients in environmental and commercial disputes. Mr. Flowers has also served as the mediator in a wide variety of cases for more than 10 years. He can be reached directly at bflowers@krcl.com or 214-777-4206.