Alternative Dispute Resolution

Dan Dozier provides alternative dispute resolution (ADR) services to help people and organizations solve problems efficiently and effectively. He works as a neutral to solve complex environmental, civil litigation matters for businesses, governments, and non-profit organizations throughout Maryland, the District of Columbia, Virginia and nationally.  

Dan understands that many different approaches can resolve problems. He has the experience and perspective to know that legal problems are not always best solved through litigation. 

With more than 40 years of ADR Law experience, Dan provides the following types of ADR services as a neutral:

• Arbitration
• Mediation
• Facilitation and Consensus-building
• Stakeholder involvement programs.

To determine which method of dispute resolution services to consider, serving your best interests is his driving concern. Some of the factors that should be considered are the strength of your case and the cost-effectiveness of different approaches.

“In mediating several complex cases in which I represented a party, Dan Dozier exceeded our expectations for successful resolution of the issues short of litigation. By reason of his obvious knowledge of the underlying law and his forthright assessment of our strengths and weaknesses, we never questioned his judgment. He conducted each of the mediations with a demonstrated respect for all of the parties involved and led us to conclusions with which we (and I suspect all of the parties) were most satisfied.”

R. Howard Grubbs, Retired Member, Womble Carlyle Sandridge & Rice, P.LLC

Mediation

Mediators serve disputing parties by working as a neutral to help them reach agreement. The mediator generally meets jointly with the disputants and also privately in individual caucus sessions. A mediator cannot impose a binding decision in a case. If the parties agree to settle, the mediator and/or the parties draft a written settlement agreement which may be a binding contract between the parties, can be entered as a Consent Decree. The mediation process may run the spectrum of mediation “styles” from facilitative to evaluative, depending on the needs of the parties, their ability to negotiate independently and the possibility of an impasse.

Attributes of Effective Mediators

In mediation, not one single approach is appropriate in every case. Many conflicts require various different interventions during the course of the mediation. Effective mediators must use different styles of mediation based on the needs of the parties and the nature of the dispute as disputants often need more than simple process assistance from a mediator. The best mediators provide advice and information about substance and have skills that are not simply about process, including:

• Understanding of the legal and technical issues
• Engagement with the parties to understand their interests
• Creativity in working with parties to design effective solutions
• Wisdom to understand the human and personal factors involved
• Strategic advice about how to understand how to address concerns
• Patience and optimism 
• The ability to encourage participants when they are about to give up
• Humor 

Mediation Styles

In facilitative mediation, the mediator assists the disputants to communicate more effectively but will not engage in rigorous analysis or evaluation of the substance or merits of the dispute. Parties will be encouraged to develop their own settlement options. By comparison, evaluative mediators are likely to be more aggressive in seeking concessions. An evaluative mediator may engage in proactive “reality testing” of the strengths and weaknesses of party views, generally in private caucuses and may propose settlement alternatives. Reality testing gives parties the ability to make a more objective analysis of their positions. Thus reality testing can provide a different and sometimes more realistic view of their case. 

An evaluative mediator, generally in private caucuses, may be called on by the parties to express views about the parties’ case, the strength and weakness of their arguments, the importance of facts, legal arguments, or other matters that may change views about some aspects of their case. Evaluative mediators also sometimes coach parties about how to present their case in chief so the other parties will be most receptive to hearing the views from the other party(ies).

A caucus session is when the mediator meets privately with only one party. During such caucuses, the mediator may ask parties to respond to an opponent’s claim or defense. In doing so, the mediator can test the views to assess how close or far apart they are from each other. A mediator should work to educate parties about important aspects of their case and discuss issues, arguments, and facts that a party may have discounted when considering the strengths and weaknesses of their case. 

Dan’s mediation style, which he calls analytical mediation, is very much context dependent. He fits his style to the needs of the participants and the nature of the case. Mediations may begin as largely or entirely facilitative but over time move along the spectrum to include more evaluative techniques as the process progresses and as appropriate. 

Analytical Mediation

Mediating complex, sometimes large group processes generally involve parties with diverse and sometimes conflicting concerns, cultures and organizational differences. This requires a mediator who is sensitive to the issues, different negotiation strategies and styles of the parties. Initially, a more reserved style may be appropriate, providing parties opportunities to express themselves and interact with the other parties and interests. If communication becomes difficult because of emotion or the inability to hear the interests of others, the analytical mediator may need to manage dialogue to clarify the messages being delivered. 

Dan’s approach depends on the case, the forum, and the format requested by the parties, but generally he is a merits-based mediator. When requested and where, in his judgment, the parties would benefit, he assists on a more evidence-based or evaluative approach. He believes that persistence, humility, and good humor are all good characteristics of a facilitator/mediator in nearly every case.

