CHAPTER 9 HOW AND WHEN TO MEDIATE NATURAL RESOURCE DISPUTES
| Jurisdiction | United States |
(Mar 1984)
HOW AND WHEN TO MEDIATE NATURAL RESOURCE DISPUTES
The Mediation Institute
Seattle, Washington
"Alternate dispute settlement" has some super-salesmen — from Chief Justice Burger to your local divorce mediation entrepreneur. New approaches to settling conflicts have become so chic that social scientists are now referring to the "dispute resolution industry". Too often the "industry" is based on pollyanna notions of the value of sitting down and reasoning together without any real experience or understanding of what is required to make such efforts worthwhile — or of the risks of failure. As one researcher reported, "Repeatedly we found that third parties have not been improving matters. Indeed, one might argue that they have been confusing the situation."1 There are some very clear factors what will determine whether or not alternate dispute resolution will be successful. To ignore them is foolhardy. Where an effort fails it can be worse than not having tried. The watchword with dispute resolution salesmen — as with any other — should be caveat emptor. And the time to be most careful is when someone is giving it away.
This morning, I would like to help you become a more informed consumer by reviewing what "negotiation" and "mediation" are, exploding some of the persistent myths that make it difficult to make informed choices, and suggesting a checklist to help you evaluate whether the situation, mediator and process are appropriate.
I. DEFINITIONS AND FOCI
1. Negotiation:
Simply stated, "mediation" is negotiation with the assistance of an independent intervenor or "third party". Negotiation is a tool familiar to managers and attorneys. The manager negotiates
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with unions, suppliers, customers, subordinates, bosses, peers and other departments. Attorneys settle a large majority of legal actions by negotiation. Negotiation is the "art of the possible", a mutual recognition that there are limits on unilateral action and that there may be solutions more advantageous than continued conflict.
Our broadest experience with mediation is in the labor-management context. There, the mediator enters negotiations when they are approaching or have reached a stalemate. He or she must be acceptable to all of the parties involved in order to fill a useful role. The mediator carries messages, facilitates joint discussions and can provide the impetus or excuse for re-examining positions. The mediator is independent of the parties and is not party to any agreement that is reached.
The biggest similarity between the mediation of labor disputes and the complex economic/environmental conflicts with which we are concerned is that both involve organizations and interests represented by spokespersons. Everyone affected cannot possibly participate in face-to-face discussions and any agreement reached by representatives must be ratified to be implemented. This dynamic of "representative bargaining" makes these complex disputes as different from conflicts and negotiations between individuals as checkers is from football.
The most important difference between labor and complex environmental disputes is the latter's lack of a pre-established working relationship between the parties. They also lack a framework of legislation and past-practice which provides a basis for conducting negotiations and formalizing and implementing agreements. Such essential questions as who the parties are and the issues for discussion cannot be assumed. These realities, along with the mix of formal and informal interest groups, private corporations and governmental entities that comprise the parties to a typical dispute, make the negotiations process far more complex to establish, conduct and conclude.
The labor negotiation model is, however, an important point of departure for understanding the application of the process. It defines for us the nature of negotiations — a process where the parties agree to seek a mutually acceptable, formal accomodation to their differences. A prerequisite is a recognition of the need for joint participation as equal partners in the search for that accomodation. The corollary to this recognition is a commitment by all participants to be bound by any agreement reached.
2. Mediation:
The term "mediator" describes a relationship between the intervenor and the disputing parties. That relationship has four critical attributes: 1) the mediator is independent of the parties; 2) the mediator serves at the mutual pleasure of the
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parties; 3)the mediator's attention is focussed on the process of dispute settlement, not the substance of the dispute; and 4) the responsibility of the mediator is to help the parties find a mutually acceptable settlement through their joint efforts.
In discharging these responsibilities in environmental disputes the mediator is likely to perform three major tasks: 1)acting as a convenor in assisting the parties to define the terms and conditions under which they will negotiate; 2)acting as a broker, representing the interests, concerns and ideas of the parties to one another, often outside of joint sessions; and 3)acting as a facilitator in joint sessions.
For each of these tasks, the mediator will employ a variety of skills including the ability to listen and hear the parties' underlying concerns, interpreting intent and inference, acting as an "agent of reality" and the more mechanical skills of running a meeting and helping to draft positions and settlements.
There is a good deal of confusion in the dispute resolution industry over the differences between the role or relationship of the mediator or other intervenor and the specific tasks they perform or skills they employ. For example, one can be a facilitator or even a broker while in the employ of one of the parties to a dispute. Many "public participation" practioners are very good at convening joint meetings but because they are the agents of — are paid by — one of the affected interests they cannot be mediators. It is important to understand these differences in order to evaluate the performance of the intervenor and to assess what they (and the process they espouse) can reasonably be expected to achieve.
The negotiation process, with or without a mediator, is best adapted for settling specific, visible disputes. Other processes may be more effective for avoiding disputes or for dealing with broad public policy questions. Some of these have been discussed already at this Conference. Successful mediation will result in a mutually acceptable, written agreement to which the parties are formally and publicly committed. It will spell out terms for performance and may establish a procedure for joint participation in the implementation of the terms of the agreement and for dealing with unforseen circumstances.
The negotiation/mediation process, therefore, is not an exercise in polite social discourse — or intercourse. It is a means of jointly dealing with the realities of power and conflicting values in an effort to find some solution that all affected interests can live with and live by.
In my comments this morning I will refer to "mediation" and you will understand that I am speaking of negotiation with the assistance of a mediator.
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II. SOME EXAMPLES
The mediation of complex environmental conflicts is no longer merely an interesting idea. It is a concept that has been tested by The Mediation Institute and others and, where carefully and appropriately applied, found to be effective. Some recent and current examples might be instructive.
1. The Pitch Mine Case.
Institute mediators assisted the Homestake Corporation and a large number of environmental and citizen organizations negotiate a settlement over the operation and reclamation of a uranium mine in Colorado's Gunnison National Forest. The agreements reached dealt with questions as varied as the maintenance of mine-site water quality, backfilling of the open mine pits, and the development of a methodology for the measurement of revegetation success. The provisions are incorporated into agency permit revisions, providing effective public oversight. A "Covenant-Not-To-Sue" signed by the organizations in the environmental coalition pledges them to refrain from legal actions so long as the Corporation abides by the agreements reached.2
2. The "CREST" Dispute
The "CREST" (Columbia River Estuary Study Taskforce) dispute grew out of competing priorities concerning the appropriate use of the Columbia River estuary. A bi-state plan had been developed by the Taskforce but had failed to gain the approval of state agencies and was opposed by conservation interests. The parties included four federal agencies, four state agencies, two cities, a port district and a county. Private interests also participated in the discussions. The result was a comprehensive agreement on "findings" or the data to be used in assessing future permit applications, areas to be developed and areas to be reserved for conservation, and specific conditions for development of particular sites. The agreements were ratified by the affected agencies and interests and now serve as the operative
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plan for development in the estuary.3
3. The San Juan National Forest Plan
Mediators from the Mediation Institute recently helped settle a dispute over the management of a portion of Colorado's San Juan National Forest. More than a dozen interests were deadlocked over such issues as the location and type of logging to be permitted, where roads would be built, provisions for grazing, protection for elk and other wildlife and the management of different types of recreation, ranging from backpacking to snowmobiling. A series of meetings resulted in a concensus on a comprehensive plan for dealing with all of the issues, making threatened legal action unnecessary.
4. The Off-shore...
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