Main Topics


I. Home

II. Environmental Threats in Ohio

III. Health Impacts

IV. The Regulatory Agencies

V. Prioritization of Environmental Risks

VI. The Disconnect

VII. Ensuring Participation

VIII. Resolving Environmental Disputes

IX. Conclusion

X. Citizens' Guide to Environmental Protection

XI. About the Green Environmental Coalition



A Handbook for Professionals Serving Socioeconomically Disadvantaged Communities:
Educators
Health Professionals
Social Service Professionals


Produced by the Green
Environmental Coalition
in Association with The Ohio Environmental Education Fund








Mediation and Facilitation to
Resolve Environmental Disputes 




After your student/client/patient has attempted to resolve environmental issues independently or together with your help, the dispute may not be resolved. No well-identified point of contact exists in the agencies responsible for dealing with these issues. Even if clients find the appropriate agency, the issues are complex and difficult to understand. Considerable agency overlap of authority over a single issue may further complicate matters. Besides the agencies, the client must deal with companies focused on profits and uninterested in its meddling neighbors. Under these circumstances, the individual becomes disenchanted with the seemingly inaccessible bureaucratic and political maze. She/he may give up, lash out in anger, or even consider litigation. When communications break down, Alternative Dispute Resolution (ADR) may play an important role in resolving conflicts.

I. Benefits of ADR

  • Helps clarify the problem and the underlying issues and interests
  • Helps build respect for and a better understanding of different viewpoints
  • Encourages greater creativity and a broader range of options for mutual exploration
  • Leads to better informed, more creative, balanced and enduring decisions
  • Increases commitment by sharing responsibility for the process and outcomes
  • Improves chances of implementing a permanent solution
  • Improves the working relationships between all parties in the process
  • Enhances democratic decision-making by involving citizens and by keeping public values at the forefront
  • Enhances citizen capability to promote more fundamental and meaningful citizen participation
  • Empowers the community/individuals
  • Acknowledges community knowledge

II. ADR Theory

In theory, ADR participants move beyond adversarial to collaborative decision making. Working with the neutral, participants sit down together to reformulate their issue in a way that sidesteps the conflict. Parties play an equal role in designing and implementing its ADR mechanisms. They try to bridge their differences, to find common ground, and to identify creative new solutions to their conflict. As an interest-based negotiation strategy, the ADR model requires disputants to surrender their "positions" and to move to "interests" as the basis for negotiations. The idea is that interests (e.g. the value of protecting human health and the environment) underlie positions (e.g. the opposition to burning hazardous wastes), and that interests, unlike positions, are unassailable. In order for the ADR process to work, the parties must be willing to negotiate, to work together to reach agreement. If a party's position is no, and there's no chance of negotiation, then ADR is inappropriate.

  • The Key Elements of Interest-based Negotiation Strategy
  • (Excerpt from Fisher and Ury, Getting to Yes)
    • Separate the people from the problem.
    • Focus on interests not positions.
    • Invent options for mutual gain.
    • Insist on objective criteria.
    • Know your best alternative to a negotiated agreement.

II. The Spectrum of ADR Processes

ADR comprises a range of processes used to foster dialogue, clarify areas of agreement and disagreement, and to resolve disputes. Generally, ADR involves the assistance of an impartial neutral skilled in problem-solving. Some of the processes, such as mediation, are more informal and are designed to help the parties develop their own solutions. Other more formal processes, such as arbitration, may give an outside third party authority to impose binding solutions on the disputing parties. This section includes information useful to exploring the ADR field.

  • Common Features of Collaborative Approaches
    • Participation is inclusive and voluntary
    • Participants have ownership of the process
    • People are kept informed
    • A common definition of the problem is used
    • Participants help educate each other
    • Multiple options are developed
    • Decisions are made by agreement
    • Participants oversee implementation
    • The process supplements existing legal procedures
  • Most Useful ADR Processes

    While ADR mechanisms span multiple problem-solving strategies, the three most useful include (1) the ombuds , (2) mediation , and (3) arbitration . The ombuds and mediation fall on the "soft" side of the spectrum in which parties get assistance . Arbitration lies at the other end of the scale. Here parties have someone decide for them . Of the three mechanisms, the State of Ohio currently offers only mediation services for environmental disputes. The main focus of this section will thus lean toward mediation. Nonetheless, we will discuss both arbitration and the ombuds, since these mechanisms are employed increasingly nationwide.

