Common ground
They sit. Eyes glare. Fists clench and unclench. One can almost hear teeth grinding. The shared animosity is practically palpable. The table between them is a simple but effective reminder of the greater chasm that divides them. Each brings a determination to be anointed the good guy -- it is the others at the table who are the culprits.
Welcome to the world of environmental mediation -- a world in which antagonisms must be overcome, fantasies quashed, economic realities addressed, shared truths uncovered and agreed-upon solutions reached. This world is gaining numbers and strength as an increasingly litigious society seeks quicker, less costly and more reasonable resolutions to disputes over flora and fauna, air and water.
Getting to the root
A thorough understanding of the causes of a dispute is crucial to all mediations, but information gathering is not as easy as it may seem. The most challenging aspect of mediation is dealing with the personalities involved in the dispute. Some parties cannot be in the same room without their shared and tortured history destroying attempts to gather facts and reach an accord. No one is willing to come forward and say, "I polluted," and all parties have myriad arguments for why they are not culpable and should be excluded from the mediation process.
This initial gathering of all the dispute participants provides an opportunity for each to present his or her side of the story and to glean from it some basic shared facts. Mediation is, above all, an attempt to take all parties' needs into account while searching for a means to reach a resolution.
A general assembly such as this is not always possible, nor manageable,however. This is particularly true when there are several parties to the dispute, for this kind of gathering does not lend itself to dispute resolution. Some issues are too sensitive to articulate in the presence of adversaries. Candor may only come when the parties are put in separate rooms and interviewed individually. In these one-on-one caucuses, a mediator may find that what's been briefed may not be the factor driving the dispute. Hidden agendas may be unveiled during these caucuses.
Getting people to the table to work on a plan and agreement to resolve an environmental dispute avoids the drain on human and financial resources required by a long trial and subsequent appeals.
The players' game plans
Antagonisms are a given in any mediation. A conflict between two private parties, who for some time have been eye to eye over personal issues such as contracts and finances, is often characterized by outright loathing of one another. However, in cases involving government agencies where much information has been made public, antagonism usually is leveled at the mediator. Agencies might irritate people, but it's almost impossible to personalize them.
Environmental mediation usually involves federal, state and local agencies. Adding a public agency or agencies to any proceeding creates an entirely different dynamic than does a mediation that involves private parties only.
Each public agency brings its own agenda to a dispute. That competition necessitates an intramural mediation before addressing the tougher issues the private parties bring to the table. A recent San Bernardino County, Calif. dispute over illegal dumping on a site in the Cajon Pass, for example, included more than 60 parties; among them the 50 companies alleged to have done the illegal dumping. Each of the government agencies involved in the dispute -- the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife service, the California Department of Fish and Game, the California Integrated Waste Management Board and the County Department of Health -- had its own priorities. In this particular case, the county wanted to clean up the site and the California Fish and Game wanted to protect native species, but other agencies had differing priorities.
In 1990, the federal government encouraged public agencies to resolve such disputes outside the courtroom. The Administrative Dispute Resolution Act of that year (5 United States Code Sections 571-583) lays out a broad spectrum of government interests in using mediation rather than the courts to solve disputes. The act was further affirmed in a May '98 presidential memo that directed each federal agency to take steps to promote the greater use of mediation and arbitration in conflicts.
The beauty of mediation is that parties in a dispute come to adopt common goals and methods over time; goals and methods over which they had some say.
The government's underlying strategy is, of course, cost containment. Getting people to the table to work on a plan and agreement to resolve an environmental dispute avoids the drain on human and financial resources required by a long trial and subsequent appeals. The illegal dumping dispute in San Bernardino, for example, could have dragged on in the courts for two to three years and its ruling appealed for several more months. No one, public or private, wants the expense associated with such duration.
While cost is common to all dispute resolution, the nature of those costs can be extremely disparate. Mediators are paid, on average, $2,000 to $3,000 a day, and these costs are shared by all parties to the dispute. Fees for litigating a dispute can cost up to $3,000 per day, or even $100,000 or more per month -- for years if the case is not settled expeditiously -- and these costs accrue to parties individually.
