Preparing Yourself and Clients for Environmental Law Mediation

Environmental lawyers in the Midwest and Chicago in particular are not as used to mediation of disputes as their Eastern or Western counterparts.  However, the picture is changing.  Importantly, an experienced mediator who understands the tensions and issues that are going on in a dispute, such as the unknowns of what remedial activity will be needed, or whether there could be State or federal governmental concern, is able to suggest creative and satisfactory solutions. Many clients worry about mediation because it is foreign to them.  Describe the mediation process, its confidentiality guarantees, and its setting.  Explain that mediation is more relaxed than court, and that settlement proposals that are discussed at mediation cannot be introduced in your client’s case later, since they are barred by mediation and settlement privilege. It is also important to encourage your client to carefully consider what would be in an ideal settlement agreement.  As you discuss possible settlements with your client in yourpreparation for mediation, take note of the issues that are non-negotiable for your client.  Additionally, make note of smaller issues to ensure that all relevant information is discussed. Preparing for the mediation is important.  Will your client benefit from a detailed statement to the mediator, or is a simplified approach adequate?  Determine the strengths of your case, but also do not neglect evaluation of the weaknesses.  A good mediator will often comment on a party’s weaker facts or other issues; a skilled attorney needs to have a ready response.  Consider also how much time there is for the mediation.  If your client needs a settlement, while it is generally not necessary or even appropriate to say so immediately, do not waste everyone’s time.  A cooperative and constructive attitude goes an awful long way in getting your opposition to participate in the trade-offs that generally are involved in complex environmental disputes.