Resolving environmental disputes through litigation is often lengthy, costly, and risky for all parties involved. Litigation commonly is a zero sum game – one party wins, one party loses. The losing party typically gets nothing other than frustration and aggravation. The prevailing party gets the result it seeks, but usually at the cost of considerable litigation expenses and delayed projects. For many environmental disputes, however, mediation offers an alternative means for reaching a resolution acceptable to all parties at a fraction of the cost and time needed to litigate the same dispute.
Environmental disputes take a variety of forms and the involved parties may be driven by diverse motivations. Most commonly, environmental disputes are related to efforts by businesses to expand by siting new facilities or infrastructure, real estate developers seeking to pursue development opportunities, or local governments siting new municipal facilities or improving existing infrastructure. Such efforts are often met by strident opposition by potentially impacted neighbors or competing businesses. Litigating such disputes often becomes a war of attrition, with one side believing they can outspend their opposition into submission, while the other side believes they can kill a project by imposing interminable delays.
Mediation has been shown to be a successful tool in resolving such disputes in a cost and time effective manner. An impartial, third-party mediator can assist the parties to find common ground and to identify elements of a settlement that the parties can accept. A mediator also can provide an impartial assessment of the merits of each party’s case. A mediator does not impose a settlement. His/her role is to work with the parties to encourage cooperation to resolve their dispute. In addition, since mediation discussions are confidential and generally cannot be used in subsequent litigation if the mediation is unsuccessful, there is little downside to parties at least making an effort to use this tool to resolve their dispute.
Not every environmental dispute is a good candidate for environmental mediation. There are times that the parties are so entrenched in their positions that litigating the dispute through the courts is the only viable alternative. However, parties to an environmental dispute should make an honest assessment early in the process to evaluate the potential for resolving their dispute through mediation. Stock and Leader’s Environmental, Energy, and Environmental Mediation team has the expertise both to provide mediation services and to represent clients in the mediation process.