In the pure form, the mediator facilitates communication between parties and helps the parties determine the solution that best fits their needs. The settlement conference model puts the mediator more in the role of a judge imposing a solution. When parties to an environmental dispute are deadlocked strictly over dollar amounts, resistance to settlement is likely due to outcome uncertainty. Cleanup liability is uncertain. Contaminant contribution is uncertain.
Conflicting law adds to the uncertainty.
With the parties' permission and participation, we may use probabilistic techniques to estimate environmental liability. A variety of allocation theories may be tested including those based on volume, per capita, toxicity and cost causation principles.