INTERNATIONAL JOURNAL OF ORGANIZATION THEORY AND BEHAVIOR, 8 (2), 181-209 SUMMER 2005
ASSESSING AND IMPROVING CONFLICT RESOLUTION
IN MULTIPARTY ENVIRONMENTAL NEGOTIATIONS
Rosemary O’Leary, Tina Nabatchi, and Lisa Bingham*
ABSTRACT: After reviewing the logic and basics of Environmental Conflict Resolution (ECR), this article analyzes the praise for and criticisms of ECR. This article acknowledges the initial successes in the 1970s and 1980s that led to a major period of expansion for ECR, and continues today, but argues that it must do a better job of proving itself. That is, proponents must conduct more rigorous assessments of its utility under different conditions and invest in data collection that goes far beyond present efforts. The article concludes by reviewing the challenges and opportunities facing ECR in the twenty-first century. Singled out for attention is the need for scholars and practitioners to understand ECR interventions as targeted at aggregate rather than dyadic relationships, as complex systems embedded in even larger complex systems, as time-extended phenomena, and as ripe for evaluation for their impact on substantive environmental outcomes.
INTRODUCTION
In the United States the alternative or appropriate dispute resolution (ADR) movement has grown from a handful of mediators working in -------------------------
* Rosemary O’Leary, J.D., Ph.D., is Distinguished Professor of Public Administration and Co-Director of the Program for the Analysis and Resolution of Conflict, The Maxwell School, Syracuse University. Her research interest is in collaborative problem solving in environmental policy and public management. Tina Nabatchi is Ph.D. Candidate, School of Public and Environmental Affairs, Indiana University. Her research interests are in public management, public policy, and law, particularly in relation to conflict resolution. Lisa Bingham, J.D., is Keller-Runden Professor of Public Service and Director, Indiana Conflict Resolution Institute, School of Public and Environmental Affairs, Indiana University. Her research interests focus on connections between people and governance through processes of dispute resolution.
Copyright © 2005 by PrAcademics Press
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community mediation centers to institutionalized programs in courts, public agencies, non-profit organizations and corporations. Without question, interest has grown dramatically in consensus building, facilitation, mediation, and other forms of resolving conflict through assisted negotiation and voluntary settlement. Some even speculate that we are seeing a generational shift from command and control to less authoritarian forms of human organization and decision-making. While this is yet to be seen, there is no question that a framework supporting public agency ADR exists in federal statutes and a growing number of state statutes. In no field has the application of ADR been more pronounced than in the emergence of environmental conflict resolution (ECR). The terms ECR and environmental dispute resolution (EDR), overviewed later in this article, refer to the various ADR techniques that can be applied to environmental conflicts.
While the use of ADR in labor and community disputes has a long and well-established history, its application to environmental conflicts is relatively recent. The first documented instance of using mediation in an environmental conflict dates back to 1974 (Bingham, 1986), but before the late 1980s and early 1990s, ECR efforts were largely infrequent and impromptu interactions that occurred only when the disputing parties expressed interest in the approach (Amy, 1987). More recently, legislation such as the Administrative Dispute Resolution Acts of 1990 and 1996 and the Negotiated Rulemaking Acts of 1990 and 1996, as well as the growing awareness and acceptance of the potential benefits of ADR in resolving conflicts, have enabled different forms of ECR to become more regular and official parts of environmental policy making.
After reviewing the logic and basics of ECR, this article analyzes the praise for and criticisms of ECR. This article acknowledges the initial successes in the 1970s and 1980s that led to a major period of expansion for ECR (Bingham, 1986), and continues today, but argues that it must do a better job of proving itself. That is, proponents must conduct more rigorous assessments of its utility under different conditions and invest in data collection that goes far beyond present efforts. The article concludes by reviewing the challenges and opportunities facing ECR in the twenty-first century. Singled out for attention is the need for scholars and practitioners to understand ECR interventions as targeted at aggregate rather than dyadic relationships, as complex systems embedded in even larger complex systems, as time-extended phenomena,
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and as ripe for evaluation for their impact on substantive environmental outcomes.
