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In a facilitative mediation, I help the parties identify areas where they have a common interest in compromise, as well as areas where the parties have different values that can lead to mutually beneficial trade-offs. This type of mediation focuses on the needs of the parties. As a neutral, my job is largely to help the parties develop their own suite of solutions, without regard to what I might view as the “best” or “fairest” outcome. I make sure the parties are not “talking past one another” and that each understands what is most important to the other. Facilitative mediation is particularly beneficial if the parties will have an ongoing relationship.
Evaluative mediations are akin to settlement conferences before a magistrate or judge. As a neutral, I will meet with the parties and evaluate the strengths and weaknesses of their respective cases. I will apply my substantive expertise to offer opinions to the parties about likely outcomes in the event they fail to reach a mediated agreement and to help the parties craft creative solutions that may not be available to them if the matter is pursued in court.
Many environmental cases involve numerous parties who must arrive at a method of allocating cleanup costs among themselves. In these matters, my role as a neutral goes beyond what typically happens in evaluative mediation. Not only will I bring my substantive expertise to bear on evaluating the merits of the parties’ positions, but I will typically be called upon to develop (with or without the assistance of the parties) the actual mathematical model for allocation. The parties are free to accept or reject the proposed allocation.
In addition to serving as a neutral in dispute resolution, I am available to assist in any of the following roles:
Many environmental enforcement matters are resolved by consent decrees that require the supervision of an independent monitor and periodic reports to the court or settling parties to assure that the decree’s provisions are being observed. While consultants are best equipped to perform tasks like confirmatory gauge readings, etc., I add value when it comes to assessing compliance with legal requirements and preparing succinct and clearly written reports that provide the information required by the court and settling parties.
At many environmental waste sites, an allocation solution is only the beginning of a long remediation process. The parties and their counsel are ready to move on to more pressing matters, but someone needs to oversee the contractors, pay the bills, deal with agency requests for information, five-year reviews, and the like. I have served as one of three trustees for the Fisher-Calo Superfund Site in Indiana for the past 22 years. The project remains under budget and we have maintained excellent relations with the state and federal agencies while dealing with “new” issues such as vapor intrusion.
Peer Review/Mini-trial/Mock Trial Administrator
Parties proceeding down the litigation path are often still looking to lower the cost and short-circuit the lengthy trial process. The peer review process—where in-house counsel, outside counsel, business people, and one or more neutrals uninvolved in setting the case strategy periodically come together—is a valuable tool.
Similarly, a mini-trial—where key issues are presented to a neutral, often in front of key decision-makers from each side—is one mechanism that often proves fruitful. A party who is further along in the litigation process may often hold an internal mock trial, where the party’s lawyers present both sides of the case to a group of mock jurors. In either case, experience dictates that the mock trial or mini-trial will benefit greatly if it is supervised and administered by a third-party neutral.