The Environment in the Balance: Mediators are Making a Difference

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1 By Gail Bingham Originally published in ACResolution, Summer 2002 Humanity s relationship with the natural environment and our disputes with one another over that relationship touch our health, hearts, and pocketbooks in myriad ways. As you wash your vegetables for dinner tonight, think about the people at the U.S. Environmental Protection Agency (EPA) trying to deal with differences of opinion about how to implement new provisions of the Food Quality Protection Act concerning safety factors to reduce the risks to children of pesticide residues. As you water your lawn this summer, consider the growing competition for water supplies across the country. Who should get how much water, and how much should be left in our rivers and lakes as habitat for other species? If the roads are congested as you drive home from work, think about how the nearby neighborhoods would be affected if the roads were widened, either for mass transit or additional commuter lanes. Ask yourself what should be done about the about the disproportionate effect of pollution on the poor and racial minorities. And, imagine the controversies that arise over whether to change traditional access to federal lands for grazing cattle, timber harvest, recreation, or wildlife habitat. These and other potential conflicts over the environment often do not match the picture most people have in mind when they hear the word dispute. Instead of two sides, there may be dozens. What is at stake may not easily crystallize into a few, clear issues. Frequently, the number of questions that must be addressed in a single decision is staggering, and just as often, people disagree about what questions to ask. Most environmental disputes involve complex scientific information, conflicting data, and gaps in the data, all of which is exacerbated by the fact that the parties have different types and levels of expertise. Some parties may lack the power and resources to engage either in a fight or in an effort to resolve it. The high public and political visibility of environmental issues only adds a spotlight to already challenging situations. Today, the number and magnitude of environmental disputes is rising, and finding solutions only gets more difficult. Mediators are helping shape how we handle these disputes, and with the increased use of mediation are modifying the landscape of our social and political systems as well. A Growing and Evolving Social Innovation In the early 1970s, the conflict resolution professionals began to entertain the possibility that mediation might have something to contribute to the resolution of environmental disputes. Thirty years later, the field seems well established. My guess is that when we look back to today 10 years from now, we will see that mediation of environmental issues was entering a third phase. What will that be, and what were the first two phases? Phase I: Like any social innovation, environmental mediation began with experimentation. The environmental movement yielded dramatic changes in American legislation, thereby creating a whole new social, political, and legal landscape for raising important questions and for disagreements about the answers. The dominant question during the first phase of the environmental mediation field was whether and how mediation might foster constructive ways 1

2 to deal with the questions being raises. Philanthropic grants from the Ford Foundation, the William and Flora Hewlett Foundation, the Atlantic Richfield Company Foundation, and others supported this initial exploration. From the early 1970s to the early 1980s, more than 200 environmental and natural resources disputes were mediated, with parties reaching agreement in almost 80 percent of the cases. Then and now, the variety of issues and the combination of parties at the table varied enormously sometimes only government agencies dealing with a decision about a joint transportation project, other times only private parties allocating costs of a hazardous waste cleanup, and more often, a mix of dozens of public and private entities negotiation a consensus on anything from national drinking water regulations to a new downtown redevelopment plan. Because these situations also involved a wide variation in the degree of polarization of issues, the objectives of the processes used varied from simply restarting communications, to clarifying issues and options, to negotiating agreements, to jointly partnering on implementation activities. Phase II: By the mid-1980s, the field entered a new phase of expansion. It was as if individuals all over the country were making a statement with their pocketbooks that mediating environmental disputes had demonstrated enough success that they were willing to pay for it. As demand increased, so did the supply of mediators. While we still have a lot to learn, the shift in the 1980s to a market-driven, fee-for-service basis clearly indicated that there was a growing acceptance of this innovative means of addressing environmental problems. During this same period, state governments began to take an interest in mediation. With the assistance first from the National Institute for Dispute Resolution (NIDR) *, and then from the Policy Consensus Initiative, numerous states established offices of public dispute resolution. Staff in these offices carried mediation skills into the realm of state and local government decision making, fostering both increases in the use of mediation and in the competency of the institutions to use it well. Among the many states that have strong programs are Massachusetts, Ohio, Maryland, Florida, North Dakota, Montana, Oregon, and California. Federal agencies, led most publicly by EPA, were also early users of mediation. IN 1982, the Administrative Conference of the U.S. published a groundbreaking report outlining how mediation should be structured to make it consistent with administrative law and policy. Congress subsequently recognized the value of conflict resolution in two pieces of legislation signed into law in 1991 the Negotiated Rule Making Act and the Administrative Dispute Resolution Act (ADRA). The Negotiated Rule Making Act encourages federal agencies to develop rules by means of a mediated negotiation process that includes the parties who will be significantly affected by a rule, and requires that any agreement must be published in the Federal Register as a draft rule for public comment. With the goal of enhancing government operations and better serving the public, the ADRA encourages federal agencies to adopt policies on the use of ADR for the full range of agency actions, including rulemaking, issuing and * In 1999, NIDR became CREnet, which merged with SPIDR and AFM to form ACR in