ENVIRONMENTAL CONFLICT RESOLUTION: SCOPE, TECHNIQUES, AND PROCESSES
Environmental conflicts are fundamental and ongoing differences among parties concerning values and behavior as they relate to the environment (Stern & Hicks, 2000). More specifically, environmental conflicts are actual or potential disputes involving issues regarding the environment, natural resources, and/or public lands (USIECR). They usually involve multiple parties engaged in a decision-making process who disagree about one or more issues traceable to an action or policy that has potential environmental impacts (Blackburn and Bruce, 1995). Thus, before coming to terms with the contribution that ECR can make to environmental policy, it is necessary to appreciate three things: the scope or kinds of conflicts that ECR faces, the logic that proponents use to promote it as a tool for addressing these types of conflicts, and the varieties of consensus-based and quasi-adjudicatory approaches to which ECR applies.
Types of Applicable Conflicts
Environmental disputes can be classified as upstream, midstream, or downstream. Upstream environmental conflicts involve planning or policymaking. For example, they may include the creation and implementation of governmental policy at the national, regional, state, or local level, such as environmental, natural resource, health or safety policy. Midstream environmental conflicts involve administrative permitting, for example, the granting or continuation of environmental permits or exemptions. Downstream environmental conflicts are about compliance and enforcement. They can involve the ways that lands are used, the allocation or distribution of natural resources, and the siting of industrial or other large facilities. Environmental conflicts also can involve the prevention, cleanup, and consequences of water, air, or soil pollution.
Environmental conflicts can be categorized generally by the scope of the dispute. For example, policy-level disputes pertain more generally to classes of resources, locations, or situations, while site-specific disputes involve particular natural resources, locations, or situations (Bingham, 1986; O’Leary, Durant, Fiorino & Weiland, 1999). A policy-level dispute is normally an upstream dispute, whereas a site-specific dispute is usually a downstream dispute. Conflict emerges from differences in values and worldviews, conflicting interests, and the uncertainty that surrounds environmental courses of action (Mernitz, 1980). In addition, popular attitudes and political culture, technology, laws and political interests, economics, and religion (especially as related to Native American culture and the often disparate cultures of developing countries and the developed world) can help trigger environmental conflicts (Amy, 1987).
Given this breadth of contextual issues and potential philosophical differences, there is a host of possible government, public, and private interests with a stake in an environmental conflict. Elected and appointed government officials at the local, county, state, and/or federal levels in the United States usually are involved in environmental conflicts, since many of these conflicts arise from the formation or implementation of legislation and policies. Often these government officials represent different agencies (for example, the Department of the Interior and Environmental Protection Agency [EPA]), different departments or subdivisions within an agency (for example, the Bureau of Land Management and the Fish and Wildlife Service within the Department of the Interior), or even different branches of government (for example, officials in Congress and officials from an administrative agency such as the Department of Agriculture). Meanwhile, at the level of international disputes, conflict arises within governments (for example, disagreements between ministers holding economic versus environmental portfolios over issues such as greenhouse gas emissions, farm subsidies, and food regulation), between developed and developing nations over issues such as state sovereignty and biodiversity preservation, and between the East and West over risk management policies.
The numerous public interests represented in environmental conflicts include community residents, interest groups, and public-interest law firms. At the same time, of course, private interests also play a large role in many environmental conflicts. Industry, commercial, and other business people often become combatants in environmental conflicts such as those that involve siting facilities, pollution abatement issues, or granting various permits. Frequently these various government, public, and private interests also need and use the services of scientific, research, and technical consultants, adding to the number of stakeholders involved in the conflict.
In Praise of ECR
ECR processes clearly are derived from the philosophy of the ADR movement, which stands in contrast to traditional, adversarial methods of dispute resolution, and especially litigation. Unlike traditional litigation, in which a judge or jury makes a final determination or issues a judgment, ECR techniques use various forms of assisted negotiation to help the parties reach a mutually satisfactory agreement on their own terms. Advocates of ECR generally find fault with traditional modes of environmental policy making and dispute resolution, specifically pointing to failures in legislative and administrative arenas and the drawbacks of litigation (Amy, 1987).
Advocates of ECR suggest several problems that subvert the handling of environmental conflicts at the legislative level. First, it is difficult for all of the interests affected by environmental decisions to be heard. Many environmental and other interest groups cannot participate effectively in the legislative arena because they lack adequate financial resources or staff to engage in lobbying. Even without all of the stakeholders voicing their views, most environmental issues with which legislatures deal are inherently controversial. The innate controversy surrounding environmental policies often precludes a viable consensus among legislators, which in many cases results in the enactment of vague and ambiguous legislation.