There are other practical benefits to mediation as well. Both mediation and a courtroom trial rely on scientific testimony and opinion, but at a trial, such testimony is extremely difficult to elicit and takes up time and courtroom space. The type of dialogue that characterizes mediation, on the other hand, not only allows such information to surface more quickly, but it can be clarified and understood with greater ease. The result is a quicker consensus and the recoup of time and money -- powerful stimuli in reaching a quick and effective resolution.
The incentives
In the Cajon Pass dispute, in which the 50 companies were alleged to have dumped material on the property illegally, the State of California primed the pump with $750,000 for the cleanup. In exchange, San Bernardino County would assure that the rest of the clean-up costs would be covered. In order to make that assurance, the county needed an agreement among the defendants. Given the number of parties with potential liability and the complexity of the situation, it became apparent that the cost of litigating the dispute would equal or surpass the cost of negotiating a cleanup.
While financial incentives drive much of the speed with which mediation can be accomplished, government agencies are also spurred by the fact that mediation usually insures that contaminated sites are cleaned up quickly and endangered species protected in a timely manner. In San Bernardino, for example, the responsible companies faced a state deadline of eight months after which the $750,000 offer would be rescinded. The county, for its part, was spared dealing with any disaster the polluted site could have caused during bad winter rains.
One of the most volatile aspects of any contamination dispute is the uncertainty and extent to which laws were violated. This leaves defendants uneasy over the potential for future legal demands. However, if the clean-up work plan negotiated by all parties is followed diligently, there should be no future problems. There is an end to the process.
Equally important are the less tangible benefits of mediation. If all the parties in a dispute work on the clean-up plan and allocate responsibilities as the mediation progresses, each buys into the plan and emerges with a greater interest in its outcome. The beauty of mediation is that people come to adopt common goals and methods over time; goals and methods over which they had some say. This blunts antagonism and gets everyone in the boat rowing faster and in the same direction.
The future
Significant environmental issues are not new to dense urban areas but concerns grow each day for the environmental health of less populated areas. As we add people and lose space, businesses and environmental issues will blend. The result will be conflict. Dense urban areas will become battlegrounds over brownfields issues and suburban areas will gird themselves against new development and its concomitant sprawl.
Mediating disputes surrounding the redevelopment of brownfields could muffle the public outcry that is sure to accompany these very visible development efforts. Mediation will provide affected communities the opportunity to participate in the decision-making process, allow for teamwork in constructing methods for site assessment, environmental redevelopment and cleanup and promote the goals of economic redevelopment and environmental protection. An informed and involved community is better equipped to assess the costs and benefits of the redevelopment of brownfields and therefore more willing to reach a compromise.
Development sprawl, too, will cause major rifts in communities as more and more upstream communities face the ire of downstream communities hit by the outfall from new developments. Mediating the rifts over polluted beaches and waterways can save years of ill will and avoid costly courtroom trials.
Mediation may not be the solution in all disputes, but in many cases, especially in environmental disputes, it can be the quicker and less expensive route. Mediation provides a more comprehensive and neutral hearing of all sides of a dispute; establishes a forum for dialogue in which defendants with varying interests identify possible outcomes; separates fact from fantasy; identifies and evaluates risks and options based on statutory, regulatory and administrative requirements and policy; blunts antagonisms; levels the playing field for all participants big and small; and with key players, negotiates a settlement that avoids litigation and cleans up the environment. A successful mediation allows those with diametrically opposed positions to focus on and attain a common goal.
e-sources
U.S. Environmental Protection Agency's (EPA) Office of Enforcement and Compliance Assurance (OECA) - Alternative Dispute Resolution Fact Sheet --
es.epa.gov/oeca/osre/950500-2.html
Institute for International Mediation and Conflict Resolution --
www.iimcr.org
American Arbitration Association --
www.adr.org
Western Justice Center Foundation --
www.wjcf.org/envir.htm
ShermanWeb (sites resources and books on mediation and negotiation) --
www.sherm.com/family/things/law/mediation.html
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This article appeared in Environmental Protection, Volume 11, Number 10, October 2000, Page 70.
This article originally appeared in the 10/01/2000 issue of Environmental Protection.