Final Essay: Meditation and Conflict Management
When legal researcher Erin Brockovich blew the whistle on California utility company PG&E in the early 1990s, the subsequent tortfeasor lawsuit Anderson vs. PG&E, resulting in a $333 million landmark settlement to the plaintiffs in 1993, established a new baseline for damages in respect to environmental violations by a corporation (Girardi & Keese). Analysis of the legal representation of 650 residents in the City of Hinkley, California, by Brockovich’s employer, by law firm Girardi and Keese expiates the limitations of mediation and conflict management leading up to litigation of gross negligence cases.
The case alleging defendant corporation, PG&E’s contamination of groundwater in the City of Hinkley, with hexavalent chromium by the gas pipeline facility used by the company to fight cooling tower corrosion at Hinkley Compressor Station led to far higher than normal cancer rates in the area resulted in the record court award. Of the settlement, the law firm was compensated $133.6 million, with Brockovich receiving a $2 million bonus.
The Hollywood film release of the film production of Erin Brockovich in 2000 depicting the story of the legal researcher’s investigation into PG&E acts of gross negligence leading to substantial claim on behalf of 196 victims stands as a seminal case study in respect to contemporary mediation and conflict management theory. The use of essential legal and scientific tools by Brockovich in the contribution of information to evidentiary proceedings serves as a foundation to scholarship on the topic of research as advocacy. A composite of information including scientific data as well as witness testimony supporting the plaintiff’s tortious grievance in the case illustrates the critical nature of instrumentation and testing in development of substantial and convincing argument where environmental violations have taken place.
Theoretical consideration of the case is found in the Wilmot-Hocker Conflict Assessment Guide, which offers an outline of key issues in mediation of conflict. The assumptions and triggering events cited in the fact pattern of the case provide the details to definition of the conflict. Tortfeasor suits are an explicit in their power currency in the public arbitration of events. The storytelling element of attorney representation during a litigation case illustrates the potential of the courtroom as a mediation environment, yet one bound by legal principles rather than arbitrary negotiations and collaborations.
Discovery to the case is an evidentiary proceeding, largely built by Ms. Brockovich in the interest of proving gross negligence by PG&E in pollution of the site targeted in the lawsuit. The accumulation of evidence lays the foundation to articulation of cause-in-fact; informing storytelling conventions characterized by judicial opinion. Decision to the case, if not path to forgiveness, is relevant to reconciliation as financial remedies are applied to damages sustained by the plaintiffs.
If an alternative were sought in the context of mediation rather than court, evaluation of the defendant’s position during litigation would be of key import. In the United States, tort law serves as the basis to corporate ethics more generally, prompting changes in compliance to rules and regulations attendant to environmental mandates as they are enacted. There is a pronounced difference between statutory enforcement and voluntary compliance, yet mediation where relevant, can still enter into the discussion if prima facie to strategic organizational decision.
In some cases, mediation prefaces tortfeasor filings, and this stands as an alternative official model of public policy in action. This is the case in World Trade Organization (WTO) mediation where a tertiary legal dispute mechanism is used to arbitrage disagreements between member trading partners. This policy based measure also includes scientific techniques of investigation attendant to the mediation process.
The case points to the risk of “cleaning up” gross negligence pollution post facto to managerial decision is obviated by the lawsuit, and also points to the high price of ecological and human health, not to mention company reputation. The potential for mediation as a viable and competent measure for tackling environmental disaster is at present, still under investigation.
Mediation as Advocacy
In Abramson’s “Problem-Solving Advocacy in Mediations: A Model of Client Representation” the proscription of mediation as a formula in the PG&E case is argued (Abramson). Analysis of the tortfeasor suit prompting Brockovich’s rise to fame as an attorney, is distinct form other forms of social conflict. One of the main issues that separates gross environmental risk from other hazards, is the calculus negligence or level liability in correspondence with degree of toxic exposure. The exceptional levels of risk typically denoted in landmark environmental lawsuits, normally have substantial, long-term ecological and human impacts.
Traditional conflict management or problem-solving mediation solutions, then, are not especially apt in covering the incredible damages subsequent to such an incidence. To leverage a claim is sometimes, if not always, easier than requesting clean-up or remedy directly from a major corporation with a high profile reputation and extensive financial resources to protect.
In the film, Erin Brockovich, script narration of the pre-litigation meeting with PG&E lawyers illustrates the adversarial element of costly environmental negligence cases:
“Ms. Sanchez: [at the meeting with the PG & E lawyers] Let's be honest here. $20 million dollars is more money than these people have ever dreamed of.
