| Bar Bulletin |
June,
2004 |
BAR BULLETIN FOCUS
June 15, 2004 |
Environmental Law |
MEDIATING MESSES: A BLUEPRINT FOR
MEDIATING ENVIRONMENTAL DISPUTES
By Randall M. Lutz, Patricia McHugh Lambert and Susan M.
Euteneuer
By Randall M. Lutz, Patricia McHugh Lambert
and Susan M. Euteneuer
Sludge. Hazardous waste. Chemicals with names too long too pronounce, much
less to spell. Add the high costs of litigation due to vigorous attorneys
with a “take no prisoners” attitude and zealous regulators. Couple this
with a dash of publicity and a helping of uncertainty and one has the
makings of a toxic goulash nightmare for a client.
Too often, environmental cases are seen as cases that are unique,
overwrought with technicalities and within the exclusive purview of super-brainiac
trial lawyers. Consequently, the perceived “specialness” of environmental
cases often leads the client, regulators, attorneys and the courts to
overlook opportunities to resolve cases early by mediation.
While using “mediation” and environmental case in the same sentence may
sound like heresy to some, mediation, even early in a case, often makes
sense. Mediation can stop the clock running on the inevitable paper chase
on formulaic and supercilious legal arguments, avoid having experts
duplicate work and allow for more focus on the important matter of
remediation.
This is not to say that mediation of an environmental case is easy.
Sometimes environmental lawyers with visions of billables dancing in their
heads are reluctant to suggest mediation at an early stage. Sometimes
courts are reluctant to push parties too hard on technical and scientific
issues until the very end of discovery or delegate to special masters
because of the complexity of the issues. Sometimes clients fear mediating
with someone who does not know the difference between Percocet and
perchloroethylene. Mediation can, however, be particularly effective in
resolving environmental cases earlier in the process, provided a few
points are considered.
Getting the buy-in. To clients (and their in-house counsel),
there are many very appealing aspects of mediation in an environmental
case (and very few downsides). They want to control fees, costs and
uncertainty. The prospective investment of time by clients and their
employees in litigation can be enormous. However, many clients do not know
that early mediation is an option. Lawyers do not like to appear weak by
suggesting mediation at an early stage of a potentially complex matter.
Nevertheless, courts, administrative agencies, insurers and even clients
should consider requiring the parties to sit down and attempt to resolve
issues early on in a dispute. Repeated sit-down meetings should be
encouraged throughout the process.
Getting to the appropriate mediator. No one wants to negotiate a
multimillion dollar environmental case before a mediator who has only
tried soft-tissue accident cases. Environmental cases require a mediator
who by training, experience and temperament can handle difficult
scientific and legal issues, as well as difficult personalities. The
Environmental Protection Agency (EPA) offers “in-house neutrals” as
mediators, though even the EPA recognizes the limitations of that program.
There is also a growing group of private mediators who specialize in
helping parties resolve environmental disputes. It is imperative to select
an active and assertive mediator, rather than a passive participant.
Getting everyone to the table. Getting everyone to the table is
often a Herculean task in an environmental case. Once the parties and
their attorneys have bought into the process and selected a mediator, the
technical experts, insurers and regulators will play critical roles in the
mediation. In order for mediation to be effective, the battling experts
must be involved both before and during the mediation. Unlike attorneys,
practicing environmental scientists tend to narrow the technical issues in
dispute among themselves, rather than employing an all-or-nothing
approach. This is because such scientists often use the same methods and
rely on the same universally-accepted group of authorities. Insurers who
are paying the litigation bills and may have exposure for a judgment must
also participate in the process. Some courts even mandate a representative
with authority to be present in order to keep the process moving.
Regulators may also be involved, e.g. to work out remediation standards
(“How clean is clean?”).
Getting to the issues. Notice that the heading states “issues.”
Environmental cases are often too big and indigestible to swallow whole in
an early mediation, or in mediation at all. Nevertheless, there may be
smaller, more dissectible issues that could be resolved. A segmented
approach can be very effective in CERCLA (Comprehensive Environmental
Response, Compensation and Liability Act) cases, which lend themselves to
mediating issues of liability, categories of potentially liable parties
and shares of remediation costs in stages. Getting to the issues takes
work, preparation, an agenda and a good-faith commitment to the mediation
process.
Getting creative. Unlike litigation, mediation provides everyone
with the opportunity to promote a creative settlement. Unique remedies
such as alternative forms of remediation, structured settlements,
indemnities, insurance buyouts and confidentiality agreements can be part
of mediated environmental resolution. Such solutions are most easily
achieved before parties become overly entrenched in their positions and
expend substantial funds in the litigation.
With these points in mind, mediation in an environmental case can create a
win-win scenario – the cleanup occurs quickly and at a substantially
reduced cost.
The authors are attorneys with Hodes, Ulman, Pessin & Katz, P.A.
Randall M. Lutz, Co-Chair of the firm’s Real Estate and Environmental
Practice Group, is a trained mediator for the Maryland courts and has been
practicing environmental law for 30 years. Patricia McHugh Lambert, Chair
of the firm’s Insurance and Financial Services Practice Group, has 20
years of experience in business litigation, environmental and insurance
matters. Susan M. Euteneuer is a former insurance claims professional in
environmental and coverage matters whose legal practice focuses on
environmental and insurance law.
