Environmental Mediation: Improve Decisions, While Saving Time and Money

Resolving a dispute through mediation can often help you meet your objectives, while also saving time and money. Mediation (or facilitated negotiation) has been used for many years to resolve environmental and natural resource disputes involving, for example, indemnification for contaminated site cleanups, permitting industrial facilities, regulatory enforcement, and landscape-scale concerns like water supply, timber management, and habitat protection.

Understanding the benefits and challenges of environmental mediation will help you decide when to elect it and how to navigate the process when another party or judge asks you to attend. Below, we briefly describe mediation, its use in environmental disputes, tips on how to participate in mediation, and where to turn for further information.

Why Mediate?

Some disputes require full use of the arduous litigation process. However, many environmental disputes are the result of poor communication and misinformation. Mediation is a dispute resolution process where a neutral third party (the mediator) helps disputants better communicate, share information, explore a range of settlement options, and strive to reach a binding agreement that meets everyone’s interests. In mediation, you remain in control over how to resolve your dispute – whether that means settling it through assisted negotiation or taking your case to trial. In this respect, mediation and litigation operate in tandem - litigation can provide the lever to bring people together. Where no agreement is possible, mediation can often clarify and narrow the issues for trial.

Environmental mediators are typically used to pursue a litigation settlement, but mediators are also involved in more upstream policy processes such as when the Environmental Protection Agency (EPA) tasks a group of stakeholders to negotiate a proposed rule for the Agency.

What is the Process?

The mediation process has three main stages beginning with pre-mediation activity where, among other tasks, you select a mediator and prepare records and objectives for mediation. The next phase is the mediation itself, which can last a few hours or several months, depending on the scope and complexity of your dispute. All parties and their representatives generally attend these joint sessions, but mediators may also hold private conferences with individuals. Finally, if and when an agreement is reached, the parties implement that agreement and evaluate it over time.

You can elect to mediate at any point in a dispute, but it is often best before or shortly after a lawsuit has been filed and prior to discovery. Early in the process, people's positions are often less entrenched, relationships may still be intact, and there is less vested in a litigated outcome.

Mediation is typically confidential, so you have greater leeway to share relevant information and explore settlement options without premature commitment. The process is also generally voluntary, so people who attend are often serious about settlement. Judges can also persuade and sometimes compel parties to mediate.

Why mediate environmental disputes?

Environmental disputes can be complex and driven by several factors that often overlap and reinforce one another. Mediation, while not without limitations, can offer some important benefits to overcome these difficulties.

• Multiple Parties: Environmental decisions can have transboundary and intergenerational effects, so many parties have a stake in these decisions and associated disputes. With multiple parties, complications can arise, such as the scope of an agency's authority, equal access to good information, the credibility and communication skills of parties, and power struggles between factions. Mediators often help people navigate this complexity by, for example, creating a neutral forum for discussion, appointing representatives and managing emotions to keep people focused on problem-solving. Sometimes, mediators help people maintain or enhance relationships with others, and better relations can improve how an agreement is implemented and how people handle future disputes.
• Resource and Power Disparities: With multiple parties, resource and power disparities often arise, which can limit trust and respect between people and drag out a decision. Mediation does not eliminate power or resource differences, and may save everyone time and costs. In confidence, experienced mediators can also help people better evaluate the strengths and weaknesses of their positions, particularly when they have no legal advisors. In the end, many believe a shared agreement made in mediation is better than an imposed decision from court, irrespective of resource or power differences.
• Uncertainty: Scientific and technical uncertainties and complexities are common in environmental decisionmaking, so people often act with imperfect knowledge about the impacts or risks of an industrial practice or resource use. Mediators can sometimes help people agree on a shared expert or, where new knowledge is needed, agree on a joint fact-finding process. Collaborative learning in mediation can often translate into more flexible or adaptive agreements that account for changing conditions and new information.
• Values Conflicts: Environmental disputes can spotlight the different values we hold toward environmental risks or resource development, particularly when dealing with impacts to minority populations, abnormally dangerous activities or loss of wildlife. Value differences can pit people against one another in personal ways, which can lead people to act unreasonably, without compromise or to conflate the substance of a dispute with a personal vendetta. Mediators promote dialogue, and through dialogue, people often realize their values are not diametrically opposed. Mediators have also shown how value differences can forge long-term partnerships, as people from different backgrounds acknowledge the need to work together and to develop shared goals that transcend their differences.
• Government Involvement: Many environmental cases, including enforcement actions, involve local, state, or federal government, and negotiating with the government is different than negotiating with anyone else. For instance, sometimes government negotiators do not have settlement authority or the ability to explore "out-of-the-box" solutions to problems. Further, a supervisor might delay or reverse an agreement negotiated by his or her staff, which can make the process feel unfair and arbitrary. Mediators can often help people weather these and other difficulties by, for example, clarifying the objectives of an agency, the nuances to its decisionmaking, and managing negative feelings that may otherwise throw negotiations off track.

