Environmental conflict resolution has grown as a professional practice over the last four decades as a means of dealing with the diverse range of conflict in resource-based disputes. Different methods of dispute resolution evolved as alternatives to traditional court-based approaches, which were often costly and prolonged. Traditional legal and administrative mechanisms have proved to be poorly structured to deal with environmental conflict because of restricted access for interested stakeholders, and a tendency to exacerbate polarization and foster
adversarial relationships (Glavovicet al., 1997). Methods for resolving conflict using mediation and negotiation are frequently referred to as alternative dispute resolution (ADR). Bingham (1986) defines ADR as an embracing term that refers to a diverse range of (usually) voluntary approaches which allow disputing parties to meet face to face in an effort to reach mutually acceptable solutions. It can be used where conflict has already occurred or, where there is a potential for conflict, as a management tool. Practitioners sometimes emphasize the proactive approach in using ADR as a means to manage conflict rather than resolve it (Brown and Marriot, 1993; Glasbergen, 1995).
The range of dispute resolution processes varies from informal, consensual agreement to formal, well-established practices in law. Moore and Priscoli (1989) provide a continuum of ADR processes that range from cooperative to third-party decision making (Table 5.1). A brief overview of the different methods will be discussed under:conciliation,negotiation,mediation,mini-trial, arbitrationandpublic inquiries/panels. This list is not inclusive of all the forms of ADR but provides an overview of different methods that have been implemented successfully over the last few decades.
Conciliation
Conciliation is often an initial and informal process that can be conducted with or without a third party. The purpose is to reduce tension by exploring common ground with respect to technical issues, interpretation, improving Cooperative
decision making
Third-party assistance with negotiations or problem
solving Third-party decision making
Parties are unassisted
Relationship- building assistance
Procedural assistance
Substantive assistance
Advisory non-binding assistance
Binding assistance Conciliation
Information exchange meetings Cooperative/
collaborative problem solving Negotiations
Counselling/
therapy Conciliation
Team building
Informal social activities
Coaching/
process consultation Training
Facilitation
Mediation
Mini-trial arbitration Technical advisory boards
Non-binding arbitration Summary jury trial
Binding
Mediation–
arbitration Dispute panels (binding) Private courts/
judging Adapted from Moore and Priscoli (1989).
Table 5.1. A continuum of alternative dispute resolution processes.
communication and exploring opportunities for a negotiated settlement. The process is designed to bring parties together and establish common ground to build trust and seek solutions. Conciliation is an important first step in conflict resolution, and the earlier it is established, the sooner misconceptions and a further escalation of conflict may be avoided.
Negotiation
Negotiation is the most common form of ADR and involves parties attempting to arrive at a mutual settlement without intervention by a third party. Negotiation is a voluntary process in which parties engage each other to reach a desirable settlement. Views are exchanged and parties aim to realize their interests, but compromise is an important aspect of negotiation as each party attempts to reach a joint agreement. Negotiation is also an important skill that we use daily in our lives. A good negotiator is a fundamental asset to ADR at all levels.
One method of negotiation is termed the ‘mutual gains’ approach (Susskind et al., 2000). The foundation of this style of negotiation is based on first reckon- ing your best estimate of how you will do ifnonegotiated settlement is reached.
It requires parties to understand how they will do without negotiation, and sets the foundation for mutual gains by each party. The primary steps include (after Susskindet al.): (i) analysing and trying to improve your position if no negotia- tion occurs; (ii) probing to clarify both parties’ interests; (iii) inventing options that meet mutual interests; (iv) using objective criteria to argue for a package you favour; and (v) negotiating as if relationships matter.
Mediation
Mediation is distinguished from negotiation by the intervention of an indepen- dent, neutral third party. A concise definition of mediation is difficult to pin down because of the breadth of its use in the field of conflict resolution. Boule and Nesic (2001) suggest that mediation be defined according to a conceptual approach, i.e. in ideal terms, and a descriptive approach, which deals with what actually happens in practice. A conceptual definition identifies mediation as a voluntary process and usually the mediator does not have the authority to impose a settlement. The mediator is a ‘go-between’ who provides assistance between disputing parties by convening dialogue, clarifying issues, improving communication and providing a healthy atmosphere for parties to explore their similarities and differences. The dispute is resolved when the parties decide that they have a consensual and workable solution (Cormick, 1982).
According to Glavovicet al. (1997), mediation offers particular promise in environmental disputes for a variety of reasons:
First, it fosters a mutual learning process through which parties can advance their understanding of the issues stemming from the complex interconnections between natural and human systems. Second, it seeks to engage all interested and affected
parties and explicitly promotes better understanding and accommodation of their individual and collective interests. Third, it is not confined to jurisdictional domains and therefore transcends the cross-cutting boundary conditions of environmental disputes.
