Alternative Dispute Resolution: What is it?
Alternative dispute resolution (ADR) is an emerging tool for finding good solutions to complex problems especially in the area of environmental conflict. Dispute resolution has been employed in a variety of fields and has long been considered an alternative to litigation. In some cases, courts are requiring mediation in custody and property settlements in disputed divorces. It is also becoming a method of choice for local law enforcement agencies in neighborhood disputes.
There are several types of dispute resolution including informal interest based mediation, rights-based mediation and arbitration. Most mediation is conducted on a voluntary basis. It is considered by many to be a cheaper, faster and a less risky alternative to litigation and is finding broader acceptance as community based Dispute Resolution Centers become established around the country. Unfortunately, even in cases where it is required by the courts, simply showing up for the scheduled session satisfies the obligation whether or not any actual negotiation takes place.
The less formal, interest based mediation requires two (or more) parties to agree to come together with an impartial mediator to seek solutions to their dispute. While the parties may initially see little opportunity to resolve their dispute, they often view it as a better approach then going to court. In these cases, the interests and issues of the parties are articulated and a number of possible alternatives are explored. Products of these negotiations may be verbal or written agreements. They may be informal between the parties or take the form of a formal, documented agreement enforceable by a court of law. The form of the agreement is negotiable by the parties.
Rights based mediation is an examination of the facts of a case by an expert in the relevant field and the evaluation of the rights of the parties under some pre-existing set of rules (such as generally accepted accounting principles). (Common Ground, 1999) In these cases the mediator renders a decision which may be accepted by the parties. It is often a preliminary step before the case is heard by a court. This form of mediation is usually mandated as a part of the court process.
Arbitration is a more formalized approach usually written into a contract or previous agreement as the method of choice for resolving future disputes. This process resembles rights based mediation but references the terms of the contract instead of an external set of rules. The findings or products of arbitration are often binding, but in some cases may be voluntary and considered a preliminary step to litigation. They also become subject to litigation if one of the parties to a dispute fails to abide by the agreement. Parties often agree to arbitration before any dispute arises.
Alternative Dispute Resolution:
Alternative Dispute Resolution (ADR) is a very effective tool to resolve complex problems with multiple constituencies that have significant interests in the outcome. Until recently these types of disputes were almost always resolved with litigation. A common and important feature of ADR is the convening of a stakeholder group. Stakeholder processes are sometimes formally mandated as a routine part of a decision making, planning or problem solving effort. Or they may be a part of a process set up by a legislative body to deal with a particular set of problems. An example of this is the Transportation Permit Efficiency and Accountability Committee (TPEAC) established by the legislature to deal with environmental problems surrounding the construction of major transportation projects in Washington State. (TPEAC, 2006) If established by law, the stakeholders are defined in the enabling document. Absent this mandate, an intervener (often at the request of one or more of the parties) will help define who the interested stakeholders are. This occurs in a consultative and iterative manner. It is usually necessary for multiple transactions to occur before interveners finally narrow the field of potentially affected stakeholders to arrive at the necessary parties to the negotiation.
Ingredients for success:
Conducting an ADR process to resolve environmental problems is almost always a very complex matter. A number of important elements are necessary if such a process is to achieve success. Four critical ingredients for success were identified by TPEAC: stakeholder engagement; sustained leadership; providing a clear mandate; and consistent funding.
Stakeholder engagement was defined as full participation by state and federal natural resource agencies, the regulated community; local and tribal governments; the environmental community and business interests. Participants worked together while being respectful of each others perspectives, mandates and constraints to find the best workable solutions (TPEAC, 2006).
Sustained leadership in the TPEAC process was provided by legislators on the committee and helped to set the tone and direct the overall efforts of the process. Internal leadership emerged at the subcommittee levels as well. (TPEAC, 2006) In less formal processes sustained leadership may need to be provided by designated mediators that are qualified to design and conduct a process that is fair, informed, and open to all participants.
Enacting legislation provided a clear mandate that established the expectation and priorities for the participants. (TPEAC, 2006) In the absence of a clear mandate to participate by some outside authority, all parties must be convinced that the current process is preferable to the ‘best available alternative to a negotiated agreement’ (BATNA).
