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Environmental dispute resolution


Environmental Dispute Resolution (EDR) or Alternative Dispute Resolution (ADR), as it is more generally known, is an out-of-court alternative to litigation to resolve disputes between parties. Although ADR can be used with virtually any legal dispute, it is often used to resolve environmental disputes. There are several types of ADR, ranging from the least formal to the most formal process: (a) negotiation, (b) mediation, (c) adjudication, (d) arbitration, (e) minitrial, and (f) summary jury trial.

Negotiation : Negotiation is the simplest and most often practiced form of ADR. The parties do not enter the judicial system, but rather settlements are reached in an informal setting and then reduced to written terms.

Mediation : Mediation is an extension of the direct negotiation process. The term is loosely used and is often confused with arbitration or informal processes in general. Mediation is a process in which a neutral third-party intervenes to help disputants reach a voluntary settlement. The mediator has no authority to force the parties to reach an agreement.

Mediation is often the most appropriate technique for environmental disputes because the parties often have no prior negotiating relationship and, because there are often many technical and scientific uncertainties, the assistance of a qualified professional is helpful.

Mediation is also used with varying success in Environmental policy-making, standard setting, determination of development choices, and the enforcement of environmental standards. Many states explicitly recognize mediation as the primary method for initially dealing with environmental disputes, and mediation procedures are written into federal environmental policy , specifically in the regulations dealing with the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA). Mediation is not appropriate, however, with all environmental disputes because some environmental laws were designed to encourage a slower examination of issues that impact society.

Adjudication : Adjudication is sometimes referred to as "private judging." It is an ADR process in which the parties give their evidence and arguments to a neutral third-party who then renders an objective, binding decision. It is a voluntary procedure and private unless one party seeks judicial enforcement or review after the decision is made. The parties must agree on the adjudication and procedural rules for the process and each side is contractually bound for the length of the proceeding.

The advantage of adjudication is that a law- and/or environment-trained third party renders an objective decision based on the presented facts and legal arguments. The parties set their own rules so an adjudicator is not bound to legal principles of any particular jurisdiction. Private organizations provide adjudication services for fees but they can be expensive.

Arbitration : Arbitration is a process whereby a private judge, or arbitrator, hears the arguments of the parties and renders a judgment. The process works much like a court except that the parties choose the arbitrator and the substantive law he or she should apply. The arbitrator also has much more latitude in creating remedies which are fair to both parties. People often confuse the responsibilities of arbitrators and mediators. Arbitrators are passive functionaries who determine right or wrong; mediators are active functionaries who attempt to move the parties to reconciliation and agreement, regardless of who is right or wrong.

Parties cannot be forced into arbitration unless the contract in question includes an arbitration clause or the parties consented to enter into arbitration after the dispute developed. Since arbitration is a contractual remedy, the arbitrator can consider only those disputes and remedies which the parties agreed to submit to arbitration.

Minitrial : A minitrial is a private process in which parties agree to voluntarily reach a negotiated settlement. They present their cases in summary form before a panel of designated representatives of each party. The panel offers non-binding conclusions on the probable outcome of the case, were it to be litigated. The parties may then use the results to assist with negotiation and settlement.

Summary Jury Trial : A summary jury trial is similar to a minitrial except that the evidence is presented to a non-expert, impartial jury, rather than a panel chosen by the parties, which subsequently prepares non-binding conclusions on each of the issues in dispute. Parties may then use the assessment of the jury's "verdict" to help with negotiation and settlement.

[Kevin Wolf ]


RESOURCES

BOOKS

Loew, W. R., and A. M. Ramirex. "Resolving Environmental Disputes with ADR." The Practical Real Estate Lawyer 8 (May 1992): 15-23.

PERIODICALS

Kubasek, N., and G. Silverman, "Environmental Mediation." American Business Law Journal 26 (Fall 1988): 533-555.

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Environmental Dispute Resolution

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