What Environmental and Natural Resource Attorneys Really Think about Alternative Dispute Resolution: a National Survey

Rosemary O’Leary, Professor
Maja Husar, Ph.D. Candidate
The Maxwell School of Syracuse University

This article reports the findings of a year 2000 national survey of attorneys’ attitudes concerning ADR as applied to environmental and natural resources conflict. It is the first wave of a longitudinal study funded by the Hewlett Foundation to track attorneys’ changing – or unchanging – views of ADR. The survey will be repeated in 2005 and 2010 to ascertain any alteration in attorneys’ perceptions or national trends concerning ADR.

The essence of ADR is face-to-face meetings of parties, who have a stake in the outcome of the matter, to reach consensus on a solution that best satisfies their interests. Based on the extant literature, O’Leary et al. have identified five principal elements of ADR: 1) the parties agree to participate in the process, 2) the parties or their representatives directly participate, 3) a third-party neutral helps the parties reach agreement, but has no authority to impose a solution, 4) the parties must be able to agree on the outcome, and 5) any participant may withdraw and seek a resolution elsewhere (O’Leary et al., 1999).

A 1999 RAND Institute study of attorneys’ views of ADR (Hensler, 1999) concluded that although practitioners of alternative dispute resolution have long emphasized the benefits of substituting problem-solving processes for adjudication, empirical studies indicate that ADR may not save litigation costs or time. Litigants may prefer ADR because they believe that it saves them money they would have had to spend if they went to trial; they may prefer mediation because of its process of conciliatory problem-solving or because they feel they it gives them their due as citizens. Lawyers may prefer mediation either for lawyerly reasons or because it brings a third person into the task of informing the client of a less-than-fully-satisfactory outcome. The RAND study closes with a call for further empirical evidence and research on ADR.

Part One of this article overviews our research and the characteristics of our survey respondents. Part Two describes attorneys’ perceptions of ADR. Part Three discusses the benefits of ADR as touted by survey respondents. Part Four analyzes comments concerning the third-party neutrals (hereinafter referred to as “neutrals”) who mediate, facilitate, convene, or arbitrate ADR cases. Finally, Part Five summarizes the major implications of the findings of this survey.

Overview of Our Research and Characteristics of Our Survey Respondents

In August 2000, with the cooperation of the American Bar Association’s Section of Environment, Energy, and Resources, we mailed 500 surveys to environmental attorneys in each of the 50 states. We received 172 returned surveys from 48 states to yield a response rate of 34%. The respondents represented attorneys from all sectors – public, private, and not-for-profit. The respondents included attorneys who described their type of practice of law as private practice (66.9%), corporate (19.2%), and government (11.6%), with the remainder representing a combination of trade association, non-profit, and “other.” In addition, the majority of the respondents were “seasoned” attorneys, most of whom were over 40 years of age (66.9%). The remaining respondents fell between the ages of 36 and 40 (17.4%), or were less than 35 years of age (12.2%).

To gain a better understanding of the extent to which environmental/natural resource lawyers used ADR, the attorneys were asked if they had ever participated in an ADR process. Two-thirds (62.2%) indicated they had previously participated in ADR, while one-third (36.6%) indicated they had not. Of those who had participated in ADR, only 13 had been a part of ten or more ADR cases. The average number of ADR cases per respondent was two to three.

Responses from the survey indicated that attorneys had served in various capacities in ADR cases. Five had served as neutrals while the rest represented clients. Of those who represented clients in ADR, 80.7% represented corporate or business clients, 22% represented government clients, 17.4% represented individuals, and 6.4% represented non-profit organizations. (Note that the percentages exceed 100% because respondents were asked to choose all answers that applied to their practice.) In 82.6% of the ADR cases in which these attorneys participated, a lawsuit had already been filed. Of these cases, two-thirds (67%) of the attorneys represented defendants, while one-third (37.6%) of the attorneys represented plaintiffs. No claim had been filed at the time of ADR for 17.4% of the cases.

