Environmental Dispute Resolution: Past, Present, and Future

Unfortunately, as with many other public concerns, traditional legislative, administrative, and judicial means have often failed to productively resolve environmental disputes. Instead, they have commonly resulted in drawn-out and expensive legal or administrative battles that have left parties unsatisfied with the outcomes, sometimes so much so that stakeholders are unwilling to implement those outcomes.

The practice of environmental dispute resolution (EDR) first emerged around 50 years ago to provide more effective ways of addressing environmental concerns. In the years since, the field’s focus has evolved from bringing in mediators to help resolve litigation to proactively resolving disputes before they end up in litigation. Recently, EDR has expanded to encompass a full range of conflict management tools designed to prevent disagreements from devolving into disputes and litigation. Using EDR has become common practice in many regions of the country and, as a result, numerous private, academic, and government agency providers offer EDR services.

The practice of EDR must continue to evolve, including through helping involved parties proactively and productively work through conflicts without the involvement of impartial third parties. Lawyers and others in the legal community have a valuable role to play in this shift, which will necessarily impact legal education and practice.

EDR: Past and Present

As with the field of alternative dispute resolution (ADR) more generally, EDR has its roots in labor mediation. Often cited as the first example of EDR, in 1973, labor mediators helped resolve a 15-year dispute over the proposal to build a dam for flood control on the Snoqualmie River. After identifying ten appropriate representatives for the major stakeholder interests (e.g., state agencies, environmental groups, farmers, residents), two mediators facilitated a problem-solving negotiation that resulted in a consensus plan to build a flood control and electricity-generating dam on a smaller fork of the river. The mediators’ success in helping stakeholders understand each other’s perspectives and cocreate solutions that met all stakeholders’ needs amounted to an “aha” difference in approach.

In the years since, as a common practice, impartial third-party mediators have helped resolve environmental and natural resource cases already in litigation. EDR practice has also expanded to include a range of more proactive conflict management and collaborative approaches for resolving disputes before they end up in litigation.

The federal government played a key role in EDR development. The Federal Advisory Committee Act (FACA), first enacted in 1972, set rules for balanced decision-making by the federal government. FACA resulted in the creation of committees consisting of representatives from all significant stakeholder interests. These committees were facilitated by impartial third parties and tasked with cocreating federal policy for a wide range of environmental and other issues.

The Negotiated Rulemaking Act of 1996 and the Administrative Dispute Resolution Act of 1996 (amended 1998) further institutionalized the use of ADR and collaborative processes in federal agency decision-making around environmental and other issues. Over time, substantive federal environmental statutes (e.g., CERCLA and the Marine Mammal Protection Act) also acknowledged the value of ADR and collaborative processes in addressing environmental issues. These statutes require consideration of all significant stakeholder perspectives and use of consensus decision-making processes.

Federal agencies addressing environmental and natural resource issues have been leaders in incorporating ADR and collaborative processes into their way of doing business. The Environmental Protection Agency and the Bureau of Land Management now have offices that champion and coordinate EDR work within the agency, and each agency maintains a roster of EDR practitioners. Thus, at the federal level, the fundamental framework for the use of EDR is firmly in place.

Over the last few decades, many state and local government decision-makers have also turned to EDR processes to address environmental disputes. Currently, EDR—in the form of mediators helping resolve legal battles over environmental disputes or diverse stakeholders engaging proactively in collaborative processes—has become a regularly used tool in many regions of the U.S., particularly in Washington and Oregon.

EDR processes are often confused with public participation processes, but the two are significantly different. Public participation refers to the broad engagement of an affected or concerned public. Public participation efforts include town hall meetings and notice and comment periods to solicit broad input from the public. Such processes, which some rulemaking and permitting processes mandate, can help government agencies (and, in some cases, corporations) solicit, receive, and review comments from the public. Decision-making after a public participation process rests with the entity seeking the public input.

In contrast, EDR processes engage involved parties—typically carefully selected representatives of all affected or directly concerned stakeholder groups—in working together to cocreate a mutually satisfactory resolution to an issue. In most cases, the decision-making in an EDR process rests with the participants.