Erin Brockovich: Oh see, now that pisses me off. First of all, since the demur we have more than 400 plaintiffs and let's be honest, we all know there are more out there. They may not be the most sophisticated people but they do know how to divide and $20 million isn't *shit* when you split it between them. Second of all, these people don't dream about being rich. They dream about being able to watch their kids swim in a pool without worrying that they'll have to have a hysterectomy at the age of twenty. Like Rosa Diaz, a client of ours. Or have their spine deteriorate, like Stan Blume, another client of ours. So before you come back here with another lame ass offer, I want you to think real hard about what your spine is worth, Mr. Walker. Or what you might expect someone to pay you for your uterus, Ms. Sanchez. Then you take out your calculator and you multiply that number by a hundred. Anything less than that is a waste of our time” (IMDB).
Brockovich’s offer of a glass of water procured from Hinkley’s groundwater system at the meeting furthers the problem-solving, adversarial tactic; evidence of PG&E’s failure of a duty to a reasonable standard of care as mandated by law is in effect, the violation in gross negligence tort lawsuits filed against corporate defendants. The fact that tort rules are enacted to cover liabilities outside the realm of contract law, confirms that resolution of conflict extends beyond the scope of breach, crossing the line into harm.
PG&E irresponsibly dumped toxic chemicals affecting groundwater in the area where plaintiffs claimed to contract terminal cancer and related illnesses. In the film, Erin Brockovich, dialogue about plaintiff’s conditions is recorded as evidence for the courtroom. History of omission of the wrongdoing it turns up, was only partial. In a gratuitous motion by PG&E in response to the pollution at Hinkley, physician’s record was noted during Brockovich’s investigation:
“Erin Brockovich: [the inciting moment] I'm sorry. I just don't see why you're corresponding with PG&E about your medical problems in the first place.
Donna Jensen: Well, they paid for the doctor's visit.
Erin Brockovich: They did?
Donna Jensen: You bet. Paid for a checkup for the whole family. And not like with insurance where you pay and a year goes by and maybe you see some money. They just took care of it just like
Donna Jensen: that. We never even saw a bill.
Erin Brockovich: Wow. Why'd they do that?
Donna Jensen: Because of the chromium” (IMDB).
PG&E’s initial response to the pollution at the site serves as the basis to the composite of mediation evidence brought to the table by Brockovich’s law firm pre-litigation:
“Erin Brockovich: Annabelle Daniels: 714-454-9346. 10 years old, 11 in May. Lived on the plume since birth. Wanted to be a synchronized swimmer so she spent every minute she could in the PG&E pool. She had a tumor in her brain stem detected last November, an operation on Thanksgiving, shrunk it with radiation after that. Her parents are Ted & Rita. Ted's got Crohn's disease, Rita has chronic headaches, and nausea, and underwent a hysterectomy last fall. Ted grew up in Hinkley. His brother Robbie, and his wife May and their five children: Robbie Jr, Martha, Ed, Rose & Peter also lived on the plume. Their number is 454-9554. You want their diseases?” (IMDB).
Still, the end result of the suit and the decision making process that would follow in the form of adequate and sufficient clean-up of the polluted area, in addition to the award of much owed compensatory damages to the plaintiffs for egregious toxic exposure to PG&E’s mistake speaks to Abramson’s model of mediation from the perspective of the utility company; and its obligation to public sector duty rather than individual concern (Abramson).
The model proposes that problem-solving is relevant and opportunistic, rather than erroneously displaced in relation to the goals and objectives of litigation as an exclusively adversarial negotiation without mutual benefit. Abramson’s structural approach to attorney representation assumes that problem-solving provides a comprehensive approach to negotiation; one that is competent deal with unanticipated challenges to the case during mediation.
The presumption that mediation is also a form of advocacy in Abramson’s theory infers a proactive stance in all practice: 1) Mediators' Orientations; 2) Mediator’s Techniques; and 3) Mediators' Control of the Mediation Stages, Table 1 (Abramson).
If one is to assume that mediation skills might be applied to the dispute, Anderson et al. v. PG&E, the role of Erin Brockovich would be central to the development of data in preface to the mediation. Mediator orientation has much to do with the direction of negotiation. However, the reliance on accurate information showing probable cause-in-fact in the tortfeasor lawsuit is highly relevant to the outcome of the case. Unlike a caucus panel jurying a mediation case, a lawsuit such as the one to result from Brockovich’s investigative inquiry is ultimately decided upon according to judicial opinion.
Problem-solving contributing to discovery and evidentiary proceedings in the analysis and review of data generally informs a mediator’s orientation. Advocacy in one direction or another in deciding the case is typically subject to rule stipulations to “reasonableness”; and this mirrors common law tort framework to duty to a standard of reasonable care in the pursuit of professional decision.
This point is pertinent to both the review of a corporate defendant countering a claim of gross negligence, as well in iteration of the best practices of advocates during mediation, as well as in the courtroom in attorney representation and judicial action. Problem-solving then is not arbitrary nor without limits in rule application. Enforcement of legal principles in tortfeasor cases illustrates how ethics serve as the foundation to court decision.
