Organizational Dynamics of Environmental Regulatory Negotiation: Examining How Processes

INTERNATIONAL JOURNAL OF ORGANIZATION THEORY AND BEHAVIOR, 8 (3), 396-424 FALL 2005

EXAMINING BARRIERS TO NEGOTIATED ENVIRONMENTAL AGREEMENTS

Catherine A. Ramus and Alfred A. Marcus*

ABSTRACT. We bring together disparate negotiation theory research in order to identify a composite set of potential barriers to reaching agreement in environmental negotiations. This framework builds on behavioral decision theory, showing barriers that arise from personal values and institutional values and norms, as well as from situational elements that influence individual behaviors and organizational strategies. We contribute to the literature on organizational behavior by making explicit the relationship between the strength of the situation and organizational behavior related to negotiations. The elements of situational strength have not been addressed adequately in prior negotiation literature. We incorporate this concept into a comprehensive set of barriers to offer explanations for the intractability of many environmental disputes.

INTRODUCTION

Environmental regulatory negotiations are prevalent; government agencies often negotiate with companies, community groups, trade associations, and other stakeholders over a myriad of environmental issues ranging from rulemaking to voluntary agreements. In many cases environmental regulatory negotiations are very complex; they typically include multiple stakeholders and feature intricate technical issues and politically charged debates (Ramus, 2003). Indeed, many of the issues in
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* Catherine A. Ramus, Ph.D., is Assistant Professor, Donald Bren School of Environmental Science and Management, University of California, Santa Barbara. She studies organizational factors that influence socially and environmentally sustainable business practices. Alfred Marcus, Ph.D., is a Professor, Carlson School of Management, University of Minnesota. His teaching and research interests are in strategy and public policy as it affects businesss.

Copyright © 2005 by PrAcademics Press

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dispute are nearly intractable, with one or more parties being unwilling (or unable) to compromise because of the ideological importance of the issue. Not surprisingly, therefore, many environmental negotiations end in stalemate (Burkardt, Lamb & Taylor, 1998).

In this paper we define environmental negotiations as “conflicts in which one or more parties represent” or claim to represent “the interests of the environment” (Wade-Benzoni et al., 2002, p. 42). We seek to identify the factors that influence the outcomes of environmental regulatory negotiations that range from two-party environmental permitting or enforcement negotiations to more complex multiple-party and multiple-issue negotiations such as superfund cleanup, the licensing of hydropower projects, energy development in pristine natural areas, or the harvesting of timber in old growth forests.

A Description of Environmental Negotiations

The nature of environmental negotiations is quite different from what many might traditionally imagine when thinking about a negotiation situation. Seldom are environmental negotiations bilateral monopoly problems where two parties bargain to reach an agreement over a single issue, like price. Environmental negotiations tend to be more complex for a number of reasons. Environmental negotiations often involve multiple interested parties (governments, multinational corporations, civil society organizations, etc.). The media and public often are watching and reacting to progress and outcomes, with stakeholders often waiting to see if progress is being made before getting involved, which can add to the complexity since those at the table never know when a different part of the public will weigh in on the discussion. Moreover, environmental negotiations are often more values-based than fact-based, with issues relating to ideology or ‘rights” in environmental disputes. In environmental negotiations there is often a disparity in power between the parties that is compensated for by coalition formation. Finally, in environmental negotiations there can be long time horizons, with parties returning to fight over the issues again and again. The inherent conflicts may never be settled. Each negotiation just resets the rules for subsequent negotiations.

