Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced legal professional.

It’s understandable that many complications and conflicts may arise in the process of a public buyout. However, much time, effort and money can be saved if negotiations begin with a thorough analysis of any potential agreements and a commitment to a fair and equitable process. The Missoula buyout of the Mountain Water Group is a lesson in the necessity of mediation at an early stage during these large transactions that rest upon an enormous amount of tax-payer money.

History of Conflict

Water cases often have a long history of conflict among various local interested parties. The Missoula water takeover was no exception. The company and the City were wary of each other after the city had apparently engaged in aggressive litigation during condemnation proceedings. Just because Montana law supports a public takeover of a natural resource, there is no reason to assume these proceedings will go smoothly without a commitment to fairness and due process.

NBC Montana recently sued the city for information, arguing that the public had a right to know how much money was spent on litigation during the buyout. It was revealed that the City estimated attorney fees at around $400,000 but they rose to around 15 million. The company is also arguing they should be compensated more for legal fees, claiming that the city’s aggressive litigation forced them to spend money on costly legal defense.

At BCS, we mediate conflicts and proceedings involving stewardship of environmental resources. Key to our approach is the commitment to common public good. We regard the environment and the resource itself as a party who sits at the table. Thus, maintaining the quality and sustainability of a natural resource becomes a common objective, making it more likely talks will revolve around future planning rather than past conflicts.

Getting it right from the beginning

In any mediation over a natural resource, many parties and interests will be brought together. This is why preparation, transparency and thoroughness are so important. When public proceedings must take place to secure the transfer of a natural resource, mediation and trial preparation can make the process go more smoothly. All information that pertains to the sale of any company and the commitments of parties to each other should be fully disclosed, before any deal can be made that compensates everyone fairly. We are Bozemann, MT mediators and negotiators who believe preparation, planning and analysis is critical to successful mediations. Mediate early and often and do not skip over any detail. If “lawyering up” is your only strategy to get the other side to comply, there is a missed opportunity for more strategic disclosures and a more thorough, practical process that averts conflict before it can become a chronic problem.

In addition, mediation is much cheaper than litigation. It resolves more quickly and mediators do not typically charge astronomically high fees. A balanced team of attorney advocates and mediators can help to negotiate large public deals over environmental utilities with more ease than two sides with armies of lawyers and no conflict resolution strategy. At BCS we use mathematical and negotiation tools such as game theory to help parties see the big picture. Often parties will engage in messy, costly fights to get what they want. The analysis that takes place in mediation can easily show that the most direct route from A to B is actually to avoid conflict. A top priority in environmental mediation is to avoid a “tragedy of the commons” where common resources are spoiled and no one gets what they want. In this case, the common resource was water, but turned into taxpayers’ money. With a more thorough process and commitment to conflict resolution, agreements over common resources can go more smoothly, making it a better deal for taxpayers, municipalities and private companies.

Who We Are and How We Can Help

We are well-educated Bozemann MT mediators and negotiators with financial, legal, and psychological backgrounds who can analyze your land or water conflict and provide win-win solution sets, using analysis, consultation, mediation, or negotiation. Water is the basis for our human survival, so it’s easy to see how conflicts can quickly become emotional. We recognize that conflicts about water rights can have deep historical roots and require a thorough analysis of sustainable solutions, drawing on the knowledge of experts and parties alike. By employing careful scientific, mathematical, and legal knowledge, recognizing the important values and interests of all stakeholders, and utilizing practical techniques informed by game theory, psychology, and solid strategic and tactical techniques, our Montana mediators can help any and all parties achieve their goals. This approach to conflict avoids costly and protracted litigation, creates sustainable solutions, and develops long-lasting relationships that can pave the way for increased co-operation and better policy on water management and rights. Conflicts over water come in a wide variety of forms: water quality, grazing rights, stream rights, usage rights, community rights, groundwater and surface water and drainage conflicts to name just a few. We can mediate any and all conflicts over water, saving money and crafting solutions built to last for both individuals and the community. During the Coronavirus crisis we are offering accessible, safe remote mediations via videoconferencing platforms like Zoom or Facetime. All remote mediations are completely confidential with the added security of a private, encrypted server. We are available 7 days a week and at urgent notice. Please contact us to see how we can help.

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