Co-Director
Conflict Resolution Consortium
Campus Box 327
University of Colorado
Boulder, Colorado 80309
(303) 492-1635
OCTOBER 22, 1988
Working Paper #89-6.
The statements and ideas presented in this paper are those of the author and do not necessarily represent the views of the Conflict Resolution Consortium, the University of Colorado, or the William and Flora Hewlett Foundation.
CONFLICT RESOLUTION CONSORTIUM
Funded by the William and Flora Hewlett Foundation and the University of Colorado, the Conflict Resolution Consortium is a coordinated program of research, education and application on three of the University's four campuses. The program unites researchers, educators, and practitioners from many fields for the purposes of theory-building, testing, and application in the field of conflict resolution. Current focus areas include international conflict; environmental and natural resource conflict; urban, rural, and inter-jurisdictional conflicts; and the evaluation of alternative dispute resolution mechanisms.
WORKING PAPERS
The Conflict Resolution Consortium working paper series includes a variety of papers written by our members as a part of their research. Usually these papers are in preliminary draft stage and are being prepared for eventual publication in professional journals or books. Other papers record discussions from Conflict Resolution Consortium seminars and plenary presentations.
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The Preliminary Version of this Paper Was Presented to the SOCIETY FOR PROFESSIONALS DISPUTE RESOLUTION
1988 Annual Meeting
Los Angeles, California
The days of the energy panic are gone and we are once again complacent with a global petroleum glut. The days when we were rich enough to "throw money" at the environmental problems are gone and replaced with an age of hard choices dominated by skyrocketing debt. Gone too are the days when environmental protection and quality of life came before more jobs and economic growth. The recession of 1983 and the stock market crash of 1987 have been sobering for us all.
All of this does not mean that environmental conflict is dead, nor does it mean that opportunities for beneficial intervention by trained dispute resolution professionals is gone, though the demand for their services has been reduced.
Still, the largest reason for both hope and concern about the future of the field of environmental dispute resolution stems from the fact that the field has not yet to made a deeppenetration into the theoretical market for its services. It is a source for concern because it may mean that mediation techniques are not yet effective or attractive enough for widespread adoption. It may also mean that the filed is failing to market its services effectively. Optimism stems from the fact mediation can flourish, even in difficult economic times, if it can overcome these problems and enlarge its "market share".
If the recovery continues to the point where imports are substantially reduced and the economy reaches full capacity then we may see a new round of environmentally sensitive projects proposed. Renewed prosperity might also give people the courage and resources needed to fight the siting of projects in their favorite back yards. If this happens we could easily see a replay of the great environmental debates of the late 1970's with abundant opportunities for environmental mediators.
It is of course also possible that the doomsayers will be proven right and the twin budget and trade deficits will eventually catch up with us. In this case we can expect a sustained period of economic weakness which will more closely resemble the period following the 1983 recession and the collapse of world oil prices than the years of the energy crisis and the Energy Mobilization Board. In this case there may be a substantial shift in the role that environmental mediators might wish to play.
For example, in times of economic difficulty there is a tendency to revert to what Lester Thurow calls "the zero-sum society." ace of a shrinking economy the only way that people can get ahead is by taking something from someone else. This can lead to a society at war with itself and unable to cooperate in the initiatives necessary to restore prosperity.
In this case there will be an overwhelming need for conflict resolution specialists with expertise in public policy problems who can help us shift from a zero-sum to a positive-sum psychology so that our society can work cooperatively in spite of economic stress. Here, environmental mediators might be expected to make contributions toward the development of joint public-private sector initiatives. Fortunately, the same repertoire of conflict resolution skills can be adapted to either the rosy or gloomy scenario.
Regardless of whether the economy prospers or stagnates there are a broad range of difficult environmental issues which simply cannot be avoided. Society will, either by default or design, make the hard choices about how much and what kinds of pollution are acceptable. These decisions will have to be made for an enormous array of chemicals, industries, and political jurisdictions. We must also decide what land is worth preserving, what land is worth restoring, and what land can be sacrificed. In most cases, no action will result in the sacrifice decision being made by default.
Other unavoidable issues include endangered species, integral vistas in our national parks and wilderness areas, historic preservation, global climate change, acid rain, etc. Here there will always be a need for a more enlightened approach to environmental decision making and dispute resolution. The challenge will be to build upon past successes while continuing to develop more widely applicable and marketable techniques.
Environmental mediation may also confront the end of its honeymoon with potential clients. In the beginning many may have felt that since "truth was on their side" and since mediation was non-binding, they had nothing to lose. Many then discovered that not everyone believed in the same truth that they did, that the mediation process was quite capable of pressuring them into taking unwanted positions, and that it was not always as quick or inexpensive as they had hoped it to be. As a result disputants can be expected to view environmental mediation with more realism and more skepticism in the future.
In addition to changing economic and political conditions and changing perceptions of their professions, environmental mediators of the future will also have to deal with the same old problems which have always made their task so difficult. These problems not only make it difficult to reach a mutually acceptable agreement, they also make it difficult to meet the other criteria of a good decision making--equity and technical soundness. These problems include, but are not limited to, the following:
The widespread belief that the only way to get ahead is by taking something from someone else.