3 revoking licenses and permits, contract administration, and litigation. Both of these statutes have helped to institutionalize the use of mediation (and other forms of alternative dispute resolution) and establish clear direction and rules for its practice (e.g., confidentiality provisions). In 1998, Congress passed the Environmental Policy and Conflict Resolution Act, which established the U.S. Institute for Environmental Conflict Resolution. The Institute s mission is to assist parties in the resolution of federal environmental, natural resources, and public lands disputes in a timely and constructive manner through assisted negotiation and mediation. It also maintains a roster of environmental mediators and provides assistance to those seeking access to mediators through the roster. Phase III: We now are experiencing the quiet beginnings of another shift in the field. So many people have been exposed to collaborative problem solving tools that we can now build on the experimentation and promote the extension of conflict resolution skills to professionals in all branches of government, the private sector, and public interest groups, I have no doubt that there will always be a place for professional neutrals, and that there will be growing opportunities for mediators in other practice areas who want to venture into the environmental arena. However, public decision-making can only become stronger if the parties to environmental disputes gain increased competency to manage conflicts without outside assistance. Mediators can contribute to this social literacy by reflecting on the special challenges of resolving public disputes and creating coaching and mentoring relationships where specialized, interest-based dispute resolution skills can be shared with others. The Challenges of Environmental Disputes Mediation has an identity and a set of values that connect practitioners across practice areas. We all help parties negotiate voluntary agreements. Most of us, to some degree, do so using the interest-based negotiation principles articulated in Getting to Yes (Fisher and Ury, 1982). However, in addition to the problems of positional bargaining that these general principles are intended to overcome, there are many reasons why environmental and other public policy disputes are difficult to resolve. Introducing a mediated process will not magically make these challenges go away. For a mediation process to be successful, it must be designed with these challenges in mind. Multiple Forums/Changing Incentives. Frequently, the same or related issues may be the subjects of simultaneous action at different levels of government an in one or more administrative, legislative, or judicial forums. Disputing parties may have different advantages in different forums, creating conflicting views about the best process to use. A mediated negotiation is just one more choice among competing forums. IN this situation, it is good mediation practice to conduct a feasibility assessment with the potential parties to a negotiation. All parties should believe they have something to gain, and non should fear that the negotiation process might harm their current standing in any of the available forums on the resolution of the issues. A key product of any feasibility assessment should be general agreement (often mediated) among the parties as to who will participate and in what way, the 3