Furthermore, at their most complex environmental negotiations are very different from labor union disputes, one of the most studied types of negotiations. Unlike labor disputes which generally involve two clearly identified interests that are roughly equal in stature (O’Leary, Durant,

EXAMINING BARRIERS TO NEGOTIATED ENVIRONMENTAL AGREEMENTS 423

Fiorino & Weiland, 1999), conflict about environmental issues often involves multiple groups of stakeholders with different levels of power (e.g., local, state and national governments, local and national environmental groups, major corporations, and local citizens). And, unlike labor disputes where the issues are generally concrete and quantifiable (i.e., pay and benefits), environmental disputes often involve ideologically-charged and difficult to quantify issues such as species diversity versus economic growth, or preserving natural resources for future generations versus prosperity for this generation, for example. As such, the issues involved in environmental negotiations are difficult to trade off with each other. Finally, labor disputes have a highly institutionalized process with a long history that is routinely used for the resolution of differences, whereas environmental dispute resolution has no such single “tried and true” procedural blueprint upon which disputants can ground their discussions. For all these reasons we argue that environmental negotiations are more difficult to resolve than most labor negotiations and that as researchers we must probe more deeply into organizational and negotiation theory to understand their dynamics.

Intractability of Environmental Negotiations

Many environmental disputes are complex and resist settlement. These disputes have been called “intractable” (Campbell, 2003). But it is the settlement of just such disputes that is likely to yield the largest rewards. Other than negotiation, there are likely to be few other ways to overcome the impasses that arise from these disputes. Why are such disputes mired in deadlock? Why are they so difficult to resolve? Real-world experience in creating workable agreements remains limited (Bacow & Wheeler, 1984; Breyer, 1993; Howard, 1994; Osborne & Gabler, 1993; Sexton, Marcus, Easter & Burkhardt, 1999). According to O’Leary (1995), work based on empirical evidence on environmental negotiation is rare, the research foundations of the literature in this area are weak, and much of what we claim to know is based on speculation. Additional research and analysis is necessary to determine what works, what does not, and why.

Evidence of problems in and solutions to resolving environmental disputes comes from an analysis of the reasonably successful Alternative Dispute Resolution (ADR) process. ADR is meant to resolve disputes more expeditiously and with less cost than a more confrontational regulatory approach (O’Leary & Bingham, 2003). This technique involves some form of consensus building, joint problem solving, and negotiation of conditions of compliance. The parties in the ADR process have direct face-to-face interaction, and they reach decisions by mutual agreement. They jointly explore and resolve their differences with the assistance of a third-party mediator or facilitator, who in most cases has no formal authority to impose an outcome on the parties. The various parties in ADR processes are free to withdraw and seek resolution through other means at any time. Bingham, in a 1986 study, assessed the effectiveness of ADR. She examined 132 cases; three out of four of the cases involved site-specific issues, and one in four involved broad policy issues. Bingham reported that agreement had been reached in a high percentage of the cases she examined — 79% of the site-specific cases and 76% of the policy issues — and that 80% of the site-specific cases and 41% of the policy cases featured solutions that were fully implemented.

However, the main reasons for the high rate of success in the examined cases had to do with the pre-screening of the disputes. Facilitators only selected cases that met criteria they believed were necessary for a positive outcome. These pre-screening criteria included: number and types of parties, authority of parties to the negotiation to make decisions, the presence of incentives to reach agreement, agreement of parties regarding facts and scope of issues, clear deadlines, clarity/ agreement over procedural steps, ability of negotiation to satisfy each party’s interests, and whether the dispute was already in litigation. These criteria provide us with clues as to what makes some disputes nearly intractable. Intractable disputes would tend to have:

-  Several parties that have been vociferous opponents for considerable periods,

-  Few incentives to agree,

-  Lack of consensus about the facts and scope of the issues,

-  Unclear deadlines,

-  Uncertainty about procedures,

-  The inability of the parties to satisfy each other’s underlying interests, and

-  Ongoing litigation, which stands in the way of settlement.

Understanding the Barriers, Including Situational Strength

In this paper we help to coalesce this thinking with the purpose to provide a better understanding of the complete set of barriers that may prevent participants of a complex environmental negotiation from reaching an agreement. We draw on Raiffa’s (1982) traditional decision theory work and related research (Bazerman, 1998; Bazerman & Neale, 1992; Neale & Bazerman, 1991; Thompson, 1990, 1998; Wade-Benzoni et al., 2002) that questions whether the behavioral decision theory underlying Raiffa’s approach can fully explain failures in ideologically-based disputes involving intractable or nearly intractable societal issues in areas such as the environment. Accordingly, we include factors such as individual values and various social institutions that influence ideologically-based negotiations.

