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Environmental litigation is often so complex, and usually involves so many parties, that each environmental mediation requires a unique combination of approaches—far beyond the classic caucus-only mediations that are standard today. While some environmental cases can certainly be settled quickly in a caucus format, many others require significant joint sessions and real dialogue among the participants. As a mediator, my goal is to work with the parties to structure the very best mediation process, hand-tailored to achieve a sustainable resolution—be it a CERCLA cleanup case, a regulatory air matter or a CEQA dispute.
CERCLA Cleanup Matters
When mediating cleanup litigation matters, I find that much key information is developed during the mediation process itself—such as identifying the nature and scope of contamination and the proposed remedial action plan. The environmental consultants play a vital role in the mediation, and I will often set up a process that allows them to work together to discuss the scope of testing and the scope of cleanup. These joint sessions are indispensable to helping the parties reach agreement on these pivotal issues.
In my experience, managing the allocation discussion in a cleanup action is the true key to a successful settlement and is also often the biggest obstacle in cleanup matters. It's rare that the parties are willing to openly discuss their respective allocations together. In my mediations, I first work with the parties collectively to help them reach broad agreement on the most critical allocation factors. Next, I ask each party to use those factors as a guide in allocating 100 percent of liability to the other parties, excluding itself. I've found this informal voting process to be an invaluable tool in promoting settlement.