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Resolving environmental conflicts
Jane E. McCarthy University of Washington Seattle, Wash. 98 195
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Environmental Science & Technology
Mediation, a process widely used to settle labor-management disputes, is highly experimental in the environmental area
The use and allocation of our natural resources has emerged as one of the most critical and divisive issues of our generation. Controversy and debate have served to identify the issues, order priorities and suggest alternate future directions. Now, we must address the difficult choices in a way that develops appropriate solutions and encourages the broad public understanding, trust and support necessary to implement them. Most environmental disputes are now fought in the courts or through the legislative process. In the courts environmental groups first established their legitimacy. Through successful litigation and a series of legislative victories these groups developed the power to influence and even participate in corporate and governmental decision-making. Recently, many of those involved in environmental conflicts-whether environmentalists, government agency officials or corporate decision-makers-have become increasingly concerned about the longer-term implications of using court confrontations as a means of developing equitable solutions to difficult trade-offs between economic and social growth, the distribution of resources and protection of the natural environment. Litigation is costly in both time and money and is often an inadequate forum in which to make decisions concerning environmental questions. In court the parties are obliged to tie their arguments to specific points of law. These points of law become the items in contest and they are not always seen as the real and substantive issues in the case. Most often, issues that reach the courts involve masses of technical data, produced by all sides to the controversy and vouched for by an impressive array of "expert witnesses". It is generally conceded that the adversary process in such cases tends to hinder the search for "truth" since each of the sides must bulwark its position with the scientific facts that support its cause.
The growing dissatisfaction with the use of both legislation and litigation as vehicles to pursue environmental objectives has led to a search for new ways to resolve environmental conflicts. An experimental approach now being tried is the use of the negotiation-mediation process. It is being pioneered at the Office of Environmental Mediation at the University of Washington in Seattle with support from grants from the Ford Foundation and the Rockefeller Foundation. The new approach The project team, Gerald W. Cormick and Jane McCarthy, took as their first mediation effort a 15-year-old dispute over flood control on the Snoqualmie River. In this dispute, citizens in frequently flooded towns were allied with local farmers in support of the construction of a flood control dam. Construction was opposed by environmental organizations, in nearby Seattle, who feared it would lead to urbanization which, in turn, would destroy one of the few remaining natural scenic and recreational areas within a 30-mile radius of downtown. Governor Daniel Evans appointed the mediators in an attempt to resolve this long-standing dispute. After se\ien months of intensive negotiations an agreement was reached that had the support of all the parties to mediation, the Governor and the locally affected government agencies and implementing bodies. In brief, the agreement provides for: a multi-purpose flood control, hydro-electric, and water supply dam on the North Fork (rather than the Middle Fork as was originally proposed) of the Snoqualmie a system of set-back levees in the middle valley that provide 100-year flood protection to developed areas a maintenance of a large portion of the middle valley in natural flood storage and recreational use a controlled pattern of development through the purchase of floodway easements and development rights and the establishment of a basin planning council to coordinate planning for the entire river basin. The agreement also provides for appointment by the Governor of an interim committee, composed of participants in the mediation along with a few other citizens, to direct the implementation of the agreement. The interim committee is provided with technical assistance from an advisory group representing various federal, state and local agencies. The agreement, the first of its kind in the nation, may point the way to a new approach to resolving environmental conflicts, one in which disputants have an opportunity to explore the issues that concern them and can lead to a resolution of the points of disagreement, rather than a win or loss based on often extraneous considerations.