The survey results indicated that attorneys applied ADR in a multitude of environmental/natural resource areas. Not surprisingly, the largest category of ADR cases in which these attorneys participated concerned hazardous waste cleanup (53.2%), given that the Superfund law (the Comprehensive Environmental Response, Compensation, and Liability Act – CERCLA) specifically allocates funds for use in ADR. The next largest categories were water quality (36.7%), solid waste (22%), land use (18.3%), water quantity (14.7%), air pollution (13.8%), and siting disputes (11.9%). Other uses of ADR concerned oil and gas exploration (10.1%), endangered species (10.1%), marine resources (9.2%), forest resources (7.3%), and pesticides (3.7%).

Perceptions of ADR

In a show of support for ADR, an overwhelming majority of the attorneys recommended ADR to their clients. Seventy-nine percent said they recommended ADR to their clients, while 16.3% did not recommend ADR. When asked why they recommended ADR, respondents conveyed their perception that ADR saves money, because it is cheaper and more cost effective than litigation. Some attorneys who recommended ADR felt that ADR saved time and was more effective and flexible than litigation. Attorneys who supported ADR also perceived that ADR created “win-win” situations for all parties involved. In addition, the courts’ inability to handle complex environmental/natural resource issues (i.e., for reasons of size of case, technical issues, and scientific issues) was cited by some attorneys as reason to recommend ADR. Some attorneys noted that federal government endorsement of ADR led them to recommend it to their clients. Finally, those who had positive previous experiences with ADR were more likely to recommend it for their clients.

Attorneys who indicated that they would not recommend ADR to their clients either never had any experience with ADR or simply preferred litigation for their clients. Some non-supporters of ADR felt that ADR was in fact more expensive than litigation or that their clients would not like it. Finally, some lamented that locating neutrals knowledgeable about complex environmental issues was a challenge for them.

Clients’ perceptions of ADR are also important in understanding whether an attorney would recommend ADR. The survey asked the attorneys their clients’ perceptions of ADR, specifically, the reasons why their clients typically agreed to participate in ADR. The attorneys most frequently cited saving time and money – saving time was mentioned by 78% of the attorneys, while saving attorneys’ fees was mentioned by 74.3%. Avoiding a potentially disruptive court case was mentioned by half (50.5%) of the respondents, followed by a perception that ADR would yield a settlement (35.8%). Additionally, saving money other than attorneys fees (31.2%), preserving personal relationships (32.1%), an opportunity to find a more enduring resolution than with litigation (26.6%) and a fairer monetary settlement (22%) were also cited as reasons clients agreed to participate in ADR.

The survey asked attorneys to list the perceived challenges to accepting ADR, generally. Overwhelmingly, the most frequently reported response to this question was difficulty in finding qualified neutrals. The responses included difficulty in finding neutrals with the technical and legal background to understand complex environmental issues, the ability to act effectively as a third-party neutral, and the ability to enforce good-faith bargaining by all parties. The respondents also frequently cited attorneys’ general unwillingness to take the ADR process seriously as a challenge. A few attorneys questioned the motivation of the opposing parties, including the sense that some parties “treat ADR as another form of discovery.” In addition, some of the attorneys noted that their clients did not see ADR as being in their self interest because they were more interested in “getting rich” than in remediation, or were reluctant to compromise on issues concerning use of their privately owned land.

Contrary to conventional wisdom, some attorneys expressed an opinion that ADR did not save time. This was cited as a reason they did not accept ADR. They said too many parties and the lack of tangible progress over time slow down the ADR process. Another attorney commented, “sometimes a partial decision by a court can speed settlement in other areas.” In addition, the cost of paying for neutrals was cited as problematic. Attorneys noted that difficulty in getting parties to reach an agreement was another barrier to environmental/natural resources ADR. Mentioned were perceptions that some parties were too emotional to reach an agreement, and that government entities curtailed the ADR process because they had political agendas or lacked creative solutions needed in ADR. Last, the perception of unequal power among the parties was cited by some of the attorneys as problematic in ADR. For example, attorneys expressed concern that parties disclosed information unequally or withheld information that might be used in litigation should ADR fail.

