Episode 3: Mediating in the times of COVID-19 and beyond – Perspectives of the Miller Thomson Environmental Law Group

May 5, 2020 | Tamara Farber, Bryan J. Buttigieg, Nahla Khouri

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Tammy: Hello and welcome to another addition of Morning Commute with Miller Thomson. I am your host today, Tammy Farber and I’m joined by two esteemed colleagues, both from our Vaughan office, Bryan Buttigieg and Nahla Khouri. Bryan is an environmental litigator and an environmental mediator and Nahla is a commercial litigator who also litigates environmental cases.

Our topic today is mediating in times of COVID-19. Bryan’s experience as a mediator in environmental cases and Nahla’s experience in general commercial litigation in environmental cases will hopefully give our listeners a bit of insight and tips in to how to be an effective advocate in an online mediation and of course, we’ll get into the nuances of an environmental litigation and pose some interesting questions and hopefully get some interesting tips from our esteemed panel on how to mediate in this time.
So let’s kick off this podcast with a few questions starting with a question for Bryan. First of all Bryan, why mediate a dispute particularly now during COVID-19 and then we’ll go to Nahla for perspectives from counsel as opposed to the mediator.

Bryan: Thanks, Tammy. Mediation now more than ever might be the only practical way to resolve your dispute given the limited availability of court time. Mediators of course remain available and the use of technology has made online mediations a viable option. All traditional reasons for mediation of course remain. It’s private, it’s confidential, it’s without prejudice, it gives parties an opportunity to air their concerns and make candid admissions in a private setting and perhaps most importantly, it allows parties to fashion a unique solution that works for them often using choices that are simply not available through the courts. And finally, of course, mediation is invariably significantly less costly than trying to resolve the issues through the courts and can be done in a much quicker timeline.

Tammy: Excellent Bryan. Great primer. Nahla, let’s get counsel’s perspective.

Nahla: Thanks Tammy and Bryan. From the perspective of counsel, mediation is a very effective way to resolve disputes and satisfy client’s objectives. Counsel and the parties to a dispute typically want to move their cases forward and resolve them and mediation is a great option, especially now in light of the current COVID realities. And additionally one of the recent notices to the profession call on counsel and the parties during the temporary suspension of regular court operations to cooperate and to engage in every effort to resolve matters and of course, as we all know, mediations have the potential of effectively resolving matters in a way that can feel fair and just to clients. And in light of the technology that’s available, a virtual mediation is a great option that essentially recreates the real life in-person mediation, but on screens and in a virtual way. So with a few adjustments, the full benefit of a mediation is available to counsel and the parties and can very effectively satisfy the goal of dispute resolution.

Tammy: And I guess we’ll talk about some of the challenges involved with that, but first let’s go back to Bryan and talk about well what’s special about environmental cases compared to general commercial litigation cases.

Bryan: Tammy, mediation is often the most practicable way to solve an environmental dispute. And there are several unique qualities to an environmental dispute that makes resolving them through the courts quite difficult.
Often the pollutant is unseen. It’s deep below the ground surface. Some of it might be in soil, some may be in ground water, it might be moving or it might be stable, it could be old, it could be fresh, it might have an impact on the use of the property or not. Most of these things are going to be very difficult to see and sometimes to explain to somebody who’s not familiar with the concepts. Different pollutants carry different risks and might require different approaches. It’s quite common in environmental disputes that the problem keeping the parties from settling isn’t who’s at fault as in most typical legal disputes, but rather the problem is really what’s going to be done about it. Different plaintiffs may well have different solutions and different defendants may well have different approaches to solving these problems. When parties chose to go to mediation, they have the ability to choose a mediator who’s an expert in the field. When one goes to court, one simply gets whatever judge is available on that given day. The assigned judge may be an extremely good legal mind, but may not be familiar with environmental law and with the technical engineering and practical issues that come up. They might not be familiar with how to read and interpret environmental expert reports. They might not even understand the nuances of a generic as opposed to say a risk-assessed solution. Perhaps most importantly, judges have limited power to resolve a dispute beyond ordering a one-time payment from one party to another which is really all our courts are able to do. Judges are not willing usually to supervise any type of a long-term solution nor are they likely to order a party as to how to spend any money that’s awarded. Current case law makes things even worse because the repercussions of a judgment nowadays are a little bit less palatable to defendants as there is quite a large risk right now that an adverse judgment requiring a party to pay damages won’t result in finality. It leaves a polluter liable for perhaps future litigation and substantial damages. So often writing a cheque will not solve the problem. The mediative solution will allow for long term solutions such as indemnities, incremental cost agreement – none of which are readily available through the courts. So all of this is what’s unique about an environmental matter which really puts the parties more towards the mediation than towards a court solution