Consistent funding ensured that participants could devote the time and effort necessary to the process and to form strong working relationships with other stakeholders without the distraction of other routine commitments. (TPEAC, 2006) Often the time commitments by staff are the largest single cost factor in ADR and similar processes. In some cases, additional resources must be allocated for research and expertise to be incorporated into the process to form a valid basis for viable and informed decisions.
Principles of Dispute Resolution
Nearly all types of dispute resolution rely on common principles to protect the integrity of the process. One that has already been mentioned is that participation is voluntary except in more formal processes established by legislative mandate. Even in mandated processes, good faith efforts depend heavily on the voluntary participation of all parties.
Confidentiality maintained by the mediator is another critical element of all dispute resolution. This is true for less formal voluntary mediation both internally and externally to the process. In those cases, no information about the process can be disclosed without universal agreement by all parties. Information discussed in caucuses with individual members may not be shared without specific permission from the disclosing party.
ADR processes sponsored by public agencies are almost always conducted in public. Some are even broadcast on public television as in the case of TPEAC. Some sidebar discussions between stakeholders and between stakeholders and the mediator may take place outside the public eye. Often these discussions identify critical issues that must be incorporated into the public process. It may be advantageous for the mediator to bring them up for consideration by the group. Issues brought up in private should not become a part of the formal process unless all stakeholders agree. In general, it is important that no hidden agendas be allowed to persist as this may threaten the overall success of the process.
Stakeholders must represent all of the critical interests in the issue under dispute. This often becomes one of the first items for resolution among the parties. This matter will be discussed more extensively later in this paper. If one or more of the critical interest groups is absent, it may be advisable to delay or forgo the process altogether.
The role of the mediator is usually one of facilitating the process, enforcing the rules of acceptable conduct and recording the progress of the negotiation. It may be said that the process belongs to the mediator. The negotiations belong to the stakeholders. One of the most useful functions that a mediator can perform is to present the group with alternatives for discussion throughout the duration. It is also the responsibility of the mediator to identify when progress ceases to be made. In that event, it is appropriate for him or her to call for individual caucuses with the parties involved to determine if there are underlying issues that have not emerged in the open process. From these caucuses, creative alternatives can often be brought forward that encourage new perspectives and allow the process to move forward.
Dispute resolution processes
Dispute resolution processes almost always follow a common format with only minor deviations. The process begins with an opening statement by the mediator describing the steps to be followed, the rules of courteous and respectful consideration of others and the limits of the role of the mediator. This is then followed by opening statements by each stakeholder about the interests, issues and concerns they need to have addressed to resolve the dispute. Once opening statements are completed there is time allowed for follow up statements to add any information that might have been missed the first time around. The mediator should stress that this is not a time for rebuttal or argument.
During these opening statements the mediator should listen carefully and record the basic themes of the participants. After each statement it is appropriate for the mediator to validate the presenter by feeding back what he or she has heard. This record serves as the basis for the next step which is to draft a list of issues to be resolved in the mediation. This can be done on a flip chart or white board and each issue must have agreement by all that it is to be included. (Some items may be set aside for reconsideration at a later time if all parties are not in agreement.) Once all the items are listed, they can be prioritized by the group to determine where to start.
If the issues are complex or require new data, this is the time when expert testimony or research can be introduced (to insure that the group is working from a common set of facts and information.) One might even delay further discussion until agreed upon information can be secured and shared with the whole group. This is especially important if different stakeholders have divergent backgrounds and education in the matters under discussion or if the scientific research is sufficiently complex to initially evade a lay-audience, as in the case with many environmental issues. This information infusion step may reoccur throughout the process as new issues and information are identified.
Negotiations may then begin. As agreements are reached on particular matters, the group proceeds to the next priority. If a particular issue seems to frustrate the process excessively, it may be set aside and revisited later. It is important for the mediator to use good judgment about when an issue should be set aside. As agreements are reached, the mediator needs to record these agreements and use it as an opportunity to encourage the group by highlighting their successes.
Once all of the items on the agenda have been resolved the mediator has the responsibility to record the final agreement and insure that all parties concur with it. Some items may have been set aside permanently and will not be included in the final agreement.
How is ADR applied to environmental problems?