Inaccurate perceptions of the positions and actions of others which can easily escalate into a much more serious conflicts.
Open expression of personal animosities which escalate to the point where personal rather than substantive issues dominate.
The existence of organizational constraints which deny one or more parties flexibility to avoid confrontation and negotiate a mutually beneficial settlement.
Interest groups are often at different stages in the opinion formation process with some groups lagging behind others. Just when a settlement seems possible, these lags tend to cause one or more parties to change their position or for new stakeholders to demand a place at the "table."
Technical studies of many environmental issues (and especially those involving risk and uncertainty) are often so complicated that there is a danger that key stakeholders and decision makers will misunderstand important facts and, as a result, make unwise decisions.
If technical studies are to play their necessary role in the dispute resolution process, then they must be viewed as credible by all of the stakeholders.
Here there is agreement that the project is needed, but in somebody else's backyard.
It was Groucho Marx who asked "what has posterity ever done for me?" The irony is that posterity has never done anything for the current generation. Still, any society which fails to safeguard the interests of posterity will not survive. It is all too easy and tempting to grease the wheels of settlement by taking from future generations--the one group which can't have a seat at the table.
In spite of our best democratic principles, there is always the threat that money or power will give some stakeholders an unfair advantage.
Virtually all environmental disputes involve a small number of stakeholders with a large vested interests and a large number of stakeholders with a small, diffuse interests. All too often the former group becomes the squeaky wheels which dominate the process to the detriment of overall societal interests.
Proponents of the status quo do not have to win the argument. They need only to delay approval long enough for the window of opportunity to pass.
The reciprocal dynamics of escalation can transform minor conflicts into major, destructive disputes. These are all problems for which dispute resolution professionals have at least partial answers. Nevertheless, there is a continuing demand for more effective and less expensive techniques. The future of environmental mediation rests upon its ability to develop and market techniques for dealing with these and related problems. At least three opportunities for marketing these services are available.
There are two different models which professionals in dispute resolution might follow to intervene in an environmental dispute.
Comprehensive mediation programs which mobilize and combine a large number of dispute handling techniques in an effort to control as many of the above problems as possible.
In cases where it is impossible to convince the stakeholders to agree to a comprehensive process it may still be possible to make incremental improvements in the process by selling participants any of a variety of support services designed of overcome one or more of the above problems. These support services can be divided into the "do-it-yourself" techniques or services provided by outside consulting professionals.
Do-it-yourself techniques could build upon the broad range of excellent training programs which are currently available. These techniques are particularly appropriate for traditional decision makers whose job responsibilities routinely involve environmental dispute resolution.
These training programs could be supplemented with detailed instructions on how to perform more highly specialized procedures. Do-it-yourself kits might be prepared to help clients do such things as diagnosing their own conflicts--identifying parties, positions, interests, avoidable and substantive sub-conflicts, and so on. A kit might also include information to help participants write, administer, and analyze the results of their own public opinion poll or questionnaire.
There are also a variety of more sophisticated support services which would require the work of consulting environmental mediators or dispute handling professionals with highly specialized training in fields such as mediation, computer graphics, statistics, survey research, risk assessment, etc.
The advantage of these incremental techniques is that they do not require decision makers to take the politically difficult step of transferring either formal or informal power to a third party. (While mediation theory generally maintains that the mediator is only a facilitator and does not have any decision-making power, the role is often perceived and, in fact, can easily used as a power base to influence decisions.)
Improvements in environmental dispute resolution processes can be made on a policy or case specific basis. For example policy improvements might restructure a decision making process in a way which reduces or eliminates unproductive points of conflict. These improvements would then apply to all issues decided by that decision making system. Other improvements are case specific in nature.
The primary purpose of this article is to explore ways in which dispute resolution services might be developed and marketed. Some ideas involve relatively minor modifications of existing practices. Others involve the possibility of bold new initiatives.
Since more effort has been directed to the development of comprehensive environmental mediation techniques, this paper emphasizes the possibility of making incremental improvements in the process.
Many of these ideas where taken from Rocky Mountain area projects and the work of the members of the University of Colorado Conflict Resolution Consortium. Unfortunately, I have not had a chance to do a search the many good ideas that are undoubtedly being developed around the country.
The Achilles heal which threatens many well constructed, comprehensive environmental mediation efforts is the tendency of the system to revert to old fashioned power politics. Even if the negotiating parties can be persuaded to abandon power politics in favor of conciliation and compromise they still face the difficult task of persuading their constituents that such a move is indeed in their best interest.
In spite of promising beginnings comprehensive mediation efforts often falter when one or more of the parties tries to strengthen their position by reverting to adversarial methods. One solution is to give the mediation process enough clout to prevent this from happening by institutionalizing critical elements of the overall process.