Currently, EDR encompasses a wide range of ADR, collaborative, and conflict management processes. For instance, in our own work, we have participated in the mediation of a case in litigation about brownfields remediation. We have catalyzed, organized, and facilitated a multiyear consensus-building process involving government entities, ranchers, and environmental groups, resulting in a cocreated and co-implemented strategy for sustainable grazing on public lands. We have designed and facilitated collaborative public learning forums to help local public officials and community members work through conflict related to thorny environmental and community challenges. We have designed and facilitated work groups involving agency staff, regulated industries, environmental groups, and community representatives to cocreate regulations and agency policies which were approved without legal challenge. We have organized and facilitated community advisory groups surrounding government and corporate facilities. We have supported the collaborative governance efforts of watershed partnerships. We have also conducted innumerable situation assessments, using confidential interviews with individuals representing diverse stakeholder interests to assess a conflict’s readiness for collaborative resolution. EDR practitioners around the country use a similarly wide range of practices in their work.

Our experience with EDR efforts around the West and nationally has reinforced the promise of EDR. When EDR “best practices” are implemented, the processes have typically yielded durable, widely supported, and creative solutions that actually get implemented—without legal challenge. Additionally, parties’ relationships and their abilities to work together on other issues are typically improved, sometimes greatly.

To be set up for success, collaborative and ADR processes often require significant time and resources. But this investment is usually well worth it, especially when a process avoids drawn out political or legal battles, heals damaged relationships among entities who will need to work together on other public issues, and/or avoids solutions that are never fully implemented or are ineffective due to lack of broad support and buy-in.

That said, we also see a need for EDR practitioners to work even further “upstream” in conflict by helping all people develop skills for productively working through conflict with others by themselves, without the assistance of a third-party EDR professional, such as a facilitator or mediator. And that, we think, is the future of EDR.

The Future of EDR

We have long joked that the real meaning of EDR is “extra (effective) dialogue required.” The goal of EDR processes is to help involved parties find mutual gains solutions, whether before or after they have ended up in court. We facilitate this goal by providing space, structure, and support to assist parties in effectively communicating with each other.

Although we have seen great success with EDR processes, these efforts have often required more time and resources than would otherwise be necessary, simply because the involved participants were not particularly skillful in dealing with conflict. We have also seen successful mutual gains agreements fall apart because involved parties resorted to what we call “bad behavior” after the third-party EDR practitioner was no longer involved. Further, we have grown increasingly concerned about the amount of unproductive (and often quite destructive) conflict playing out in our country over the last few years, and we have seen the ramifications of this conflict in our work.

We therefore believe there is a need and an opportunity for the EDR field to focus not only on collaborative processes, but also on helping parties gain the skills required for successfully engaging in collaboration and conflict resolution.

In response to this need, we and the team at the Wallace Stegner Center Environmental Dispute Resolution Program, which Michele founded and Danya now directs, have shifted our focus away from simply facilitating and mediating EDR processes and toward more capacity building and skill building. A few years ago, we launched an annual intensive Collaboration Certificate Course that teaches high-level environment and natural resource professionals—including lawyers—collaborative problem-solving theory and practice. Once they graduate, these individuals become ambassadors for and instigators of EDR. The EDR Program also now offers tailored intensive trainings on conflict resolution, collaboration, and related skills for public officials, agencies, NGOs, private sector organizations, and anyone else working on environmental and public policy issues. Training large cohorts of individuals from the same organization in collaboration skills and conflict resolution can help these organizations create cultures where collaboration and effective conflict resolution are “just the way they do business.”

We also actively work to train the next generation of policymakers and leaders in conflict resolution and collaboration skills by offering graduate-level courses on environmental and public policy conflict resolution and conflict management for students studying law, planning, public policy and administration, and other public sector-oriented disciplines. Further, the EDR Program has launched a Collaborative Leadership Network to provide continuing education and ongoing support for the graduates of our trainings to help these individuals maintain their skills and effectively advocate for collaborative ways of working through environmental conflicts.

