Could mediation get BP out of “Deepwater”


The 2010 Deepwater Horizon oil spill in the Gulf of Mexico stands as the United States’ worst ever offshore oil spill, and on 25th February this year, the high-stakes trial to determine how much more BP and other companies should pay began. Stuart Smith, an attorney at Smith Stag, represents a number of clients who have refused to settle with BP. “This is a case that needs to be tried,” he said. “The truth needs to come out and the only way you are going to do that is with a trial.”

But is a trial really the only way to get the truth? Mediation is used frequently in the US before trials take place, and many private sector plaintiffs have reached out of court settlements with BP. Should the US Government have taken this case to court without trying to mediate at least some of its aspects?

The British energy giant has already resolved thousands of lawsuits linked to the disaster out of court, including a record $4.5 billion plea deal with the US government in which BP pleaded guilty to criminal charges, and a $7.8 billion settlement with people and businesses affected by the spill.

Judge Barbier, who is hearing the case,  has promised he will not let the case drag on for years in the same way that litigation over the 1989 Exxon Valdez spill has, which is still  unresolved some 24 years after the event. However the complex litigation processes that will inevitably take place in the BP case may open the door to another lengthy case. The trial is now in its sixth week of proceedings and if no deal is done, the government and BP will go to trial again in September for further litigation that will inevitably rack up high court costs.

Many of the issues identified by US authorities as grounds for litigation, such as the loss of eleven lives and extensive environmental damage, focus on environmental, social and moral issues, and ADR could certainly have been considered in this case before the parties decided to take proceedings to court. This would have led to a reduction of not only the financial costs of litigation, but also the time taken to fully explore the issues of the case. Another advantage mediation would have brought to this situation is confidentiality. Bob Dudley, BP’s Group Chief Executive stated “since the spill, we have worked hard to rebuild confidence in the company”; a reminder of this disaster highlighted by a public trial can do no favors for BP’s publicity.

In many cases one of the parties in a dispute may simply be looking for a sincere apology from those who they feel have wronged them, and it is clear that the adversarial nature of court proceedings may not result in people feeling as though BP are truly sorry for what has happened.

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By Gaby Goundry


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Gaby Goundry
Gaby Goundry is a contributor for CEDR. The Centre for Effective Dispute Resolution (CEDR) is an independent, non-profit organisation with a mission to cut the cost of conflict and create choice and capability in dispute prevention and resolution.