Environmental problems are among the most complex and challenging areas of conflict in our modern world. They can include important elements such as science, sociology, economics, history and culture, property rights and legal or regulatory constraints. They can involve private individuals, the general public, multiple regulatory jurisdictions and special interests. They may include elements that have some unknown consequences and require an assessment of risks based on incomplete information. They may occur in areas where previous practices have already had detrimental effects. Any new decisions now may make things worse. It is important to remember that new decisions may also mitigate previous errors and improve the overall situation. When environmental disputes (or any disputes for that matter) rise to the level of public concern, they may be emotionally charged and push stakeholders toward rigid postures making it more difficult to negotiate.
However, it is important to recognize that relying solely on regulatory regimes and legal actions to protect the environment have often proven to be only marginally effective because these approaches often forgo the opportunity for holistic problem solving. ADR takes a broader perspective on environmental systems and functions which are not constrained to a single parcel of land or a particular project.
As an example, the problem of parcel based approaches to environmental problems became a major element of consideration in the TPEAC process. Prior to TPEAC, regulatory agencies expressed a strong preference for “on-site” (same parcel) mitigation of wetland impacts for transportation projects. Usually, a formula was employed to establish a ratio of newly created compensatory wetland for natural wetlands destroyed or compromised. Typical ratios were 5 to 1 or 8 to 1. The assumption was these created wetlands were not as effective and therefore required larger mitigated acreages to approximate the environmental functions of the natural ones. In truth, the created wetlands often never achieved many of these functions. In TPEAC, a new strategy of watershed mitigation was developed. This approach required that the wetland systems and functions of the full watershed be inventoried and opportunities for mitigation be prioritized based on their overall value to the watershed. This allowed transportation planners and regulatory agencies to select mitigation strategies that maximized the desired functions impacted by the project. It often resulted in restoring previously compromised natural wetlands that achieved full environmental function quickly and provided mitigation for much broader segments of the overall watershed.
Many of these issues can be dealt with more effectively when all appropriate stakeholders participate jointly in the process. Many problems of ignorance or omission can be thereby avoided. In addition, “one size fits all” regulatory approaches may fail to take into consideration important local needs and aspirations that can be included in an ADR process. It is important to formulate a step by step process that relies on the same procedures and strategies that are common to other mediation processes and for the mediator to be prepared to serve in facilitation and coordination roles to allow the process to move forward effectively. Complexity and human nature do not make these processes particularly efficient, but a deliberate incremental process can result in manageable goals that are achievable and produce better environmental outcomes and comprehensive durable agreements.
Examples of ADR successes:
ADR is being increasingly applied to resolve environmental disputes. What follows are examples of some of these efforts. These illustrate the diversity of processes, differences in the structure and variety of products that can result from applying ADR to environmental disputes in the fields of transportation, hydroelectric dams and toxic waste sites.
Washington State was facing a number of challenges associated with the permitting, design and construction of major transportation projects. These included conflicting rules and requirements from different regulatory agencies, delays in the permit processes at all levels, questionable environmental outcomes and frustration by tribes that their cultural artifacts and environmental concerns were not being considered. As a result, the legislature established the TPEAC process to resolve a number of the disputes regarding the permitting of transportation projects in Washington. The process was established by legislation which also identified the stakeholders. The goals of the process were to streamline permits and achieve better environmental outcomes on transportation projects. Consultants were hired to help develop the structure and processes. The committee initiated six technical subcommittees to work on different aspects of the problem. These subcommittees included broad stakeholder representation from the committee and recruited additional experts from various agencies and organizations to participate.
The subcommittees were co-chaired by at least two members of the committee, each with different perspectives on the problems being addressed. Outside consultants acted as facilitators to get the process up and running and to model constructive subcommittee practices and procedures. Eventually, the co-chairs took over this responsibility. Subcommittees were modified over time as new challenges were identified. The subcommittees drafted resolutions to be presented to the full committee for formal adoption. All resolutions adopted were unanimous. Numerous products were adopted by the committee and by participating agencies as standard practices. These products can be viewed on the TPEAC website (TPEAC, 2006).
All participants agreed that one of the most valuable outcomes of the process was the establishment of trust relationships among the participants. After four and a half years a decision was made not to seek additional funding in the next budget cycle. Instead the members of TPEAC agreed that individual agencies should assume the new products and processes as part of their standard operating procedures. The Washington State Office of Regulatory Assistance has adopted these same products and processes as a model for all of state government.
