Dispute Settlement Counsel

I got a call this week from a lawyer representing a client in a dispute involving environmental and breach of contract issues. He was following up on a recommendation to use me as a mediator in his case. His only question had to do with whether I had recent experience in environmental Superfund issues.

I advised him that my specialty area of study in law school was environmental law and received a certificate in environment law along with my J.D. from Pace Law School, known for its environmental studies program. Also, while I had litigated some major environmental cases earlier in my career, I hadn’t worked on any Superfund cases lately. The lawyer thanked me for my honesty and said he would consider that and get back to me.

The question about whether a mediator is experienced in a certain area of law triggered some thoughts. On the one hand, it’s a fair question and certainly having a mediator who has familiarity with the specific area of law involved is beneficial. But getting up to speed on the legal issues and the body of law involved in a dispute is not a major challenge for most mediators. Gathering and grasping the relevant information and the doing the legal analysis is important for a mediator. But the far more vital skill set and the true value that a good mediator brings to the table is his or her talent and ability as a neutral facilitator. That is, after all, why parties hire mediators and that should be the strongest factor and consideration.

But I also thought about the interest expressed by the lawyer, and through him, his client. They needed some knowledge at the mediation table about the specific area of environmental law. Here is where clients, lawyers and mediators involved in mediation would do well to take a page from Collaborative Law playbook and the collaborative process: the use of neutral experts.

Unlike litigation, in which parties hire their own experts who are paid to take the party’s position and testify in support of it, Collaborative Practice utilizes experts differently. The expert is jointly hired by both sides and the cost is shared equally by both sides. The expert’s role is to openly provide independent, neutral expert information and analysis to both side and more so, to the process as a whole. The non-aligned expert becomes a mutual asset and a resource for all parties in developing options for settlement. I recently worked a collaborative case involving a business breakup in which the parties jointly hired a CPA to provide a neutral and independent assessment of the company’s financial situation.

Shared costs. Shared usage. Heightened value. The joint use of a neutral, independent expert is a beautiful thing: The client pays less money and gets more value. And the experts find it liberating and freeing, allowing them to do their best work.

So back to this mediation of the environmental/ breach of contract dispute, or for hat matter, any mediation in which there is a need for real expertise in a practice area. The ideal situation for the parties in the above dispute would be to retain a mediator who is an excellent mediator and also hire a neutral, independent expert in the area of environmental law, specifically Superfund matters. That frees the mediator to concentrate his energies and talents on facilitating a good resolution, with the value added of having an environmental expert in the room focused solely on providing expert advice and information, to be utilized by both parties, by the mediator and the process as a whole.

If you really want a good and thorough mediation, that would be the way to set it up. It is a higher level of mediation and a better quality of dispute resolution.