The Creative and Collaborative Use of Neutral Experts in Environmental Mediations – How to Turn the “Battle of the Experts” into a Rewarding Resolution Strategy | JAMS

Most litigation involves a procedural phase of preparing and exchanging expert reports and questioning expert opinions. In environmental matters, where science issues are often at the heart of a conflict, this step is particularly important. It can also be particularly long, contentious and costly.

While lawyers are very accustomed to employing expert wartime witnesses in trial practice, they may not know how they can employ these same professionals in a concerted manner to resolve issues in mediation. It is in fact a viable and tested option.

There are a number of ways to do this.

Round tables

The collective knowledge of environmental scientists, chemists, engineers, hydrogeologists and geologists – indeed, any authority in the matter – held by the parties can be harnessed through separate expert meetings. During these meetings, the team is responsible for reaching a recommended consensus on the most important elements of an investigation and recovery plan. To do this, they must analyze the problems from both a scientific and an economic perspective while working together to find the best and most profitable plans.

I have organized such “consultant round tables” with great success in both large and small cases. Expert recommendations often serve as the backbone on which a comprehensive settlement is formed.

Co-mediators

Another way to incorporate important scientific data into an unbiased legal dispute is to bring in an environmental expert as a co-mediator. As a team, the two co-mediators can draw on their areas of experience to help the parties better understand both the scientific disagreements and the overall legal risks involved. Neutral scientists, who are not affiliated with any of the disputing parties, can provide unbiased reality test analyzes and add objectivity to what are often advocacy opinions. They can examine and assess the parties’ disagreement and attempt to reach a scientific consensus that provides a solid basis for resolution.

The benefits of this methodology are similar to those associated with selecting a mediator with extensive experience in complex environmental issues and the underlying technologies involved. A neutral who fully understands the scientific principles involved can make the process more efficient and increase the likelihood of a more optimal outcome.

Confidential notices

A third way to use neutral experts is for the parties to jointly retain an expert to rule in confidence on specific issues in dispute. The parties may agree that the expert will act in a neutral capacity and will be retained under the supervision of the mediator to preserve confidentiality. The parties can also agree on a variety of parameters, such as the reports and data the expert will review, the specific questions the expert will answer, and the timeframe and budget. Of course, they will understand that any opinion expressed by the expert will remain strictly confidential under the privilege of mediation. A non-binding and objective opinion on a divisive issue, delivered by an expert whom all parties trust and respect, can remove a significant obstacle to resolution and facilitate resolution.

Virtual Testimonial Flexibility

Finally, the technology offered by Zoom and other virtual platforms makes it possible to conduct expert meetings remotely. This is especially useful in cases where science experts (and their clients) are far apart. The sophistication of virtual platforms allows experts to examine, explain and share even the most complex reports, maps, drawings and photographs the same way they would in person. This means that experts can be used more effectively in settlement negotiations. The use of virtual procedures also expands the pool of reasonably available scientific experts, thus increasing the likelihood that the parties to the dispute can come to an agreement and form one in due course.

All of these processes can improve the effectiveness and potential for success of environmental mediation. It is important to note that each can be refined to meet the specific needs of each case.

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