In California, the Dispute Resolution Service of the Federal Energy Regulatory Commission (FERC) and the FERC Office of Litigation initiated a mediated process to re-license several hydroelectric facilities. At issue was the balancing of ecological populations, hydro-power production, and municipal and agricultural uses for the water resources. Other issues included water rights for water districts, 100 year old water rights applicants, a recent energy crisis, lack of reliable historical data and a drought. (FERC website, unknown)
Past re-licensing processes had resulted in numerous administrative and legal challenges to the process. Concerns were addressed and a settlement was reached using ADR. This allowed the licensee to file their proposed terms and conditions of the project without protest. (FERC website, unknown)
The GE-Pittsfield case in Western Massachusetts involved PCB contamination that created high levels of public concern. ADR was used to address four major areas. They were: GE’s liability and responsibility for clean-up; input from the community on impacts of the clean-up process; the establishment of a panel of neutral experts to make recommendations for future remediation; and finally, agreement to use ADR to resolve dispute that may come up during the implementation of the remediation plan. (EPA website, unknown)
Stakeholders included neighbors, business interests, environmental groups and regulatory agencies. It is important to note that the settlement agreement included strategies for adaptive management as new information and impacts become known. This process entailed extensive public outreach and community meetings to solicit and address all of the interests in the area. (EPA website, unknown)
Some concerns about ADR:
Using ADR to resolve complex environmental disputes has a number of difficulties that must be addressed. The first question often asked is who is included in the process and who is excluded. This problem becomes particularly relevant when dispute resolution is considered as an alternative to traditional environmental decision making processes that include significant public participation. As a general rule of thumb, stakeholders should be defined as broadly as possible. This is critical if the agreements and solutions devised are going to receive broad political and public acceptance. A key responsibility of the convening entity is to carefully define the parties that will be necessary to achieve a durable and workable agreement. Too narrow a stakeholder group may simply lead to future disputes that will require all parties to return to the negotiating table or face litigation.
Processes that are convened by public entities are most often open to the public and may attract interest groups that were previously unaware of the effort. It is possible to expand the number of stakeholders by mutual agreement if it becomes apparent that some set of interests is not being represented in the current process. Meetings may be structured to include opportunities for public comment for those who do not wish to be regular participants but want their issues considered.
When ADR was proposed as an alternative to the British land use planning appeals system major concerns were voiced on the issue of inclusion. In the regular appeals process, only the two disputants had formal standing to be involved in the appeal. However, as a matter of custom, outside interested parties were usually given an opportunity to voice their concerns at a public meeting after the case was completed and before the decision was rendered. In the proposed ADR process, the plan was to make it voluntary, informal, independent and without prejudice, meaning parties could still pursue the case through formal appeals channels. However, the proposed ADR approach eliminated any participation by impacted third parties (Harrison, 1998). Critics predicted that such a system would add an extra burden to the existing process because it would result in serial litigation instead of comprehensive multi-party dispute resolutions.
Cost is another important consideration when proposing ADR. Mediation is often perceived as a much less expensive alternative to litigation. In simple cases, where the numbers of disputants and the issues to be addressed are limited, this may be true. However, environmental disputes often address complex ecological and social systems where significant gaps in information exist. They may entail research to address identifiable concerns. Even with specific research included in the process, many questions go unanswered. As a result, stakeholders spend a great deal of time reviewing available information, discussing risk and the possible outcomes of taking a proposed action. Many times decisions rely on the best judgment of scientists and stakeholders to come to a final agreement.
This kind of process requires the development of trust in the competence and motivations of the other stakeholders and experts. Often this is one of the most valuable outcomes of ADR. It can lay important ground work for future problem solving among the parties. For that reason it is important for all participants to plan to invest significant amounts of time (and therefore money) in the process. Participant must dedicate staff to work on these problems unencumbered by other routine duties. This is usually the most expensive element of comprehensive ADR processes. ADR it not an efficient process in the short term, but the long term value for solving complex environmental problems far out-weighs this concern. Ultimately it is both more effective and efficient.