The Ombuds

An ombudsperson is an impartial and independent party appointed to receive complaints and provide information and confidential assistance to help achieve resolution of conflicts. She/he is an information resource, offering guidance when an individual does not know where to begin or offers help when regular channels have failed. The Ombudsperson acts as a liaison between the client and agencies or companies. She/he communicates grievances, requests, suggestions, concerns, or issues which cannot or would not be handled appropriately through normal reporting channels, or which have been submitted through such channels but have not received a satisfactory response.

Mediation

Mediation is frequently used as a first resort in the event of a dispute. The goal of mediation is problem solving and preserving working relationships. The mediator helps the parties reach their own solution, assisting in the process so that the disputants can come together and reach a settlement The stage at which mediation can be used in a case varies, but can be employed at any point in the dispute. The process involves a series of joint meetings to establish ground rules, gather information, and set priorities. Once a settlement is reached, the parties and the mediator prepare and sign a written settlement agreement.

Arbitration

Reference of a dispute to an impartial person or persons, called arbitrators, for a decision or award based on evidence and arguments presented by the disputants. The parties involved usually agree to resort to arbitration in lieu of court proceedings to resolve an existing dispute or any grievance that may arise between them. In arbitration, the arbitrator is a decision-maker who issues a ruling. Parties are usually represented by counsel, who each argue their case before a single arbitrator or a panel of three and the arbitrator makes a decision based on the evidence. Participants in an arbitration yield the control of the outcome to the arbitrator. It is rare to successfully appeal an arbitrator's decision. The parties can generally control the ground rules of the proceedings. It is usually less formal and more flexible than trial. There is less pre-hearing discovery--the rules of evidence are more relaxed; parties can select the neutral; the process is private and confidential.

III. Evaluating Cases for ADR

Not every dispute can be resolved through ADR. Each case must first be assessed to determine its suitability for resolution through negotiation. The thirty objective questions in the suitability screen reveal which factors may promote or hinder successful outcomes with ADR:

http://www.cpradr.org/suitscrn2.htm

View cached Adobe PDF of the web site at the time of publication:
Assess ADR Suitability

  • When to Use Mediation
    • Aside from the dispute, the parties have had an ongoing professional or personal relationship which could and should be resumed.
    • The position of both sides has merit and, if tried, the range of possible outcomes for the dispute is broad.
    • Special factors are at stake in the dispute (e.g. vital corporate interest, need to avoid an adverse precedent, protection of reputation, runaway verdict or judgment, etc.)
    • It is advantageous for both sides to have a greater degree of involvement and some control over the outcome of the dispute.
    • A presentation by both sides might facilitate a more realistic attitude about the case and/or a better understanding of the issues. 
    •   The mediator may help break a stalemate or diffuse emotions and hostility which are impeding a settlement
    • Inflicting damage to the opposing side is not of primary interest.
    • Help is desired in deciding upon or minimizing the amount of discovery needed for the case.
    • The case does not have a significant amount of money at stake and is not worth the expense of trying.

Jim and the Neighbors Discover Mediation

Jim went to the company as his first attempt at resolving his conflict. Not knowing whom to ask, he talked to "a man in a white shirt," someone with authority from his perspective. However, the company denied responsibility for the "alleged emissions." Jim then turned to the "Government" pages in the phone book. He called everyone he could find, including the Governor's office. At one point he admits to having contacted the Coast Guard , because the agency lists chemical spills among its responsibilities. In every case, he was rebuffed. Either the agency had no authority or they promised to look into the matter. No single agency followed up. He finally contacted his city government, who referred him to their Mediation Services.

The City's mediator brought together the principal stakeholders in the conflict: Jim, the Neighbors and the company. While the company's representatives agreed to attend a single mediation session, they insisted that their legal counsel be included--experts in environmental litigation, it turned out. In effect, Jim's side was "outgunned" at the mediation table.

The Need for an Ombuds program

While various State agencies in Ohio provide Ombuds services to populations with issues related to mental health, disabilities, and aging, none addresses environmental issues. The State has the authority to appoint an ombuds[person], yet it defers to the EPA's Public Information Center (PIC) as such. PIC, however, functions as an information retrieval service. Individuals such as Jim and the Neighbors need more than information. While PIC maintains that it can help the public access difficult subject matter, they are a single agency, limited in time and personnel. Yet folks like Jim and the Neighbors need a lot of time. They need someone to help them understand difficult technical jargon; to help them negotiate the complex bureaucracy that typifies our governmental regulatory system, to act as a liaison between them and the agencies or company; and to help them decide the next step. Fortunately for Jim and the Neighbors, the mediator recognized the lack of the balance of power necessary to successful mediation and contacted the Coalition. The Coalition then stepped in to fill the role of Ombuds for Jim and the Neighbors.