In order to understand the mediation process as it is applied in environmental disputes it is useful to outline the nature of the process and the role of the mediator, and to discuss some of the tentative conclusions the mediation team have reached regarding its applicability in specific situations. Nature of the process Mediation is a voluntary process that encourages disputants to work together to resolve conflict. It has been accepted as a successful method for achieving settlement of disputes in a wide variety of fields. Originally designed to resolve labor-management disputes, the use of mediation has broadened to encompass public employment and community and racial conflicts. Unlike arbitration, in which the appointed arbitrator makes a decision which the parties have agreed in advance will be binding on them, mediation achieves settlement through joint problem solving. The mediated conflict is resolved when the parties themselves reach what they consider to be a workable solution that they can live with. While it should be stressed that the agreement to enter into mediation must be voluntary, in some circumstances the parties will be encouraged to pursue this process because of pressure exerted by an authoritative or influential outside source. For example, a Governor may urge utility officials and environmentalists to meet with an agreed-upon third party in an attempt to resolve a controversy over a proposed route for power transmission lines. Often these outside requests are exactly what the conflicting parties wanted but were hesitant to initiate on their own for fear of appearing weak to the opposing parties. Once the mediation process has been set in motion there are subtle forces that encourage the parties to continue to work within the established frame. For one, the warring factions may appear to be unreasonably rigid should they withdraw unilaterally. Once agreement has been reached, the mediation process itself provides credibility for the settlement and affords some protection against destructive challenges from splinter groups. Role of the mediator The most important role of the mediator in any dispute, and his primary purpose, is to facilitate the negotiation process. A skillful mediator can provide services to all parties, which they would be unable to obtain independently, including setting up meetings, contacts with the press and even providing secretarial services. As a facilitator, the mediator provides a bridge, a link between the parties, which can serve to open lines of communication. The mediator serves as an interpretVolume 10, Number 1, January 1976
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er of the power, positions, perspectives and even language between the parties; trying out possible areas of agreement that the parties themselves feel constrained from placing on the table. The mediator directs the conflict in a way that encourages settlement rather than leading to a hardening of positions. The mediator also can act as a scapegoat to help one or both parties to save face as they move from their initial positions. Mediation provides an opportunity for disputants to try out approaches to settlement through the mediator without committing themselves to a change in position. An effective mediator will use his skills to sound out how far each of the sides is willing to go in altering its position and thereby help the parties to find a mutually acceptable package. This concern for resolving differences augers well for the successful implementation of the final agreement. The process of jointly working out differences in one dispute can be an important learning experience, leading to improved or at least more rational future relationships between disputing parties. Another function the mediator performs in some instances is to broaden the number of interests represented in the dispute. For example, in a conflict over construction of a paper mill the mediator may include representatives of the labor force or an outside civic group, in addition to the initial disputants. Often, it is the extremists on each side who ignite the controversy. Frequently, it is the interested, though as yet uninvolved, groups who can work most effectively for reasonable solutions by presenting additional dimensions that had not been considered previously. The entry of new parties can also help to focus the mediation effort on achieving an accommodation rather than on total victory or defeat. Parties to environmental disputes may not be experienced in the negotiation process and the mediator may find it necessary to be part trainer. Such training may deal with: how to phrase and present positions how to interpret the actions and signals of the other side how to formalize an agreement. This is one of the most difficult roles for the mediator to perform since he must fill this support role with the parties while still maintaining his credibility. Environmental disputes usually involve decisions to be made in the political arena. The mediator must not only work for agreement between the parties, but must ensure that negotiations are moving toward an outcome that will be acceptable to outside political forces. Consequently, the mediator keeps lines open to affected government agencies to make certain the agreement does not hold surprises for those charged with implementing the recommendations. Conversely, this process of verification ensures the immediate parties to the process that they are not engaged in a sterile exercise. The mediation process also provides protection for decisionmakers by involving a spectrum of groups that provide broad support for the recommendations once they are accepted. In addition to providing vital communication links between the disputing parties and between these groups and the affected decision-makers in the larger community setting, the mediator can provide links with the outside technical resource persons. Questions of fact such as the amount of sulfur that will be emitted into the air from a particular manufacturing process, or the effects of thermal discharge from a nuclear power plant on fish species play a central role in some environmental disputes. The mediator affords a neutral point of entrance for experts, protecting their credibility through assuming responsibility for finding, engaging and perhaps even paying for expert input. This procedure can prevent the con42
Environmental Science & Technology