In addition, we are interested in the impact of a set of situational factors that are missing from the general negotiation literature, namely factors related to the strength of the situation (Mischel, 1968; 1973). Bazerman, Curhan, and Moore (2000) have asserted that situational factors are often more important than dispositional variables in determining variance in individual negotiators’ behaviors. Prior research on negotiation processes has focused on the impact of a variety of situational factors on negotiations; for example, structural power differences, the history of the relationship between parties, the involvement of third parties, etc. have been the subject of research (Boardman & Horowitz, 1994; Marwell, Ratcliff, & Schmitt, 1969; Pruitt & Johnson, 1972). Nevertheless, situational strength has been rarely discussed in the negotiation literature despite the fact that it can influence individual and organization perception and feature cognitions concerning the context of the dispute, such as clarity of the legal mandate, the certainty of deadlines, the clarity of one’s own and the other parties’ goals, the certainty of negotiation procedures, and the certainty that the negotiated outcome will satisfy the interests of each of the parties.

We go back to an important literature about situation strength that we believe can be usefully applied to environmental negotiations. Mischel (1968; 1973; see also Shamir, 1991) showed the effect of situational strength on individual behavior. Situations that are characterized by clear goals, well-recognized rules of conduct, availability of rewards, and a strong rewards-performance relationship are “strong” ones. They tend to produce uniformity in behavior. “Weak” situations, in contrast, feature unclear goals, ambiguous rules of conduct, uncertain availability of rewards (desirable outcomes), and an imprecise link between performance and desired outcomes. “Weak” situations produce more variance in behavior. We maintain that if there is uncertainty around key situational aspects – uncertainty around legal mandate, deadlines, stakeholder goals, procedural steps, and desired outcomes — that the negotiations will be more intractable because there will be greater variance in the behaviors of the individuals and the organizations involved. These types of uncertainty increase the chances for stalemate. They interact with factors mentioned in the literature to build resistance to resolution. For example, where greater uncertainty exists with regards to the legal mandate (a weaker situation), we would expect greater variance in negotiator behavior resulting in turn in greater difficulty in coming to terms. On the other hand, where the legal mandate is clear (a stronger situation), we would expect greater uniformity in negotiator behavior and greater ease in avoiding deadlock.

The strength of a situation affects an organization’s strategy as well as individual behaviors. Weick (1996) argued that there were reciprocal influences between the two, and our argument is that the situational strength affects both. While Mischel (1968) explained that there are mechanisms whereby individual behavior is affected by the strength of the situation, the key mechanism at the organizational level for forming collective views of external stimuli is culture according to Schein (1985). It is clear that the strength of the situation can affect both collective and individual behavior. The weaker the situational strength, the more varied we would expect to find organizational strategies, and the more varied the behavior of individuals. We will argue below that most environmental negotiations are weak situations, which leads to a greater difficulty to find mutually-agreeable resolutions.

Table 1 shows which aspects of decision theory analysis are particularly salient when analyzing environmental negotiations (number and nature of the parties, number and nature of the issues, 3rd party intervention, and history/power parties), and which factors need to supplement this framework to make it more complete — values (self-enhancement, self-identity, and self-perception), and organizational/ institutional factors (regulative, normative, and cognitive). To these we add factors related to situational strength, elements which have been missing in the previous literature.

TABLE 1

Barriers to Reaching Agreement in Environmental Negotiations

Factors Related to Values

Factors Affecting Certainty

Factors Affecting Complexity

Our contribution here is two-fold. We first bring together multiple conflict resolution/negotiation theories into a single, composite whole; then we add a new set of factors, which we call situational strength, to the analysis of the multiparty negotiation process. In so doing we hope to catalyze thinking of both researchers and practitioners as to the range of key variables that influence outcomes.