Tammy: Yeah, two great points that you made there. One is, you know, we all went to law school – well, I’ll say excluding maybe the people on this podcast, but a lot of people went to law school and didn’t take any kind of science background and the judges hearing these cases for the most part don’t have science backgrounds and you know, it might have been polisci, but it wasn’t, I’ll say, straight sciences. And your second point, great one also about the types of solutions available and there’s a full panoply of solutions that a judge just simply can’t order in these types of cases. Alright, so let’s get into some of the challenges and let’s talk about some of the technical traps and of course tips that you want to give our listeners. Let’s start with Nahla.

Nahla: Right at the outset, I would say it’s important to make sure that clients and the other side are agreeable to a virtual mediation. In terms of preparation there should also be more of an emphasis on written material being comprehensive and certainly prepared well in advance.
With respect to the written material itself, it’s worthwhile to have the material organized so that there are functioning links and bookmarks recognizing of course that everybody will be largely working off of their screens and it’s important as well to ensure that all the key material and the key documents are easy to locate and access from the brief that’s been prepared. One of the key points I would suggest is to prepare the draft minutes of settlement in advance and there are a few advantages to that. One is that of course we have a working document already prepared and that will help clients and counsel get on the same page for regarding when an ideal resolution will be and it’ll also identify to everybody what the terms are that are in play and what the settlement should reflect. At a sort of simpler level at the basic technological level, preparing obviously includes making sure that you and your clients have secure and stable internet connections, logging in early to test the connections, getting into the online mediation platform itself and following the prompts and then preparing and circulating all the material and the documents that you’ll need well in advance of the mediation to all the parties and ensuring your clients have everything electronically because you obviously cannot provide it to them a physical hard copy the way you would in a normal mediation.

Tammy: Bryan, when you’re as a mediator, do you give out instructions? Like how do you deal with the technical issues for online mediation?

Bryan: Well Tammy, most of the mediation should proceed as a normal one. The fact that the parties are not in the same physical venue, however, does create some new issues that should be addressed. So a mediation agreement, which is usually prepared by the mediator, will include all the usual agreement that the mediation is without prejudice and it’s confidential. But for a virtual mediation it should also provide that recordings of the mediation aren’t permitted and won’t be admissible in any subsequent proceeding. It should specify that only parties to the agreement are entitled to participate and listen in on the proceedings. The mediator, I think Tammy, should also consider a pre-mediation meeting. I do this anyway even in regular mediations. I like to meet the parties just for a few minutes on a conference call ahead of the mediation to get really a sense of the flavour of the parties and how civil or perhaps uncivil they’re likely to be with each other. And it’s always a good idea in any complex mediation, but in this context of a virtual mediation, it’s got the benefit of being a dry run and a test for the technology before the mediation itself and it lets you iron out any problems. The only comment I would make to what Nahla has said as well in terms of the pre-mediation agreement or having some kind of an agreement or minutes of settlement ready, one of the things I encourage the parties to give me before mediation is to send me any offers to settle that they have because that gives me some idea of what hasn’t worked already and with environmental matters, the mediation agreement itself in draft really is going to be pretty empty. It’s going to have the names of the parties, signature blocks and maybe a few basic recitals because as I said at the outset often the very nature of these mediations is that both parties may go in with a very different idea of how it’s going to be settled, it’s not just simply a question of quantum and so the nuts and bolts of the mediation agreement unfortunately they often have to be drafted on the fly at the end of the mediation.