  • Video clip: Jim talks about his experiences concludes that the responsibility for assistance lies with the government.:
    The Neighbors get Help
  • ADR or Litigation?
  • While the State of Ohio makes no provisions for mediation or arbitration in environmental disputes (although there is a trial program in place at the Ohio Hazardous Waste Facility Board), there is an increasing tendency nationwide to employ this ADR mechanism instead of litigation. ADR is preferable to litigation when
    • Both sides are comparable in terms of business, sophistication, financial resources, etc.
    • Speedy resolution is critical because the matter involves a product(s) undergoing rapid technological change.
    • The respective attitude of each side towards the other is relatively objective, respectful, open-minded, or at least tolerant.
    • An inexpensive resolution of the dispute is important.
    • The issues involved in the dispute are delicate and involve testimony of directors or senior management, production of sensitive materials, divulgence of trade secrets or important competitive information, etc.
    • Confidentiality regarding the proceedings is important.
    • Publicity concerning the dispute or its outcome should be avoided.
    • The issues involved in the dispute are highly technical and can be thoroughly understood only by someone with special expertise.
    • The costs of pursuing litigation are disproportionately large in comparison to what either side can reasonably expect to recover or save.
    • Tensions and emotions are impeding communication.
    • Issues are sensitive and personal.

    IV. Challenges of ADR for Disadvantaged Communities

    Equal participation in environmental decision-making requires that the parties be well-informed about the issues and voice their concerns about potential risk. Full participation for individuals in disadvantaged communities may prove difficult.

    • Barriers to communication may include cultural and language differences.
    • Communication difficulties can lead to mistrust and misunderstandings.
    • Participation may be impeded by an inability to grasp the complex jargon and data inherent to environmental issues.

    Difficult issues require patience, time, and participation to develop a plan of action that is broadly supported and can be implemented.

    • When citizen time and resources are limited, commitment to the process and group progress may lag (child care, transportation, work).
    • Overload of opportunities to participate may become a problem as individuals become burned out from too much engagement and too many issues.

    V. Links to More ADR Resources

    Lacking a State of Ohio Office of Ombudsperson to ensure that disadvantaged populations participate effectively in decisions that affect their families and the community, they need your help to become well-informed and to participate on an equal footing with the other stakeholders to environmental issues. This section includes additional resources to help you ensure their full participation.

     

    References:

    Action Dispute Resolution Services. http://www.adrservices.org

    Charla, L. Fl. "ADR Used More Often in Waste Site Disputes." National Law Journal , v14n23, February 10, 1992, p. 30-32.

    CPR Institute for Dispute Resolution. http://www.cpradr.org/

    Ehrman, K. A. "Settling Disputes Through Mediation." Nation's Business , v8 n11, November 1992, p. 48-49.

    Fox, J. Charles. "A Real Public Role." http://www.epa.gov/reinvent/notebook/eli1198.htm

    View cached Adobe PDF of the web site at the time of publication:
    Fox, J. Charles. "A Real Public Role

    Hayward, Stephen L. "ADR." Business Horizons V43nl, Jan/Feb 2000, p. 2-4.

    Heiman, Michael K. "In Whose Interest?: Alternative Dispute Resolution and Hazardous Waste Facility Siting. Presentation for the 1997 Annual conference of the Association of Collegiate Schools of Planning, Fort Lauderdale, Fl, Nov. 6-9, 1997.

    The Institute of Medicine. Toward Environmental Justice: Research, Education, and Health Policy Needs . Full text available on line at http://www.nap.edu/

    Ohio Commission on Dispute Resolution & conflict Management. http://www.state.oh.us/cdr/

    Public Participation and Accountability Subcommittee of the National Environmental Justice Advisory Council. "The Model Plan for Public Participation." http://es.epa.gov/oeca/oej/nejac/pdf/modelbk.pdf

    State of Ohio Environmental Protection Agency. "Criteria for Decision by the Director." Regulations , Volume 1, Ref. 3745-31-05 (C), p. 1286.

    Tillson, Tamsen. "Common Sense Resolution." Canadian Business v 7, 3 Mar 1997, p. 83-84.

    United States Environmental Protection Agency. "Community Cultural Profiling Guide: Understanding a Community's Sense of Place." http://www.epa.gov/ooaujeag/stakeholders/pdf/owccpgfct.pdf

    University of Kansas at Kearney, Office of the Ombudsman. "Have a Problem? How to Solve it." http://www.unk.edu/offices/ombudsperson/problem.html

    2000 Green Environmental Coalition. All rights reserved worldwide.
    Cached documents copyright by their respective authors.





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