The legislative arena’s failure to address conflicts effectively sets the stage for conflicts to reemerge in the administrative arena. As the agencies try to interpret and implement vague policies, controversies about specific actions or projects often flare up. As in the legislative arena, it is very difficult for groups to become involved in administrative decision-making processes. Some parties are ignored deliberately or left out of processes, and some parties, even if invited to the table, lack the financial or human resources necessary to participate effectively (Amy, 1987). Of course, most agencies, at least at the federal level, must receive public comments or hold hearings where concerned parties can voice their preferences. But critics suggest that these procedures only give the appearance of participation, and that comments and testimony actually are not considered seriously in policy implementation (Amy, 1987).
The failure of the legislative and administrative arenas to address environmental conflicts effectively often means that litigation will ensue. However, advocates of ECR produce two primary criticisms of litigation as a dispute resolution process for these conflicts (Amy, 1987). First, litigation usually does not allow for adequate public participation in important environmental decisions. The costs of litigation often are prohibitive to interest groups, especially those groups that are small or represent local interests. The process of litigation is also extremely time-consuming, often taking months or even years for cases to come to trial. After accounting for appeals time, the entire litigation process can take a number of years. These time delays inherent in litigation are costly to all of the parties involved. Second, litigation often is ineffective for actually resolving the issues at stake in environmental disputes. Court decisions frequently fail to resolve the basic issues in dispute between the parties because the courts usually are limited in their ability to address the substantive dimensions of environmental conflicts and thus often render decisions primarily on procedural grounds (Lake, 1980). Many of the underlying controversies therefore remain unresolved, and hence more lawsuits often emerge in the future (O’Leary, 1993).
Advocates of ECR suggest that its techniques to resolve environmental disputes are faster, less costly, more accessible, and more certain than litigation (O’Leary et al., 1999; Folberg & Taylor, 1984). They suggest that the informal negotiation techniques of ECR have several advantages, including: 1) less risk for the parties than those associated with the uncertainty of win-all or lose-all litigation; 2) a reduction in court costs, legal fees, inflationary delays, and other conflict-related expenses; 3) an increase in the efficiency of the outcome, such that all disputants or stakeholders prefer it over all other feasible outcomes; and 4) the increased likelihood of achieving a stable agreement, or an agreement that all parties honor for at least several years (Susskind, Bacow & Wheeler, 1983).
Advocates also identify benefits derived from the participatory nature of ECR processes. They suggest that full participation by all of the interested parties promotes effective negotiation and is a key element in producing better and more equitable environmental decisions. When all parties are at the table, there is a better chance that all the relevant issues will be raised and that the parties will be situated better to make efficient trades, produce more stable and efficient outcomes, and reach decisions that effectively address the substantive nature of the dispute (Bacow & Wheeler, 1984).
The participatory nature of ECR techniques and processes typically also promotes a sense of procedural justice. Procedural justice, a commonly used framework in ADR research, suggests that participants’ satisfaction with an ADR process is a function of their opportunities to control and participate in the process, present views, and receive fair treatment from the mediator, in addition to the outcome of the dispute (Lind & Tyler, 1988). When participants sense that they have received procedural justice, the perceived legitimacy of the decision and outcome increases, reducing the likelihood that it will be challenged in the future. When a decision is forced on stakeholders, they have a natural tendency to reject it; however, if the decision results from negotiations they participated in, they are more likely to accept it (Amy, 1987). Finally, the participatory nature of ECR compensates for the lack of public access to negotiation sessions in the legislative, administrative, and judicial systems and promotes the idea of citizen participation in policy making and decision making, a strongly heralded value in this era of administrative reforms.
ECR Processes
But precisely how is ECR supposed to fashion these favorable outcomes? ECR consists of an assorted set of techniques, processes, and roles that enables parties in a dispute to reach agreement, usually with the help of one or more third-party neutrals. Despite the variance in ECR techniques and processes, however, researchers have identified five characteristics shared by all forms of ECR (except binding arbitration) (O’Leary et al., 1999):