Tammy: We’ve got some great tips there on sort of preparing for the mediation. Let’s talk about being at the mediation and Bryan you mention confidentiality which is obviously a huge concern for clients and obviously our listeners as well. How do you deal with different break-out rooms. How do you deal with ensuring confidentiality between you and your client and as the mediator, how do you not walk in to a confidential discussion?

Bryan: Well, it’s really a question of setting up the technology the right way and whatever software you choose to use just find the way that it happens on its own software, but effectively, you can through technology recreate a [inaudible 11:42] real life in-person mediation. Start everybody in the same room. If there are going to be opening remarks, which I as a mediator tend to discourage, I don’t really like opening remarks, I just want to get right into the actual mediation. And then once you’ve done the introductions and usually what I usually do as a mediator is I will give my own perspective on the facts and where I see the main areas of dispute are and then we can move people into their own private break-out rooms again using the technology, it should just stay within the context of the real life in-person mediation. And again, using the software, you can figure out ways of not barging in and not listening in.
There obviously has to be an element of trust because the mediator is in control of the whole process, but there are ways to do that and counsel and their own clients can, and I’ll leave this to Nahla to speak about, but they can figure out ways outside the actual mediation session to communicate if they want to be absolutely sure.

Tammy: Well, that’s a great segue for Nahla. What do you do to ensure confidentiality and really have that discussion with your client to trust the process?

Nahla: Well I think that Zoom which appears to be the preferred method for most mediations and virtual hearings at the moment has the potential of certain enhanced features to increase privacy and confidentiality, and the mediator will obviously be sending a link to everyone to be joining the Zoom meetings and to ensure that there’s no overlap or crossing of channels essentially. All counsel and the parties have to do is click on the links and the prompts that come to them. So in your room, once the main room has been set up from the mediator and you’ve been prompted to go into another room, in your own private break-out room it’ll just be you and your clients on the screen and you can talk as you normally would and it’s important to go over this process with your clients in advance so that they are aware that it is a separate private break-out room just for parties and counsel on one side of the dispute and the mediator can come in and out of the room as they normally would in the context of a real in-person mediation.
And there is the option to obviously set up separate rooms just for counsel or perhaps to have the opportunity to return back to a main room with everybody in it, but clients should certainly be made aware of these separate rooms and the privacy that’s involved with each one of them. And then in terms of the ability to communicate with clients separately from others, while counsel and clients will have a separate virtual room to themselves while the mediator may be elsewhere, it may be worthwhile to have a separate line of communication pre-set with the clients for confidential communications so that you don’t have to use the Zoom platform. So for example, there can be a group email chain that’s started or you know, text messages or WhatsApp chats that’s underway and certainly if you wanted to just have a good old-fashioned phone call you could mute your screens and directly call your clients to resolve things in a more direct fashion or address certain things as they arise.

Tammy: Well, great tips and I think that’s true whether you’re having a settlement meeting, a mediation or any other kind of sort of resolution of dispute meeting. Let’s sort of bring it back to the environmental side of things and in addition to what we’ve been talking about and maybe just a tip or two, but you know environmental cases tend to deal a lot with engineering drawings or site plans. What are some of the tips, let’s go with Bryan first, that you might or some of the challenges that arise specific to environmental cases?

Bryan: Thanks Tammy. From a mediator’s point of view, what I’m looking for at the outset is trying to find as much as possible common ground on the facts, so looking at the drawings for example, does everybody agree that these drawings show the current state or at least the state at a certain time or does one party think that there’s data gaps or that the drawings are misleading a way of showing what the problem is. It’s really important to try and get to the common ground on the facts first because factual disputes such as how much contamination is in the ground or how much isn’t could become a serious impediment to a settlement or they could provide an avenue for a solution in the sense of if the polluter thinks that there is a lot less contamination then the plaintiff thinks there is, one solution might be to transfer that risk entirely to the polluter such as by buying the property. So, once you figure out are the facts in dispute or not, you start coming into well what are the solutions to this. Is buying the property an option. Can you transfer the risks to one side? Is a sale to a third party an option and that way you can deal with well what’s the real value of the property. Does the plaintiff want to keep the property. If they do, then what are you going to do about the contamination. Does it have to be remediated. Is there a future redevelopment in mind. If so, can maybe you work in the remediation timing to time with that redevelopment. How are you going to pay? How do you allocate the payment because there are some costs that are going to be incurred anyway in a redevelopment, but on the other hand there’ll be some extra costs because there is contamination there. So the mediative solutions allow for these short-term and long-term solutions – things like purchases and indemnities and incremental cost agreements, risk assessments – none of which would be available through the courts and all of which are usually the far better way to solve environmental issues.