In complex cases parties expect the mediator to be familiar with the issues and for the mediator to be actively involved in the negotiation process. Parties also expect a deep understanding of how governments and large bureaucracies work, how policies are developed and implemented by governments, private companies, tribes and volunteer organizations and the pressures and various factors influence how organizations weight options and make decisions.

Facilitation and Consensus-Building

Dan Crafts Strategies Designed to Achieve your Objectives in the Most Effective and Efficient Way

In multi-party cases, a neutral facilitator assists parties to achieve their goals by designing meeting processes, establishing ground rules, and running effective meetings. Using an outside facilitator allows meeting participants to focus on the meeting substance and to more freely express their concerns . Facilitated meetings increase productivity by keeping participants on task and ensuring clear communications and that all voices at the table are heard. When there are public elements in the process, Dan’s facilitation style allows him to track and organize people’s expressions and views.

The goals of facilitated meetings may range from exploring and discussing issues, to educating participants, gathering public input, making recommendations or decisions or combinations thereof. When the goal is to develop recommendations or make decisions, the mediator or facilitator works to build consensus among the participants to develop agreements that work for the stakeholders, leading to effective implementation.

Arbitration

Working as a Neutral to Solve Complex Environmental and Civil Litigation Issues

Dan Dozier has the experience and judgment to understand that many legal problems are not always best-solved using litigation. His work as a neutral mediator and arbitrator has helped parties over the past forty (40) plus years has helped parties resolve environmental and civil litigation disputes across the nation.

In arbitration, disputants voluntarily agree to submit their dispute to a neutral third party, who takes testimony and considers the parties’ arguments, evidence, and the law. The arbitrator then develops a written decision analyzing the issues a binding award. Arbitrators, who are generally selected by the parties, often in written contracts, can have special knowledge or training in the matters in dispute and frequently make decisions faster and more cost-effectively than a court can. Arbitral awards are enforceable in court and are not subject to appeal, absent fraud or in other very limited and unusual circumstances.

Because the parties select the arbitrator(s) and have substantial flexibility when designing the arbitration procedures and schedules, they can reduce the formality and cost of arbitration compared to traditional litigation.  

Representative Cases

Barrow Landfill, Barrow, AK. Dan mediated the establishment of an allocation procedure and then was selected by the parties to allocate costs of the cleanup of a landfill located in the northern-most community in North America. Parties included the U.S. Navy, the U.S. Air Force, the North Slope Borough and others. Dan obtained information regarding waste disposal practices on the North Slope, including conducting 20 interviews with witnesses. He then drafted a lengthy report summarizing and evaluating the history of waste generation, disposal, and landfill facility operations in Barrow. Dan wrote a report summarizing the history and recommended an allocation among the parties. The parties then authorized him to mediate their successful negotiations to settle the allocation dispute.

Conservation Law Foundation, Inc., et al. v. Donald Evans, et al., U.S. District Court for the District of Columbia. Dan was appointed by the United States District Court for the District of Columbia with agreement of the parties to mediate settlement discussions regarding the New England groundfish fishery’s conservation and management requirements to comply with the Magnuson-Stevens Fishery Conservation and Management Act and the Sustainable Fisheries Act. A majority of the parties reached agreement on a suite of measures to address overfishing in the Gulf of Maine and the Georges Bank. One of the industry parties described the settlement between two of the three fishing industry clusters of organizations, four States, the National Marine Fisheries Service, and the Conservation Law Foundation as “without exaggeration, nothing short of historical.”  

Elizabeth River Sediment Contamination at the Atlantic Woods site, Portsmouth, VA. Dan and a neutral colleague arbitrated an allocation dispute between parties regarding sediment contamination in the Elizabeth River related to alleged contamination by parties to contamination at the Atlantic Wood Industries Superfund site. They produced a written Allocation Report analyzing the extent of contamination, potential migratory pathways, and sources of soil and sediment transport in the river to allocate responsibility for the cleanup based on the parties’ contribution to the cleanup costs and other equitable and statutory factors.

Gulf Oil Spill Expert Witness. Dan provided expert consulting services to a partial owner of a lease at the Macando well in the Gulf of Mexico. He provided  confidential advice and analysis about the parties’ liability for an oil spill from the well, in particular about allocation of liability and costs among PRPs under the Oil Pollution Act of 1990, the Clean Water Act and other related statutes.