These and other benefits to mediating environmental disputes should be kept in proper perspective: mediation can be costly, time consuming and frustrating when you traverse a range of settlement ideas, but fail to reach consensus. Mediation is also less appropriate when you seek to establish or change the law through judicial decision. Nonetheless, judges and juries can be unpredictable and, through mediation, you can sometimes achieve your objectives in a way that meets or exceeds even a favorable judicial outcome, without the risk of litigation.

Where is Environmental Mediation Taking Place?

Mediation takes place in a variety of legal and administrative settings, and you or your attorney can often find a mediator with environmental expertise in any one of these settings.

• State Trial and Appellate Courts: Many state courts have court-connected mediation programs with in-house or external mediators who are either volunteers or are paid by the court or the parties on a case-by-case basis. In some cases, attendance in mediation is mandatory, because disputants can often find common ground on some or all of their concerns, even if they think continued negotiations are in vain.
• Federal District Courts: Several federal district courts have some form of court-connected mediation. For example, in certain cases filed in the Federal District Court of Oregon, counsel must confer with one another to discuss whether their case would benefit from private or court sponsored mediation or other forms of alternative dispute resolution. That court, on its own motion, or motion of another party, may refer any civil case to mediation – the court generally refers cases with financial resources to private mediators, whereas cases with limited financial resources are referred to the court's panel of volunteer mediators.
• Federal Appellate Courts: All of the federal circuit courts have court-connected mediation programs and many employ expert staff mediators who provide services for free. The Ninth Circuit Court of Appeals, for example, has 10 full-time mediators who are experienced litigation attorneys with extensive training and experience in negotiation and mediation. When cases are filed in that court, parties, their representatives and court staff discuss the mediation option and, if viable, proceed with mediated settlement discussions. Of the cases going to mediation, most settle, which suggests that mediation can be very effective, even at the appellate level.
• Federal Agencies: Some state and federal agencies have very significant mediation programs. The EPA's Office of Administrative Law Judges, for example, offers mediation to parties in almost every case filed before that court. Where parties agree to mediate, one of the Office's five judges will serve as a neutral. The office first offered mediation in a few select cases in 1997, but it is now used in essentially every case. The EPA also maintains its Conflict Prevention and Resolution Center, which provides a variety of services to enable the use of mediation and other dispute resolution techniques in contexts ranging from rulemaking to stakeholder involvement. Other federal agencies like the Department of Interior and the Forest Service maintain similar programs.
• Others: Numerous environmental mediation services are available. You can generally find a private mediator with experience in almost any state and subject matter. For example, the non-profit group, Resolve, provides environmental dispute services regarding legislation, litigation, public/private partnerships, and regulatory, planning and permitting decisions. The U.S. Institute for Environmental Conflict Resolution provides similar services where there is a federal agency or interest.

How to Engage in Mediation?

There is a wide range of advice about how best to engage in mediation. Here is the big picture: be prepared, be ready to listen and be willing to problem-solve.

• Prepare:  Work with your advisors to evaluate the costs and risks of litigation. Select an appropriate mediator; compile documents and information needed in mediation; ensure all relevant parties participate in the process; summarize the objectives you want to achieve; and evaluate settlement options through the lens of others.
• Listen: Disputes are exacerbated when communication breaks down and mediators are called for help. While nearly all disputants have listened to their adversaries before, mediation often provides a new forum to open up the lines of communication, build each party’s understanding of the dispute, better defines the positions and interests of others, and the prospects for settlement. Through listening, you might better pinpoint the range of issues driving a dispute, including those that have not yet been voiced.
• Problem-solve: Take advantage of the confidential and non-binding nature of mediation to discuss a range of settlement options. Remember, mediators can sometimes help people overcome problems that at first seem intractable. Look to develop skills and relationships from the process to address future disputes involving the same or similar parties.

Conclusion

Environmental disputes can be difficult to resolve for a number of reasons, including the involvement of numerous parties, resource and power disparities between these parties, scientific uncertainties, values conflicts and government involvement. Mediators can often help minimize these difficulties and help you resolve disputes in a way to meet your interests, while potentially saving time and money.