Storm water run-off disputes – resolving “neighbor wars” (Part 3 of 3)

compromise solution

In this final post let me describe how the matter was resolved by mediation. My approach and practice in these type disputes is to start the mediation with a joint session with everyone on the same room, which in this case lasted about 2 hours.  This allowed each side to present their position and have a chance to rebut the other side, thus “being heard” which is a critical component in resolving disputes.  There was a critical acknowledgement in the joint session by all, that temporary structures had not been put in final form, since all the housing units had not been completed. It was further acknowledged that this fact contributed to an increase in flow conditions.

However there was no agreement at the outset of the mediation on how to fix the problem. The developer’s expert recommended a simple solution involving completing the drainage structures that were designed for the development site when the project had been completely built out. In addition they offered to add in a few upgrades the cost of their solution was only about 1/10th the price of the other side’s design. The farmers totally lacked confidence in the as-designed plan. Their expert recommended completely re-routing the storm water by putting a ¼ mile drainage pipe under a paved road to discharge directly in the creek downstream, at a cost of several hundred thousand dollars.

The final phase of the mediation included caucusing with each side separately. For this case this phase lasted about 4 hours with the mediator encouraging proposals and shuttling back and forth.  The two initial solutions were pretty far apart. After much back and forth, the mediator identified an intermediate solution that no one had focused on. It involved burying a drainage pipe through the farmers’ property exactly where the water was running. The benefits to this technical solution were multiple:

• It involved a much shorter distance and a reduced cost somewhere in between the two solutions that were presented.
• The cost was within the range of the available contribution from the insurance companies.
• It didn’t require digging up a paved county road, with all the costs and potential liability issues associated with that solution.
• It offered an opportunity of repairing the earlier damage to the farmers land at the same time the new pipe was installed this saving cost.
• Since the pipe was routed underneath the natural path of the water flow that caused the damage, it provided a good grade for the pipe to flow naturally.
• By chance there was an existing easement for a water main that happened to be in the same location.

The concept from the mediator was presented independently to each side and tested in private. Neither side wanted it to be considered their idea (which it wasn’t) until they received the other side’s reaction.  In addition, these farmers had owned the farms for generations and felt before agreeing to any such changes on their property, they would have to get approval from their adult children who lived in other states.  This family approval was obtained and everyone tested the solution, before all parties finally accepted the fix and settled the case.

Lessons Learned – There are several reason why this matter settled through the mediation process. First, there are many times a dispute needs a gentle (or not so gentle) shove towards a different way to resolve the dispute. Thanks to the court’s directive at an appropriate time in the case, the parties & lawyers although skeptical, moved forward to mediation. Secondly the technical experts were hired to find technical solutions, and not to testify at trial.  Thus they were much more open to factual agreements and creative thinking. When experts are hired to testify in trial they become necessarily very opinionated and adversarial, since that is what they are being paid to do.  In this case their assignment was to find a mutually agreeable solution.

Finally, although a mediator’s skills are often much more important than the mediator’s subject matter knowledge, this case was different. Since coming to agreement on the technical solution was the predominant interest, the mediator’s technical background was critical and related directly to the substance of the dispute. The mediator in fact, was certainly not as knowledgeable as any of the other engineers involved. Indeed there also may have been flaws in the suggested solution, but fortunately it held up to scrutiny from both sides. Having a neutral involved provides someone in the room with a much different perspective and view of the problem and solution, and the ability to see things the disputants cannot see.

Storm water run-off disputes – resolving “neighbor wars” (Part 2 of 3)

This is a continuation of my last post, concerning mediating a dispute

unexpected “wetlands”

over storm water run-off from a residential development onto adjacent farmlands. After years of complaining, the farmers ended up suing the owners of the residential development for damages caused to their farms. The case proceeded through a year of discovery and pre-trial posturing, costing time and money, but not getting closer to solving the problem. When the judge in the case finally ordered all parties involved to take 60 days and try mediation, everyone was at least open to the possibility of finally looking for a collaborative solution.

The farmers’ wanted most of all to find a technical solution.  Their properties continued to experience the damage of increases in water flow, although they were assured by the developers that there was no increase in flow and the water management plan was approved by the county.  The lawyers sought a mediator who also had a technical understanding of the problem and could help the parties evaluate and find a solution. I was selected because in addition to being a mediator and a lawyer, I was a licensed engineer. Among other things my background included training early on in the U.S Army Corps of Engineers where we were taught about engineering for storm water run-off as well as designing drainage structures.

Once the mediator was selected, a process was agreed to by the mediator, the lawyers and the parties. Both sides were to use technical experts to identify the exact nature of the problem, as well as a solution. Prior to the mediation both sides exchanged their analysis and technical solutions. Conference calls were held together and also individually to insure a clear understanding of each side’s position.  This pre-mediation work also gave the mediator the opportunity to develop the trust and confidence of all sides. Although both sides were somewhat skeptical after years of fighting, fortunately everyone remained open-minded and  prepared in good faith for the mediation.