The survey also sought to understand reasons why attorneys themselves were hesitant to use ADR. The most frequently cited reasons why attorneys were reluctant to participate in ADR were the fear of losing control of the process and that their strength lay in their training in the adversarial process. A general lack of familiarity with ADR skills and processes was mentioned. Some attorneys expressed the view that the ADR process might sacrifice justice in an effort to reach a compromise. In addition, attorneys said they felt they could not adequately represent their clients’ interests through ADR. Approximately one-third of the respondents expressed the attitude, “If I can win, why use ADR?” About 29% of the attorneys noted their perception that ADR is less financially lucrative than litigation, clients will perceive the lawyer as compromising their interests and, again, that ADR may give the other party damaging information. Almost as frequently noted by respondents (17% each) were the sense that these individual attorneys cannot represent their client zealously in ADR and that the client will become second to reaching an agreement or consensus. Interestingly, the attorneys only sparingly mentioned the perception that ADR might eliminate the need for future litigation and the probability of a larger settlement through litigation compared with ADR.

Benefits of ADR

As the attorneys noted in the survey, there is a perception among the majority of the respondents that ADR saves time and money compared with litigation. To address this perception, the survey asked attorneys to specify their client’s costs in their most recent ADR case. Amounts mentioned by attorneys ranged from nothing to $500,000, while the average cost to their client was $43,113.79. In comparison, when asked to estimate how much litigation might have cost their clients for the same case, the amounts mentioned by attorneys ranged from $2,500 to $2 million, with the average estimated cost of litigation being $210,703.70. Hence, the estimated average savings to the client of choosing ADR over litigation in these cases was $167,589.80.

The survey also asked the attorneys to estimate the length of time it took to resolve their most recent ADR case and then to compare that number to the time it most likely would have taken to resolve the dispute had litigation ensued. The average length of time cited to resolve their last ADR case was 5.6 months. The average length of time estimated by the same attorney for litigating the same case was 25.9 months. Hence, the attorneys on average estimated that ADR shortened their case duration by 20.3 months.

The majority of the attorneys surveyed (60.6%) reported that the use of ADR successfully resolved the dispute. When a monetary agreement was involved, the payment ranged from hundreds of dollars to a reported $360,000. The mean monetary agreement reported was $47,920. But attorneys who participated in ADR were insistent that the positive outcomes were not restricted to monetary payments. Attorneys said other positive outcomes from the use of ADR included a perceived fairer allocation of costs, a win-win solution that benefited all parties, and agreement as to remedial measures. In addition, attorneys noted that the ADR process led to a greater understanding of opposing parties’ interests and the resolution of tough technical issues. Lastly, attorneys cited long-term benefits of ADR, such as environmentally beneficial projects, the resolution of long-term liability issues, and positive corporate-government relations.

When ADR did not resolve the controversy at hand, positive benefits were nonetheless reported. Attorneys indicated that ADR allowed hostile parties to talk with each other, and as a result, information was exchanged among parties that might not have been shared otherwise. ADR also allowed for better pre-trial preparation and clarification of the issues. Some attorneys considered ADR a “reality check” for parties. In other words, ADR allowed parties to assess what settlements might be possible, as well as to explore options that might not have been considered otherwise. Finally, ADR allowed parties to become vested in creating a solution of their own.

Importance of the Third-Party Neutral

ADR typically incorporates the use of mediation, negotiation and facilitation techniques. To gain a better understanding of which techniques were most commonly used, the survey asked the attorneys to note all the types of ADR in which they have been involved. The most common type of ADR utilized by the attorneys was mediation (82.6%), followed by negotiation (67.9%), and facilitation (25.7%). When a mediator was used, the parties to the case most often selected the mediator jointly, and the parties usually split the costs of the mediator.

