JAMS ADR Blog by Chris Poole
Most disputes in litigation involve a procedural phase for the preparation and exchange of expert reports and the interrogation of the experts’ opinions. In environmental matters, where questions of science are often at the core of a conflict, this stage is particularly important. It can also be especially lengthy, contentious and expensive.
While lawyers are very familiar with employing warring expert witnesses in trial practice, they may not know how they can employ those same professionals in a concerted, problem-solving manner in mediation. This is actually a viable and tested option.
There are a number of ways to do this.
The collective knowledge of environmental scientists, chemists, engineers, hydrogeologists and geologists—indeed, any subject matter authority—retained by the parties can be harnessed through separate, expert-only meetings. In these meetings, the team is charged with reaching a recommended consensus on the most important elements of an investigative and remedial plan. To accomplish this, they must analyze the issues from both a scientific and an economic perspective as they work together to find the best and most cost-effective plans.
I have empaneled such “consultant roundtables” with great success in cases both large and small. The experts’ recommendations often serve as the skeleton on which a global settlement is formed.
Another way to integrate important scientific data into a legal dispute without bias is to enlist an environmental expert as a co-mediator. As a team, the two co-mediators can leverage their areas of experience to help parties reach a better understanding of both the scientific disagreements and the overall legal risks at issue. Neutral scientists, who are not affiliated with any of the disputants, can provide unbiased reality testing analyses and add objectivity to what often are advocacy-driven opinions. They can examine and assess the parties’ disagreement and to try to reach a scientific consensus that forms a solid basis for resolution.
The advantages of this methodology are similar to those associated with selecting a mediator who has extensive experience in complex environmental matters and the underlying technologies at issue. A neutral who fully understands the scientific principles involved can make the process more efficient and increase the probability of a more optimal outcome.
A third way to use neutral experts is for the parties to jointly retain an expert to confidentially opine on specific issues in dispute. The parties can agree that the expert will act in a neutral capacity and be retained under the mediator’s supervision to maintain confidentiality. The parties can also agree on a variety of parameters, such as which reports and data the expert will review, the specific questions the expert will answer and the timing and budget. Of course, they will understand that any opinions the expert delivers will be kept strictly confidential under the mediation privilege. A non-binding and objective opinion on an issue that divides the parties, delivered by an expert whom all parties trust and respect, can remove a significant impediment to resolution and facilitate settlement.
Virtual Testimony Flexibility
Finally, the technology afforded by Zoom and other virtual platforms allows for expert meetings to be conducted remotely. This is especially valuable in cases where the scientific experts (and their clients) are located far apart from one another. The sophistication of virtual platforms allow experts to examine, explain, and share even the most complex reports, maps, drawings and photographs in much the same way they would in person. This means that experts can be used more effectively in settlement negotiations. The use of virtual proceedings also enlarges the pool of reasonably available scientific experts, thereby increasing the likelihood that disputing parties can agree and timely empanel one.
All of these processes can enhance the efficiency and the potential for success of an environmental mediation. Importantly, each one can be fine-tuned to meet the specific needs of the individual case.
Kluwer Mediation Blog and Kluwer Arbitration BlogRaymond Williams, Resources of Hope (published posthumously in 1989), p. 118 I write and will upload this blog on the eve of my departure...By Ian MacDuff