Determination that PG&E had covered up its acts of recklessness clarified that duty was not practiced according to rule of law, and that failure to disclose groundwater pollution to the public after the fact confirmed impropriety in conduct. Without knowledge, a mediator would not have the tools to brainstorm creative solutions that might assist the corporation in mitigating damages.
Professional parties involved in the PG&E case were prompted to “formulate a strategy designed to convince the mediator to recommend a favorable evaluation” and this resulted in remedy of the plaintiffs (Abramson). When Brockovich and her firm brought the threat of environmental tort lawsuit to the attention of the company, it again declined to act in a responsible manner. According to Abramson, the constriction of problem-solving by PG&E as a measure of resolving the dispute blocked any option outside of adversarial relations. No settlement could be reached in negotiation with the company, making the court order the sole mechanism of exercising justice.
- Mediators' Techniques
Advocacy requires information. In the case study of Anderson et al. v. PG&E data gathered by Brockovich served evidentiary proceedings on behalf of the plaintiffs in the courtroom. The collection and analysis of data was essential to fulfilling mediator techniques, as the attorney representing the plaintiffs’ required substantial basis for arguing the case.
Use of data in a public BATNA created by Brockovich’s firm provided the information needed to evidence liability in the negligence calculus. For this reason, probability of success in court was high, as exponential risk was testable and graphically illustrated in a decision tree for the court. The BANTA also served in calculation of risk proportionality required to designate financial accountability to damages; a “critical benchmark when weighing whether to settle or continue litigating” in the case (Abramson).
3. Mediators' Control of the Mediation Stages
The problem-solving process proposed by Abramson “follows somewhat predictable stages from beginning to end” during negotiation (Abramson). Mediators generally work toward identification of impediments to settlement. PG&E’s singular focus on buffering liability to distribution of remedies for the alleged act of environmental negligence in the City of Hinkley, left open two possibilities: 1) pre-litigation settlement and clean-up; or 2) litigation. The legal negotiation of a corporate negligence lawsuit in Anderson et al. v. PG&E is consistent with the similar suits of this sort; and therefore subject to customary timeframes and actions toward resolution.
Where not resolved outside of court through mediated problem-solving, negotiation of such a case is constrained by due process. The decision to negotiate from an adve`rsarial position led to the legal matter. What took place in court was a more limited approach to mediation of disagreements; ultimately decided on behalf of the plaintiffs whom had sustained substantial pain and suffering in response to gross negligence.
As of 2013, what has become known as the California Environmental Protection Agency’ “PG&E Hinkley Chromium Cleanup” in response to the ruling in Anderson et al. v. PG&E, is still underway (California Environmental Protection Agency). The project is scheduled as ongoing until completion.
Within the annuls of academic scholarship on mediation and conflict management, Anderson et al. v. PG&E offers important insight into a generation of thought dedicated to development of new tactics and theoretical frameworks to manage environmental risk. In review of U.S. Congressional Superfund criteria for risk assessment used in evidentiary proceedings in gross negligence cases, the instrumentation of advocacy and mediation emerges as a critical factor in court decision.
The application of both the Ecological Risk Assessment (ERA) and Natural Resource Damage Assessment (NRDA) in environmental gross negligence cases to determine liability is mechanistic to the negligence calculus, and determination of proportional risk to compensatory remedies to damages in tortfeasor remediation. Probable injury defines the parameters of economic modeling. The baseline assumption to this remediation approach is that adjudication of the terms to joint and several liability is likely to be more precise where toxic tort negligence is found to be shared.
The fact that structural conflicts are some of the most difficult to work out in a mediation model designed for negotiated settlement between two parties where more than those two actors may be involved, edifies that impasses in conflict management are very often the reason that such disagreements end in court. Oversight of the “PG&E Hinkley Chromium Cleanup” by the California Environmental Protection Agency reveals that principal-agent conflicts may be subject to governance, geographical, technological or time constraints that cannot be met during an initial mediation process.
Settlement authority is also reliant on the contract of expert administration of such clean-up processes once an environmental liability case has been decided against a corporate defendant (Abramson). This obviated in the time to remedy since Brockovich’s investigation of the violation over twenty years ago.
Abramson, Harold. “Problem-Solving Advocacy in Mediations: A Model of Client Representation”. Harvard Negotiation Law Review 103 (2005).
Erin Brockovich: Quotes. IMDB, 2000. <http://www.imdb.com/title/tt0195685/quotes>
Girardi& Keese. Rexwriter, nd. <http://rexwriter.com/Rex_Maurice_Oppenheimer/Nonfiction_files/GIRARDI%20%20and%20KEESE%20(Law%20Firm)%20.pdf>
PG&E Hinkley Chromium Cleanup. California Environmental Protection Agency, 2013. <http://www.swrcb.ca.gov/rwqcb6/water_issues/projects/pge/index.shtml>
Soderbergh, Steven. Erin Brokovich. Universal Studios, 2000.
Wilmot-Hocker Conflict Assessment Guide, 1998.