Mediation - A Solution for Pollution?

Mediation and other dispute resolution techniques have continued to gain popularity, particularly since the introduction in April 1999 of the Civil Procedure Rules. However, another powerful reason for this increase is based upon the experience of companies employing these techniques and their increasing belief that these techniques offer an effective solution for handling commercial disputes.

Nevertheless, mediation has not so far been extensively used as a means for resolving environmental disputes, yet in appropriate cases it has a very powerful and significant role to play - so why is this ?

Advantages of Mediation

The main advantages of mediation apply equally to environmental disputes, namely:-

• It is a confidential and voluntary settlement procedure.
• The fact that the parties have agreed to mediate recognises they are prepared to make concessions.
• Even if the mediation procedure does not produce a settlement, it will assist in focusing upon the real issues.
• The costs which can be incurred in litigation can be avoided.
• It helps to maintain the corporate image.

In a number of instances, parties involved in environmental disputes have avoided mediation, raising concerns such as: -

• In many disputes, such as, for example, an air pollution claim, the parties frequently consist of, on the one hand, an action group comprising a large number of local residents, and on the other hand, a manufacturing company. It is argued that this apparent inequality of power and resources will prevent a dispute being resolved satisfactorily.
• If a dispute is resolved satisfactorily, there is no certainty that the settlement will not be effective in terms of the possible subsequent involvement of regulatory bodies such as the Environment Agency.
• Environmental disputes are invariably technical in nature and mediation is not suited to such issues.

Nevertheless, these concerns can be addressed by ensuring there is a clear understanding at the outset of the mediation as to the scope of the dispute, the role of the mediator, the parties who ought to be involved in the mediation, the nature of the procedure, any potential limitations and the fact that it is not an adversarial procedure.

It must be recognised that mediation has no real role to play in criminal environment-related matters because of the responsibility of the Environment Agency and other regulatory bodies to prosecute criminal offences.

There is nevertheless extensive scope for mediation in a whole range of environmental disputes including water pollution, air pollution, contaminated land, waste disposal and the recovery of clean-up costs. Indeed, in many such disputes the case for mediation as opposed to litigation is overwhelming, particularly even in multi-party and highly technical disputes.

Furthermore, from the point of view of the polluter, with increasing emphasis being placed by companies, their shareholders and bankers upon their environmental performance, the ability to resolve an environmental dispute quickly, confidentially and also at relatively minimal cost in terms of both management time and legal costs, has enormous attractions.

The concluding part of this article will be published in the next edition and will look at how mediation works in practice in environmental disputes.

The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.

For further information please contact David Williams, Commercial Dispute Resolution, Hammond Suddards.