tamination of insights and data based solely on the source and sponsorship of the information. One further step can be taken by providing a “legitimation” service to validate data before it is actually used in the decision-making process. The mediator accomplishes this by being constantly aware of sources of available expertise and data, and by helping to develop the kind of atmosphere that would be most conducive to finding the best solution to problems. Since it is not uncommon to have several distinct environmental groups involved in the same controversy it may be necessary for the mediator to assist these several groups to find some common position on the key issues in order to provide some definable alternative position to other parties in the dispute. It is fruitless to explore possible areas of compatibility in the larger context of the dispute until the internal discussions among these groups who espouse similar positions are resolved. In the mediator’s favor In working to achieve a consolidated environmentalist position, the mediator has a number of factors working in his favor. First, environmental groups know from experience that they can effectively delay implementation of a proposed project but that total victory is an elusive, often unattainable objective. Second, the educational background of environmentalists permits them to be comfortable and effective when operating within the political process where accommodation is considered a desirable goal. Their educational background and training also causes many of them to be intrigued by the mediation process itself. As the process and the search for acceptable positions is explored they often become advocates of the mediation process and feel they have a stake in making the. process work effectively. Thus, a few of the environmentalists can be expected to work as mediators within and between their own groups to effect a unified position in response to opposing groups. Environmentalists generally use a strategy of delay to prevent or halt an action that is perceived as detrimental. Delay is typically sought through the judicial system or before regulatory agencies. Environmental activists have become so accustomed to using delay as their primary tatic that the mediator must be aware that it may also be used within the mediation process. To counteract this tendency the mediator can impose deadlines, such as a date to report on progress to a high-level decision-maker or a deadline by which the mediation must be concluded, with or without an agreement. In other situations an expected change in local or state leadership may provide the leverage to encourage settlement. To achieve resolution of the conflict the mediator must be constantly alert to ways in which prolonged conflict will work to the disadvantage of one or other of the parties. Aside from the conscious use of delay tactics mediation is often prolonged by the need for the environmentalists to check back with their constituencies and the need for the mediators to be assured that the top-level government decision-makers concur with the direction being taken. Attempts to progress prematurely toward settlement, before the painstaking checking has been accomplished, are likely to have little positive value. Observation on the use In approaching the resolution of environmental conflicts there are clearly many instances when mediation should not be attempted. Mediation would be inappropriate when one or
terms of resources, future uncertainties, and public censurethat an accommodation of differences is a more desirable alternative than outright confrontation. In environmental dispute situations where power parity has been achieved there is often a willingness to reach an accommodation based on the recognition that defeat of the opposition is neither a realistic nor a completely desirable alternative. Another limiting factor is the negotiability of the issues involved. Mediation can take place successfully only within the framework of accommodation. If the issues in conflict are perceived to be non-negotiable, mediation will be a futile experience. An example of this situation may be a conflict over construction of a nuclear power facility. If the parties opposing construction view radiation from the proposed plant as a health hazard it would be unwise to attempt to mediate within the context of the conflict as then defined. In some circumstances it might be possible to negotiate to obtain another form of power generation, such as a coal- or oil-fired conventional plant, but if the dispute precludes these considerations the nuclear opponents cannot move from the initial position.
several of the parties to the dispute are seeking to establish legal precedents. In. the early stages of the environmental movement litigation was needed to establish essential principles of law as they relate to environmental issues. As the body of environmental law accumulates opportunities for precedent-setting decisions come less often. Environmental law firms will continue to concentrate their attention on issues that build new legal interoretations of legal precedents: however, these lawyers are inundated with persuasive requests for representation in cases that do not break new legal ground. It is in these conflicts that use of mediation may be appropriate. Restricting mediation attempts to those conflicts where the establishment of baseline decisions is not an objective leaves a broad range of conflicts where mediation can be considered. In assessing the applicabiliiy of the mediation process to a particular dispute, the mediator must consider the relative parity of power between the disputants. In the absence of some balance of power the more powerful p;nrty can inflict its will on the opposition with relative impunity. A minimum necessary power balance is reached when the parties perceive that their opponents are able to inflict suffirCnt cnd+-in ...
Some tentative conclusions The use of mediation in environmental disputes is still extremely experimental. There is much to be learned. For instance, little is known about the circumstances under which it seems to offer hope of settlement and when it cannot be used, except in the most general of terms. Its success may depend in large measure on its selective use. applied only in extraordinary circumstances and not incorporated as a standard procedure in the negotiating process. If its use were regularized it might be viewed as one more hoop to jump through in the already tedious planning process. Based on its limited use to date, mediation does appear to be a promising alternative to the adversary relationship, particularly at a time when environmentalists are being accused of slowing progress and being negatively oriented, always opposing . . . never proposing. When advocates of the environment were few, their resources more limited And their political power less robust, they chose the successful tactic of using administrative and legal procedures to delay and, hopefully, eventually sidetrack projects they believed to be unwise. Proposals for nuclear power plants and petroleum refineries became entangled in a web of administrative hearings and regulations, delaying projects and frustrating those groups who were unsympathetic to the environmentalists'
[email protected] a while these tactics were successful. Then came the defeat on the Alaskan pipeline, the energy crunch, and with it an abandonment of hard-fought victories for low-sulfur fuel and tough automobile emission standards. New strategies will have to be designed if anything approaching environmental responsibility is to survive. Mediation, if thoughtfully employed and sensitively applied, may be a technique that allows environmentalists to forcefully present their position and at the same time provides a mechanism for society to balance its priorities. Jan,e E. McCarthy is co-direcfor o f the Office of Environmental Mediation at the Unit{ersity of Washington and is a princiPal in MIS Associates, a consulting firm in N'ew York City.
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