4 scope of issues, any deadlines, frequency of meetings, information needed to make sound decisions, who the mediator will be (if any), and other ground rules. Multiple Parties/Issues. Because environmental disputes typically affect large numbers of interested parties and involve a multiplicity of issues, organizing the negotiation process may prove to be extremely difficult. Sometimes coalitions can be formed, allowing several parties to be represented by on negotiator. At other times, one must design ways to have conversations in large groups. This may involve establishing subcommittees, structuring simultaneous roundtable conversations at small tables, hosting open house formats, creatively using the Internet, or simply creating a context where taking turns to talk around a very large table still works. It is possible to manage multiple issues with subcommittees and/or a straw proposal from which everyone works. However, environmental mediators have an additional challenge in the potential for disagreements about how the issues are framed and the effect this has, not only on whose interests can be addressed in the negotiation, but also even on who is seen as a legitimate party. Issue identification and who has the right to participate require sensitive mediation of the process itself. Institutional Dynamics. Environmental and resource management conflicts are more often played out between organizations or groups than between individuals. Therefore, the individuals at the table must get proposals ratified by others who are not participating directly. Because each entity has its own internal decision-making process, neutrals (and disputing parties) need to know the degree to which each representative can speak for his or her constituency, make proposals, and commit to an agreement. Complex Scientific and Technical Issues. Sound scientific and technical information is essential for creating solutions that work. However, parties to environmental disputes are often confronted with large volumes of information that require broad-based expertise and may be subject to honest differences of interpretation. Furthermore, gaps and uncertainties in the available information base are inevitable as scientific understanding continues to grow. While models can be developed to help deal with scientific uncertainties, the models themselves can be sources of dispute between model builders or sources of confusion in negotiations where parties have unequal technical resources. Joint fact-finding processes, in which parties agree on the design of a model or study in advance, show considerable promise. Similarly, technical committees or information-sharing workshops have been used constructively to supplement policy negotiations. Inequality of Resources. Mediation processes are resource intensive in the sense that the parties take the time to negotiate with one another up front, and need funds for travel expenses, information collection, evaluation, and expert advice. While government agencies and private corporations are generally well funded and represented by paid staff, other parties may lack the necessary financial and technical resources to effectively represent their interests. Local non-governmental organizations, for example, must nearly always rely on financial contributions and unpaid volunteers. For the principle of inclusiveness to be realized in practice, adequate resources for participation and informed decision-making must be available 4

5 to all the parties. Resources provided by project sponsors is one model that has been successful. Public/Political Dimensions. Environmental disputes generally involve public issues, addressed in public forums, with laws, governmental institutions, and the medal all playing a significant role. Any mediation process must therefore respond with sensitivity to the press and open meeting laws and must attempt to arrive at outcomes that can withstand public scrutiny and comment. Embracing the rules of public decision making can only contribute to the perceived legitimacy of the decisions that result. A Model for the Future Disputes over environmental and other public policy issues can be a force for constructive change. It has been the high visibility of some of the conflicts over water and other environmental issues that has drawn our attention to new questions and values and given rise to important social debates. Conflict can help us redefine where we stand as a community or a nation, and force us to discover new paths to take us where we want to go. Conflicts can also tear at the very fabric of communities and national institutions, consuming unconscionable amounts of public and private resources in the process. The mediation profession can claim with pride that it has made a real difference in the ways such conflicts are resolved. This does not mean, however, that even after 30 years, we can rest on our laurels. We continue to face vexing questions. We should be worried if this were not so. As long as we remain curious, critical, and humble, we are more likely to be of service to the democratic processes of decision making that are at stake. Gail Bingham is the President of RESOLVE, Inc., a non-profit, environmental dispute resolution organization. She has been a practicing environmental and public policy mediator for more than 20 years, and is the author of several books on environmental dispute resolution, including Resolving Environmental Disputes: A Decade of Experience (The Conservation Foundation, 1986). She served two terms on the board of directors for SPIDR, as the first chair of the environment and public policy section, as president of the Washington, D.C. chapter, and on the first and third National Commissions on Mediator Qualifications. Ms. Bingham received a B.S. from the Huxley College of Environmental Studies at Western Washington University Bellingham, WA, and has done graduate work in environmental planning at the University of California, Berkeley. 5