Tammy: I think that goes back to your original point about, you know, when minutes of settlement are initially drafted sort of in prep for a mediation, it’s kind of hard for environmental cases because you might be drafting indemnity agreements which themselves are enormous or remediation agreements which can be very complex. Nahla, let’s go over to you. You’ve caucused, you’re ready to reach a resolution. Is there anything different in an online mediation versus I’ll say a regular mediation in terms of tips? What’s in your playbook for the actual settlement discussion?

Nahla: Well as Bryan mentioned, settlements in the environmental context typically have to be targeted to the unique circumstances of the case and that particular dispute, so it’s important to recognize that since settlements in this environmental context will have complex terms that may in many cases require ongoing steps, the terms themselves as they’re negotiated within the mediation will need to be discussed live and essentially edited live and the way perhaps to best handle that is to have a shared screen so that your clients know exactly what’s an issue, what’s being discussed and so that they can participate in every change that’s being made because it has an ongoing effect on their operations and their level of commitment going forward. It’s not just a one and done payment or a receipt of payment and it’s important that they see that process as it unfolds. In general clients need to be consulted on all the terms in a fairly complex settlement, so they need to be part of it. And so I think other than that with respect to the minutes of settlement being very clearly available to everybody as they develop, other than that, I think it’s typically fairly similar to a normal mediation.

Tammy: Great advice and so we’re going to sort of wrap up with all the tips that you two have been giving us and if you can, I’ll say, give me your top two tips for an online mediation in environmental cases and we’ll go with Bryan to start.

Bryan: Thanks Tammy. I would say that online or in face-to-face, the key thing that I would look for as a mediator or even as counsel on there is to be flexible. Communicate your interests and concerns really clearly. Be frank about what you’re trying to achieve. This isn’t the time to still keep things hidden and not talk about what your real concerns are. It’s incredible how many times parties don’t realize what solutions are available to them. Once you set out what your real concerns are, the mediator and creative counsel on the other side have a much better opportunity of figuring out a way to achieve a result that’s acceptable to everybody.

Tammy: Nahla, your CNN highlights, if I can call it that.

Nahla: I don’t know if these are CNN highlights, Tammy, but I’ll certainly say that the number one tip is really to discuss the process with clients in advance and throughout so that they’re comfortable with it. They understand how it works and they believe in it. It’s helpful to have a trial run in advance and have a walk-through with the clients before in advance.
During the mediation, ensure all lines of communication are open and let your clients know how to reach you. To the extent there are anticipated complex terms, those fulsome discussions should certainly be had in advance. The minutes of settlement specifically and any of the documentation that’s exchanged should allow for electronic signatures and signing everything in counterparts and the clients certainly need to have those capabilities available to them. But I think the simplest tip, and this is the takeaway, is to prepare, prepare, prepare. I think that’s a universal tip, but it’s even more valuable in the context of a virtual mediation because clients need to be prepared in terms of what to expect, you need to prepare your materials and your documents and you need to basically be prepared for any possibility and just let the process unfold.

Tammy: Excellent tips and I’d really like to thank Nahla and Bryan so much for joining me today on Morning Commute, although you might be listening to this not in the morning. And I just want to remind everyone that we’ve published a COVID-19 resource hub at Miller Thomson and it’ll be continually updated as new developments emerge during this pandemic. On the page you’ll find links to a number of articles we’ve written quite apart from environmental law and we encourage you to bookmark it and check back on a regular basis. And you also should follow us on Twitter or LinkedIn for all our latest updates. Thank you both and thanks to our listeners. Tune in next time for more on Miller Thomson’s Morning Commute.

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