One classic example of this has been the Timber Fish and Wildlife (TFW) process initiated in 1987 between Washington Tribes, state and federal regulatory agencies, environmentalists and the timber industry in Washington State. While no formal written and signed agreements have been forthcoming, this process serves as the main avenue of collaboration for management of the timber resources of Washington. The major purpose of TFW is to provide consensus recommendation on permits to the Department of Natural Resources and on rule changes to the Forest Practices Board (Lynett, 2000). This process has existed for nearly 25 years and has required significant investments of time and money in research, stakeholder processes and participation in public policy and regulatory venues. All parties continue to report satisfaction with the process and the outcomes it has produced (Lynett, 2000).
Another problem that is fundamental to successful ADR is the requirement that all affected parties to an agreement be represented in the process. The issue of “getting reluctant stakeholders to the table” becomes pivotal (Thomas-Larmer, 2004). It is important that ADR be as inclusive as possible to insure that the agreements are viewed as legitimate by all parties and the public (Thomas-Larmer, 2004). One important element is to discuss the best available alternative to a negotiated agreement (BATNA) with all parties. Unless all parties agree that ADR is the better alternative some are going to be hesitant to participate in good faith or even come to the table. If one or more critical parties resist participation it may be best to postpone or terminate the process. Lack of critical stakeholder involvement should be a matter of early discussion as it may determine the effectiveness and durability of any agreements.
One strategy is to meet with the absent party to point out the benefits of the proposed process and to review BATNA with them. Sometimes the identified party may be unfamiliar with the ADR process and fear that they will somehow be disadvantaged by participating. Simply providing a clear explanation of how the process will be conducted can sometimes overcome their reluctance. Another strategy might be to identify another stakeholder that can adequately represent the interests of the reluctant party. This could be similar organization, or it may mean going to a different level in the hierarchy of the interest group such as a statewide organization instead of a local group. In the final analysis it is the decision of the ‘willing parties’ whether sufficient progress can be made with the available participants.
Managing complex scientific information:
People rely on science to manage many aspect of their everyday life; yet science is often not the over-riding consideration. Predicting levels of risk and the severity of consequences often dictate how we value information. Science is generally effective at predictions based on replicated experimentation, case studies of similar circumstances and by modeling outcomes. All of these methods have their flaws based on theoretical design, inclusion of variables, scope of work and many other factors. In addition the particular topics under discussion may have been subjected to very little scientific analysis.
It is important to keep in mind that scientific issues may not be the core motivating factor of one or more of the disputants. To some, issues of social justice, cultural preservation, economic impacts or a series of other concerns may be a higher priority. It is important to validate all of these concerns and not let science get ahead of the other issues in the process. It may be helpful to ask each party what kind of scientific information could change their position on the matter in dispute.
It is important for the mediator to try to gain an understanding of the kinds of scientific and technical information that will be relevant to the matter under dispute. Often the disputants themselves are a good source to help develop a list of the topics and sources of information that will be relevant. This list can then be reviewed by qualified third parties for accuracy, relevance and completeness. Parties may have already identified sources that they believe support their particular position. Scientists, who appear to disagree, may explain differences in their findings as matters of scope, scale and method. The mediator should make reasonable efforts to resolve these differences through discussions directly with the respective scientist and in consultation with their scientific peers. It would be helpful to have the scientists discuss the limits that are implicit in their research designs. It is important to remember that science is always growing and changing.
Stakeholders may have vastly different backgrounds in understanding scientific information. It is important that information be presented in a form that is useful to all participants. Extra effort may sometimes be required to increase understanding of scientific information both through the process itself and by individual stakeholders. Some stakeholders may need to obtain the services of outside experts to explain the information in terms that they can understand. The use of jointly constructed decision trees, flow charts, cognitive maps and other visual tools may help explain information that has been presented by experts (Adler, 2006).
When science has been used as a predictive tool, actual outcomes may vary. This is particularly true in the environmental arena where so many factors are unknown and complex systems interact in ways that are hard to predict. It is important to incorporate strategies for adaptive management to monitor the anticipated outcomes and modify or revisit the agreements when unanticipated results occur. A good example of adaptive management is the strategy to revisit provisions of the Washington State Timber Habitat Conservation Plan (HCP) when new species are declared endangered and habitat must be re-evaluated to insure that these changes are taken into account.