One possibility would be to follow the example of the mandatory arbitration statutes enacted by many states. Here you have to go through voluntary mediation or arbitration before you can take your case to court. The system could be structured in a way which provides strong disincentives to litigation. For example, if the courts do not award a substantially better settlement than the arbitrator, plaintiffs could be required to pay court costs.
Comprehensive mediation efforts can also be undertaken by traditional decision makers seeking to reduce the level of acrimony which accompanies their actions. This is especially useful for relatively impartial decision makers whose job it is to balance competing interests.
Mediators such as governors and senators with enough clout to compel people to take the process seriously can also make a big difference.
All of these options point out the importance of the clout factor. All of which suggests that mediators need to have or to cultivate a relationship with appropriate powers. Unfortunately this raises a second problem--the impartiality factor.
It is also crucial that these political authorities be in a relatively unbiased decision making position. If they are clear partisans, their role in a mediation effort will be much more difficult--though, perhaps not impossible.
The impartiality factor represents an important challenge for the field. If environmental mediators can develop a credible process which would allow them to receive funds from one of the parties, yet still maintain their neutral role, then the market for their services would be dramatically enlarged. The key would seem to revolve around a contract with the funding party which would guarantee the independence of the mediating organization. An independent oversight board could also give the mediator additional protection. Here the long term success of the mediator will depend upon his reputation for producing mutually acceptable settlements.
Still, the clout problem remains one of the most intractable and difficult issues. Given this, dispute handling techniques which are not perceived as challenges to fundamental authority structures may often be more marketable than traditional environmental mediation. The following examples are designed to illustrate the broad spectrum of available options. They are intended as illustrations, not as a comprehensive guide to broad spectrum of available options.
Many of these techniques are under active development at the University of Colorado Conflict Resolution Consortium. Still, we would welcome partnerships with other dispute resolution professionals who would like to test, refine, and market these techniques.
The key to beating the zero-sum problem is to help people identify unrecognized areas of common ground. This can be done through traditional consensus building techniques and perhaps through newer, high-tech techniques. One technique which is under development by Susan Clarke and others at the University of Colorado employs intensive interviews with stakeholders and cluster analysis to identify areas in which agreement and disagreement are most intense. At the pre-conflict stage this technique can aid in the development of initiatives which are more likely to be successful.
Another technique being developed by Rob Hammetal. uses a computer to help people better understand how they and others make judgments--about technical matters, valuative assessments, or both. The technique can be used to clarify sources of agreement and disagreement and to help disputants recognize possible new approaches for reaching agreements.
Misperception surveys could determine the degree to which opposition to a proposal is based on misperceptions or an inaccurate understanding of an initiative. When these misperceptions are corrected, it is much easier to address and resolve the substantive issues.
One approach combines surveys and opinion polling techniques with a process for accelerating the respondent's opinion formation process as a basis for forecasting future opinion. This contrasts with the snapshot of current opinions which traditional opinion polls provide.
Easy-to-read and understand summaries of technical facts and concepts can be prepared for disputants and/or the public to help non-scientific decision makers and other conflict participants understand the technical issues involved in a dispute. Computerized simulations can also be used to help the parties better understand the role that technical issues will actually play in the dispute resolution process.
A variety of techniques are available for assuring the accuracy and credibility of technical studies and removing technical disputes as a source of conflict. Possible approaches include technical mediation which is supplied by an independent team of technical experts and mediation specialists, or technical oversight supplied by an impartial, third party, "blue ribbon technical oversight" committee.
One technique for resolving NIMBY conflicts involves representatives of all potential sites in a process which would first obtain a consensus on the criteria for site selection and then monitor the site selection process to insure that the criteria are adhered to.
While there are a number of effective incremental techniques which are either available or under development there are also a number of tough problems for which we do not yet have any good answers. These are important challenges which the field needs to consider and surmount. Some examples:
The posterity problem is particularly difficult. Its solution rests on the willingness of the stakeholders to sacrifice immediate gains for the benefit of others. In some cases posterity can be represented by future oriented interest groups with long range agendas. In other cases dispute handlers may be placed in the difficult position of representing the conscience of the process with the risk that their actions may reduce the chances of a settlement.
Another difficult issue concerns the power elite problem. One of the biggest concerns about alternate dispute resolution techniques is that they may not adequately protect the less powerful. The challenge becomes how do you structure a non-adversarial, mutually acceptable process which adequately guarantees the rights of the less powerful.
Mediation techniques can easily become a tool of groups wishing to defeat a project with perpetual delays. Another challenge is to build into the process a series of firm deadlines which will fairly but forcibly assure a prompt and complete decision on the issue.
The utopian model of a perfect decision making process is a cherished dream. Unfortunately, it is seldom, if ever attainable. While trying to make comprehensive mediation better and better--striving for the perfect process--is a laudable goal, I believe that there is an important role for a more modest and politically realistic approach of making incremental improvements in existing decision processes. The incremental approach seems to me to be more likely to be effective in more cases and also is likely to be more easily sold to a larger though still skeptical client base.
Copyright (C) October 1988 by GUY MARSHALL BURGESS, PH.D.
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