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  • Writer's pictureCooper Shattuck

Mediation Myth: Environmental cases are too complicated for mediation.

Mediation is a popular means of resolving disputes for a variety of reasons. Many environmental matters never enjoy the time and cost-savings of mediated settlement agreements because they are perceived to be too complicated for mediation. While they rarely involve one claimant versus one defendant like most mediations, they can still benefit from the many advantages of a mediated settlement agreement.

Environmental matters have many stakeholders: state agencies, federal agencies, non-governmental entities, and private entities. Each of those stakeholders is often made up of a group or subcategories. For example, there may be multiple state or federal agencies, each with its own executive (director, secretary, etc.) and its own mission or agenda. And, the perspectives of the executive agencies and the attorney general’s office may be different, even in the case of the federal government.

While the decision-making authority may be vested in specific entities, such as designated trustees in the case of Natural Resource Damage claims, a failure to be aware of the other stakeholders can lead to problems.

In other types of environmental cases, there may also be potential private parties which may include individuals with personal injury or property damage claims, and private companies whether corporations, partnerships or other limited liability entities.

Mediation was made for multiple parties with multiple interests.

A forum where everyone’s interests can be addressed is most likely to lead to the wisest or most efficient outcomes, and the benefit of negotiated agreements allows more creativity than statutory or court-ordered schemes. Even when there is a requirement for court approval, getting the parties’ agreement and a position solidified by stakeholders who might otherwise object can save time and money in the long run.

Many find the number of parties and stakeholders too daunting and simply trudge ahead. But the number doesn’t have to be an impediment. Perhaps the process simply needs to be broken into stages or phases.

Maybe the potential responsible parties need to sort out their respective obligations. Or perhaps the liability of each can be addressed piecemeal. Maybe working something out with an NGO (potential objecting party) first can help with the governmental entities or with the responsible parties. There are many ways to slice the loaf of success. If one stage or phase isn’t successful, perhaps another will be and then the unsuccessful one can be revisited.

Having a mediator who thinks outside the box and who knows not just the substantive issues (which are important) but the interests and motivations of the various parties can help. What’s more, having that mediator involved from the beginning for each of the opportunities for mediation can save a tremendous amount of time, effort, and money. Let me know how I can help.


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