As noted previously, finding qualified and technically savvy neutrals was frequently cited as a challenge to utilizing ADR. So what does the “ideal” neutral look like? Over 80% of the attorneys that rated the attributes of a third-party neutral found preparedness and knowledge about the substance of the dispute very important or important. Not surprisingly, an overwhelming number of attorneys (over 80%) responded that respect toward parties involved, fairness, the ability to open up a wide range of options, and the ability to work toward a resolution of the dispute were very important or important.

On the other hand, the attorneys surveyed had mixed views concerning whether a neutral must be an attorney. Some said this status is important (27.5%), others somewhat important (36.7%), and still others not at all important (21.1%). This attribute yielded the highest percentage of “not at all important” compared to all other attributes. Surprisingly, the extent to which the attorneys felt that third-party neutrals should be firm and assertive varied from very important (24.8%) to important (40.4%) to somewhat important (22.9%). In addition, the ability of a third-party neutral to effectively handle imbalances of power among the parties also yielded mixed results, with answers varying from very important (21.1%) to important (44.0%) to somewhat important (22.0%).

Implications of this Study

There are several important implications of this study for environmental and natural resource attorneys. First, when ADR successfully resolves a dispute, a majority of attorneys who participated in the ADR effort reports several positive benefits. Examples of positive benefits include saving money, saving time and flexibility. Creating a “win-win” situation within a creative problem-solving environment, and avoiding potentially disruptive court cases are other plusses of ADR touted by attorneys.

Second, when ADR does not successfully resolve a dispute, attorneys nonetheless report positive benefits. These include allowing hostile parties to talk with each other and the sharing of information, allowing a greater understanding of the issues involved. Other plusses mentioned were assessing possible settlement options, exploring new ideas that would not normally be explored in the context of litigation and allowing the parties to become vested in creating a solution of their own.

There are many barriers to the use of ADR. First, there is a perception among lawyers that government agencies are hesitant to use ADR. Next, there is a perception that public managers are often unhelpful in bringing relevant parties to the table during ADR. Last, there is a perception among some attorneys that they cannot represent their clients’ interests zealously in ADR. These are hurdles that must be overcome if ADR is to be used more often.

In the future, whether or not there will be a high demand for ADR largely depends on client and citizen demand. Attorneys and their clients must be convinced that ADR is an option that will leave them better off than they would be had they stayed with litigation. Pivotal in this equation is the ability to recruit consistently fair and competent neutrals with scientific and technical knowledge.

Further evaluative research assessing the efficacy of ADR techniques and processes is needed. Tied in with this, additional evidence must be marshaled to convince warring parties of the possible strengths of exploring ADR. Attorneys must be educated about the mechanisms of ADR, as our findings show that those attorneys who are most negative about ADR are those who have never tried it.

Clearly, ADR is not a panacea. There will always be cases where, for example, the only way to obtain the attention of a recalcitrant polluter is to file a lawsuit. Yet our national survey shows there is cautious optimism among attorneys concerning the use of ADR to address environmental and natural resource conflicts. Our follow-up study in the year 2005 will help determine whether this optimism is a trend or a passing fad.

References

Hensler, Deborah R. 1999. A Research Agenda: What We Need to Know About Court-Connected ADR. Dispute Resolution Magazine 6 (1): 1-16.

O’Leary, Rosemary, Robert F. Durant, Daniel J. Fiorino, Paul Weiland. 1999. Managing for the Environment: Understanding the Legal, Organizational, and Policy Challenges, Nonprofit & Public Management Series. San Francisco, CA: Jossey-Bass.

A version of this article appeared in Nat. Resources & Env’t, Spring 2002, at 262.

Rosemary O’Leary’s latest book The Promise and Performance of Environmental Conflict Resolution (co-edited with Lisa Bingham) was just published by Resources for the Future Press. It will be reviewed in the next issue of this Newsletter.