Using Mediation in Multi-Party Environmental Disputes

In environmental disputes whether small, private cases or Superfund cases involving the federal government, it is not uncommon for many parties to potentially be at fault for the incident at hand. Determining fault in the courtroom can cost hundreds of thousands of dollars, take years to complete, and is stressful for both attorneys and clients.

Alternative dispute resolution methods are excellent tools for cost allocation in environmental disputes, including Superfund cases. These methods, such as mediation and arbitration, provide an expedited, less formal method of resolving environmental cases.Rather than spending months in a courtroom to have a judge determine cost allocation between the parties, the parties can decide to mediate or arbitrate the issues and finalize a cost allocation plan in perhaps a few months.

A skilled mediator or arbitrator with knowledge of environmental laws is a valuable alternative to the courtroom, whose judges and juries typically are not scientific experts. Such a third party neutral will effectively explain the strengths and weaknesses of each party’s position to all parties involved, which can expedite settlement. In addition, environmental experts may be hired to assist the mediator with complex scientific data. Both the expert and the third party neutral can evaluate the data in an unbiased manner to determine liability and assist with cost allocation.

In alternative dispute resolution, the parties can negotiate a cost allocation plan themselves with the assistance of the third party neutral. Each party will have input into the plan, and the neutral can provide the strengths and weaknesses of each party’s ideas. In the end, a cost allocation plan that takes the concerns of all parties into account can be created. When the cost allocation plan is finalized, there are no surprises: each party will have an understanding as to the rationale behind the plan. When parties are fully involved in the creation of a cost allocation plan, it is more likely to be successful.