Additionally, whenever we facilitate or mediate EDR processes, we use the opportunity to train participants in basic conflict resolution and collaboration skills. In line with this, we have taken to calling ourselves “facili-trainers.” We also promote innovative ways of engaging involved parties in more creative and generative collaborative problem-solving around environmental issues.

For example, we are huge advocates of the “devising seminar” approach.^, Devising seminars are off-the-record, professionally facilitated, face-to-face problem-solving sessions that engage participants in their personal instead of their professional capacity. Rather than trying to reach agreement on solutions, participants are asked to generate “good ideas” that can win support from all key stakeholder groups. Devising seminars aim to create a space for constructive dialogue among a mix of stakeholders who otherwise would not have an opportunity to engage in face-to-face problem solving. They also aim to cultivate a space for freewheeling brainstorming and cocreation of innovative solutions, without the added pressure of reaching agreement.

Everyone affected by, concerned about, and involved in making decisions about environmental and natural resource issues should be part of the problem-solving enterprise. The fact that people do not see eye to eye about these issues is not the problem. On the contrary, conflict—the intersection of perspectives, ideas, wants, or needs in tension with each other and not easily reconciled—is a normal, healthy, unavoidable part of life. The goal is not to make conflict go away. It is to help people learn how to make conflict productive—and to avoid it devolving into destructive disputes.

What This Means for Lawyers and the Legal Community

Lawyers and the legal community have an important role to play in this endeavor. First, in our experience, lawyers involved in EDR processes may present a barrier to finding solutions, rather than providing help. Lawyers are often risk-averse, and they may see their sole role as advocating for their client’s positions—i.e., preconceived solutions. This may make them unduly adversarial. As a result, lawyers often get in the way of problem-solving conversations and stymie creative resolutions. Legal processes are often much the same.

Laws, regulations, and policy are the bumpers within which problem solving occurs. But laws, regulations, and policy cannot anticipate every possible conflict situation. Relying exclusively on litigation as a dispute-resolution tool similarly limits the scope of possible resolution to the solutions legislators and policymakers anticipated. In contrast, by exploring stakeholders’ interests and needs before focusing on potential solutions, EDR processes help solve problems. And in helping solve problems, EDR gives lawyers more tools to achieve durable, positive outcomes for their clients that are also within the law.

Mediators in environmental and natural resource disputes are usually lawyers, and facilitators of EDR collaborative processes may be lawyers, but do not have to be (and often aren’t). But practicing lawyers should be familiar with how EDR works, even if they are not actively involved participants or impartial third parties, so they can support clients involved in EDR processes. When their clients are stakeholders in EDR processes, lawyers should review any consensus recommendations under consideration to ensure they are legally binding, will survive legal challenge, and will create ongoing working relationships that prevent future conflicts from turning into disputes. Further, lawyers often provide counsel or coaching to clients involved in stressful situations. If they understand conflict dynamics and provide behind-the-scenes support during EDR processes, they can help their clients reach the most effective result.

Thus, we see a need to expand legal training—both in law school and through continuing education—to improve conflict competency skills and expand the understanding of all the tools available to resolve disputes and to prevent conflicts from becoming disputes. In our law school courses in conflict management and environmental conflict resolution, students marveled that the course was the only time during law school that they heard about nonlitigation methods of resolving disputes. And these were the only courses in which they learned about conflict management principles and interest-based negotiation skills. It is telling that some law students who took these courses said the course totally shifted their career aspirations. Often, what we teach in these courses seems contrary to traditional legal training, but it should be complementary to, or fundamental to, legal training.

Conclusion

The EDR field has grown over the past 50 years to encompass a variety of processes that help stakeholders address the real issues of mutual concern. These processes also create solutions that both “stick” and promote successful future interactions between stakeholders with conflicting interests. The missing piece, as we see it, is a full complement of “conflict competent” participants in those EDR processes, both clients and lawyers. To create conflict competent participants, training in conflict competency and collaborative problem-solving skills should be offered across the professional landscape: to law students, practicing lawyers, policy makers, and all environmental professionals. Further, to build conflict competency, we must cocreate structures and systems, including governance and legal systems, that make it easier for people and organizations to work through conflict productively.