An individual mediator may have little knowledge of the subject under consideration. One strategy is to employ the services of an ‘expert’ as a co-mediator to manage scientific information while the original mediator retains the responsibility for process and relationships. Conversely, the mediator may have significant expertise in the matter in dispute. It is important that they use their expertise sparingly just to guide the process and do not appear to be arbitrating the outcome. In one case, the author, a senator, served as the convener and mediator of a rail dispute in his legislative district. Many looked to him to dictate the terms of a settlement based on his expertise as a legislator. In fact many criticized his refusal to do so. It was important to allow the full process to take its course. As a result, a new alternative was identified that no one had thought of before. It was adopted unanimously by all parties to the dispute. It is critical to maintain an impartial perspective. In rare cases a mediator may wish to speak as an expert. In that case he or she should ask permission to temporarily change roles, make the presentation and then declare the transition back to role of mediator (Adler, 2006).
Resolving environmental disputes through ADR is a growing trend. It is attractive because it allows problems to be dealt with at levels of complexity that are not always provided for in strict regulatory approaches. Regulation often falls short because holistic approaches to environmental systems and functions do not always fit regulatory schemes. (See the TPEAC watershed mitigation strategy on page 6.) Issues of public concern and preference can be addressed even if they are not covered by regulations. Input from all interested parties can be incorporated resulting in broader public acceptance of final products. Litigation as the best available alternative to negotiation may be deemed more risky by all of the parties to a dispute. Public policy is expanding to include commitments to ADR because these processes are seen as more acceptable to the general public and to elected officials. Stakeholder processes using ADR methods are being mandated in public law and policy at all levels of government in the U.S. ADR may not always be appropriate especially as disputes become more complex. Mandates from legislative bodies and the courts to resolve disputes through an ADR approach may continue to be necessary. But a number of processes have been productive without such a mandate. (See the TFW example on page 10.)
Dispute resolution is an option that is growing in popularity around the world. It is becoming a major force to achieve social justice and better economic outcomes in addition to a better environment. Commitments to this process can be seen from the proliferation of local Dispute Resolution Centers to Presidential Orders mandating ADR as a preferred option. Public policies that insure the protection of the public interest along with adequate resources to support ADR will continue to be a challenge to this emerging approach. Past successes are beginning to suggest possibilities for the application of ADR in venues and on issues previously relegated to other regulatory and legal institutions.
Adler, Peter S., Robert C. Barrett, Martha C. Bean, Juliana Brickhof, Connie P. Ozawa, Emily B, Rudin. 2006. Managing Scientific and Technical Information in Environmental Cases, Principles and Practices for Mediators and Facilitators. Mediate.com, The World’s Dispute Resolution Channel.
Blacklocke, Sean. Alternative Environmental Dispute Resolution in South Carolina: Emerging Opportunities to Build More Sustainable Communities. 2006. Mediate.com, The World’s Dispute Resolution Channel.
Burguete, Leopoldo, Humberto Celis and Luis Miguel Diaz. 2006. Management of environmental-Social Conflicts in Mexico. Mediate.com, The World’s Dispute Resolution Channel.
COMMON GROUND. Conflict Resolution News. May 1999. Website. http://www.munncrs.com/COMMON_GROUND/May1999.html
Environmental Protection Agency (EPA) website. Date unknown. http://www.epa.gov/region01/enforcement/adr/examples.html
Federal Energy Regulatory Commission (FERC) website. Date unknown. http://22.214.171.124/search?q=cache:eHgNYVE0LREJ:ferc.gov/legal/adr/options/hydro.pdf+ADR+examples+environment&hl=en&gl=us&ct=clnk&cd=11
Harrison, John. 1998 British Land-use Mediation Scheme Threatens to ‘Make Things Worse’. Consensus, a newspaper published by the Consensus Building Institute and the MIT-Harvard Public Dispute Program. January
Lynett, Kristin S., 2000. Cooperative Environmental Partnerships: Case Studies Involving Washington Tribes and Local Organizations. A thesis: Essay of Distinction. Submitted in partial fulfillment of the requirements for the degree, Masters of Environmental Studies, The Evergreen State College. January
Thomas-Larmer, Jennifer. 2006. Getting Reluctant Stakeholders to the Table: Experienced Mediators Share Insights. Mediate.com, The World’s Dispute Resolution Channel.
Transportation Permit Efficiency and Accountability Committee. 2006. State of Washington website. http://www.ecy.wa.gov/programs/sea/pac/tpeac/
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