Environmental disputes can turn costly quickly: samples, more samples, experts, attorneys, more experts. In my experience, few environmental disputes are worth the expense of going to trial.
I recently completed a 40-hour mediation training class and was reminded how cost-effective mediation can be. I wanted to share these thoughts while they were still fresh in my mind.
Mediation isn’t always the answer. But, not only can it provide an important reality check, it can also encourage more creative resolutions than anything available in a courtroom.
When is mediation appropriate?
Once you have the facts – Mediation can be conducted before a lawsuit is filed. However, there should be sufficient discovery or shared data to ensure the mediation is productive.
When your client needs an impartial case evaluation – I have also found mediation productive when a client seems to be viewing the case through rose-colored glasses. If this is your situation, make sure you ask the mediator to be evaluative, and he/she will comment on the strengths and weaknesses of your case (in separate caucus). For example, we all know that you very likely will not recover 100% of attorney fees if you prevail in a breach of contract case. But hearing that from an impartial third party makes it seem more real.
When a trial outcome is either too costly or too risky (or both) – Ever since I began my career as a consulting engineer, I kept an eye on costs and the budget. Don’t spend $25,000 in fees for a $10,000 TCEQ fine. It seems obvious, but people get caught up in the battle and lose sight of how much has been spent – and how much will be spent if you go to trial. Mediation can be a great way to talk through issues with a neutral third party and possibly reach an amicable solution.
Similarly, trials are ALWAYS a risk. Parties put their future in the hands of a judge or jury whereas mediation offers the parties an opportunity to craft a mutually tolerable solution. Don’t forget that mediation settlement terms can include items that a judge does not have authority to grant, such as making a donation to the other side’s favorite charity or building a neighborhood park. Mediation offers an opportunity to think outside the box.
If you’re in the midst of a dispute, mediation may be the most effective, efficient way to resolve it.
And, of course, drop me a line at email@example.com if I can help.