(p. 273) Mediation has grown as a recognized field of practice over the last 30 years, and a considerable literature deals with case studies and skills involved in environmental mediation. Boule and Nesic (2001) provide a comprehensive guide to the principles and practice of mediation.
Mini-trial (case presentation)
This form of ADR is a hybrid combination of dispute methods that provides a structured exchange of information. Moore and Priscoli (1989, p. 81) note that
‘it involves a data presentation component similar to that in litigation, a negotia- tion component and the potential for third-party mediation and an advisory opinion’. The mini-trial requires a third party who usually presides over the dis- putants as a mediator or neutral party. The individual does not usually deliver a judgement, but on the request of the participants may offer advice as to how a court might decide the case. It is a voluntary process that provides a forum for structured negotiation and exploration of scientific or cultural issues relevant to the dispute. Often, cross-examination is included between parties, involving experts or lawyers, and a time limit is imposed on the exploration of issues. How- ever, no binding judgement follows. Rather, the senior management or indivi- duals responsible for decision making negotiate a settlement based on the presentations and examination of evidence.
Mini-trials have been used successfully in commercial disputes, conflict between large companies and with large government agencies. The objective of the mini-trial is to prevent business/agency disputes from becoming costly legal disputes and moving the issues to the courtroom. Mini-trials are most often used for large-value commercial cases because it is a more expensive process compared with other forms of ADR methods (Bevan, 1992).
Arbitration
Arbitration is a more formalized and established approach compared with the previous ADR methods. Arbitration may be initiated as a result of contract clauses, legislation requirements, or be voluntary once conflict has originated.
Similar to mini-trials, arbitration involves third-party decision making with respect to the outcome of the dispute; however, the third party is neutral to the process and may not be selected by the disputants. The third party may consist of a single arbitrator or a panel of varying numbers.
Arbitration can be non-binding, where parties do not have to agree to the judgement of the arbitrator, or it may be binding in the decisions reached. In non-binding arbitration, disputing parties control the design of the process
and must approve the outcome of the decision. Disputants can determine the flexibility of the process by agreeing on the rules for entering evidence, cross-examination procedures, choosing the arbitrator or deciding on levels of confidentiality (Neumann, 2001). Binding arbitration tends to be less flexible with respect to the parties’ input, and requires the disputants to consent to the final decision of the arbitrator.
Arbitration is used most frequently where the arbitrator(s) knows the techni- cal, cultural or legal issues associated with the dispute. Arbitration is based on the merits of the case and evidence presented. The format for the presentation of evidence can be varied, from an informal presentation of substantive issues to a structured setting where evidence and cross-examination are given as if in a courtroom.
Public inquiries/panels
The use of public inquiries and panels is common in environmental disputes which have escalated to a state or provincial level. Often, they are ‘ad hoc’ and set up to deal with a specific conflict or resource management issue (Neumann, 2001). For example, in Australia, the Fitzgerald Inquiry investigated the land use issues with respect to mining and conservation on Fraser Island, the largest sand island in the world. In Canada and the USA, public inquiries are commonly used in controversial contexts. Heated forestry-related conflicts on Vancouver Island have raged for decades and, most recently, a public advisory panel was employed to resolve ecological and economic interests in the Clayoquot Sound area.
Panels or boards can also be used as a permanent adjudicative forum for resolving differences. Environmental assessment legislation, worldwide, often uses panels to evaluate the scope of impact assessment, assess the impacts of proposed developments, advise whether a project should proceed, or evaluate the mitigation required for project development. Boards are also established as permanent conflict resolution venues where harvesting practices, impacts of development or grievances about the process can be resolved. In Ontario, the Ontario Municipal Board, a semi-judicial and independent tribunal, has functioned since 1932 to adjudicate appeals under various statutes. Washington State and British Columbia use a Forest Practices Board to review timber harvesting practices.
Summary and Conclusions
Conflict is an essential component of the human condition and often an agent of change. With environmental conflict, change has occurred dramatically over the last several decades to reflect the changing values in society with respect to how resources and the environment should be developed. A fundamental shift has developed in how we view our rights to property and how certain property rights should be distributed. Different environmental values provide alternative views
of human rights to the environment and how we determine our impacts on eco- systems. Increased public input and a wider audience have changed the scope of decision making in resource management. Alternative methods of dispute reso- lution have been developed to resolve and manage environmental conflict to supplement traditional court-based approaches. IREM is a decision-making pro- cess that recognizes conflict and manages it as a positive force. ADR approaches can be integrated into IREM as a means of dealing with different scales of conflict and improving communication and relationships between stakeholders.
The following case study provides an example of diverse interests getting together to solve environmental problems in a large, isolated river basin in northern Australia. The stakeholders have a diverse set of values and have inter- ests that conflict with respect to how the watershed should be managed. What is the mechanism that brings the different values together? How is it managed?