I-73 Interagency Coordination Process Facilitation, Columbia, SC.  Dan facilitated a two-year series of interagency coordination meetings that reached consensus on matters related to the permitting of a new interstate multi-modal transportation corridor in South Carolina.  The process increased agency and public involvement and enabled parties to reach consensus on difficult natural resource and permitting decisions.  It improved the NEPA and Sections 404/401 permitting process and reduced the time taken to permit the project by nearly four years while enhancing interagency communication and relationships.  Participants included South Carolina and federal natural resource, environmental, historic, Native American, economic, and transportation agencies. 

Midnite Mine Site Facilitation, Spokane Tribe of Indians Reservation, WA.Selected by the parties, Dan mediated discussions between the Spokane Tribe of Indians, the Bureaus of Land Management and Indian Affairs and EPA regarding federal Indian law, land-management, future use, and cleanup issues related to this inactive, open-pit, uranium mine that is located approximately 45 miles northwest of Spokane, Washington, within the reservation of the Spokane Indian Tribe on both tribal trust and individual allotment lands.  Parties included EPA Region 10, the Spokane Tribe of Indians, and the Department of Interior.

RMT, Inc. and Southwire Company Mediation, Wisconsin and South Carolina. Dan was jointly selected to mediate a contract dispute regarding a Master Environmental Services Agreement and a Contract for Comprehensive Corrective Action and Environmental Management Services, both related to the remediation of ground and storm water contamination at the Gaston Copper Recycling Corporation (“GCRC”), a former copper and precious metals recycler and secondary copper smelting facility.  Based on Dozier’s mediation, the parties settled without litigation.

South Carolina Department of Health and Environmental Control vs. Western Atlas, Inc. (f/k/a Litton Industrial Automation Systems, Inc., and successor-in-interest to Litton Business Systems, Inc.), Safety-Kleen (TG), Inc., Safety-Kleen Systems, Inc., and Hoover Building Systems, Inc.; United States District Court for the District of South Carolina, Columbia Division. Dan was selected jointly by the PRPs and the state Department of Health and Environmental Control to mediate a complex case regarding groundwater contamination, liability, and cost allocation. Some of the issues included whether one of the parties arranged to dispose of the hazardous substances that had contaminated the groundwater and scientific reliability of some of the evidence. Based on the mediation, the parties settled the case.

State of New Jersey Enhanced Motor Vehicle Inspection Program Stakeholder Involvement, Trenton, NJ. Dan managed an extensive stakeholder consultation and public involvement program to advise the State about the design and management of the State’s motor vehicle emissions and safety inspection program of approximately 2.5 million vehicle inspections per year. He designed and conducted a public meeting and convened and facilitated two stakeholder meetings regarding the program options.

Spokane Tribe of Indians and Newmont Mining Company Mediation. Dan was selected jointly by the Newmont Mining Company and the Spokane Tribe of Indians to mediate a set of issues related to remedy implementation and other issues at the Midnite Mine, a former uranium mine located on the Spokane Tribe of Indians reservation.

Sugarbush Ski Resort Water Dispute, Waterbury, VT. Dan successfully mediated the a high profile dispute between a major ski resort, the state natural resources agency, and environmental and conservation groups over water withdrawal rights for snow making (see Finding the Common Good: the Sugarbush Water Withdrawal Case ) for an article about the case.

Tulalip Landfill, Marysville, WA. Dan convened a PRP group and mediated discussions between PRPs, EPA and Federal defendants about allocation procedure at the site. He also facilitated discussions among parties and between PRPs, EPA and tribal government about future use and potential remedies at the site. Dan was then selected by parties to issue Pilot Project allocation award to settle allocation disputes between non-settling parties and produced a final allocation award settling remaining issues.

United States v. American Iron and Metal Company, et al., U.S. District Court for the Western District of Pennsylvania. Selected jointly by EPA and the defendants, Dan successfully mediated cost recovery litigation between EPA and a group of PRPs about the costs of response actions taken at the Remacor, Inc. site in West Pittsburg, PA., a magnesium recycling facility.

United States v. Coffeyville Resources Refining & Marketing, U.S. District Court, District of Kansas. Dan was jointly selected by the litigating parties to mediate their settlement negotiations and develop Consent Decree language regarding claims for penalties and injunctive relief filed the U.S. Coast Guard for alleged violations of Sections 301 and 311 of the Clean Water Act (33 U.S.C Sect. 1311, 1312) related to an oil spill of approximately 2145 barrels; for reimbursement of removal costs, interest, administrative costs, and attorney fees under Section 1002(a) of the Oil Pollution Act of 1990 (33 U.S.C. Sec. 2702(a)) incurred by the United States; and for alleged violations of the Risk Management Program regulations (40 CFR Part 68) and Section 112(r) of the Clean Air Act, 142 U.S.C. Sec. 7412(r).