Unitrd States
       Environmental Protection
       Agency


       Sohd Waste
Office of Solid Waste
ind Emergency Response
Washington, DC 20460
July 1982
SW 944
c/EPA  Using Mediation
       When Siting
       Hazardous Waste
       Management Facilities

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          OTHER EPA HANDBOOKS IN  THIS  SERIES

Using Compensation and Incentives When Siting Hazardous Waste Management
Facilities—A Handbook
  Discusses the concept of providing compensation or incentives to communi-
  ties for  accepting a hazardous  waste management  facility  in their area.
  Describes various techniques, ways to form binding agreements, and many
  cases where  compensation or incentives have been used successfully
Consulting with the Public When Siting Hazardous Waste Management Facilities—
A Handbook
  Discusses techniques to help developers and State agencies communicate
  more effectively with the public

Identifying Potential New Sites for Hazardous Waste Management Facilities—A
Handbook
  Discusses criteria and procedures that can be used to narrow the universe of
  possible facility locations to those with the most potential for withstanding inten
  sive environmental review
  This handbook was  prepared  by the Wisconsin Center for Public  Policy,
Madison, Wisconsin, and  the  Institute  for Environmental Mediation, Seattle,
Washington, under grant number T-901253010
  Publication does not signify that the contents necessarily reflect the views of
the U S  Environmental Protection Agency; nor does mention of commercial
products constitute endorsement by the U S. Government. Errors and omissions
are the sole responsibility of the authors.
  Questions concerning this handbook should be addressed to Curtis Haymore,
U S EPA 401 M Street, SW., Office of Solid Waste (WH-562), Washington, D.C.
20460

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Using  Mediation
When Siting
Hazardous Waste
Management Facilities
A Handbook
  This handbook (SW-944) was prepared by
 Howard S. Bellman, Cynthia Sampson, and
Gerald W. Cormick for the Office of Solid Waste
                    T i • ,/; Agency
U. S. ENVIRONMENTAL PROTECTION AGENCY
             1982

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Envi!
)H  Agsncy
          1>\ the Superintendent ol Dot uincnts, II.S (Joverninent Printing Office
                          Wa^hintcton, DC 20402

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Contents
Summary	    1
Introduction   	     2
Why Mediation?	   8
When Is Mediation Right?	12
Who Comes to the Table?   	   15
How Does the Mediator Operate?	  19
How Are Agreements Implemented?	24
Is Mediation Right tor You?	   27
What Should You Look for in a Mediator?   	    29
Appendix A: Public Consultation and Dispute
           Resolution Processes   ...     .   .      .  .    32
Appendix B: Groups and Individuals Involved in
           Environmental Conflict Resolution  	  35
                           HI

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Summary
  Mediation has been  successful in  resolving  a wide variety of  environmental
disputes in recent years Although developed primarily as a technique for resolving
labor disputes, mediation offers a constructive method by which a prospective
operator of a hazardous waste management facility and other concerned parties
can identify acceptable terms,  in addition to those required by governmental
regulations, for the siting, design, and operation of the facility
  Mediation is a  negotiation process conducted by an impartial and independent
mediator or  "third party." Through mediation, parties to a dispute meet face to
face to explore the facts, issues, and various viewpoints in the dispute and seek to
settle their differences through bargaining and  exploring  alternative solutions. If
mediation is successful, the parties jointly develop a compromise agreement, a
package of specified terms that each party can endorse.
  Through  the use of a  hypothetical  case study based on a  composite of
successfully mediated  disputes over the siting and  operation of  solid waste
landfills, this handbook illustrates the  prerequisites for effective negotiations, the
appropriate timing for mediation, how parties become involved in the process, how
the mediator operates,  the dynamics of power in  mediation, how to  ensure
implementation of the agreement, and how to select a mediator. This book gives
particular emphasis to how each of these factors might relate to a dispute over the
siting and design  of a proposed hazardous waste management facility.
  Appendices distinguish mediation from other conflict resolution processes and
list groups and individuals involved in environmental conflict resolution.

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Introduction
  This is a handbook for people involved in an environmental conflict who are
considering mediation It explains the environmental mediation process and helps
parties identify when mediation might be suitable  It is not a training manual on
how to negotiate, though some insights can be gained, nor is it a guidebook on
how to be a better mediator.
  Specifically, this handbook is for parties to disputes over the siting of hazardous
waste management facilities. To the  authors' knowledge, no  hazardous waste
facility siting dispute has yet been mediated  Indeed, many of these disputes may
include elements that are not amenable to mediation Nevertheless, mediation is a
possible approach to settling such  disputes,  and those parties who are directly
affected  should  understand the mediation  process, its application  in  similar
circumstances, and its potentials and limitations
  Contrary to what might be expected, it is not the  emotional nature of many
hazardous waste siting disputes that challenges the application of the process, for
mediation has succeeded in many highly charged conflicts in  labor relations,
prisons, racial disturbances, and  international affairs,  as well as in other types of
environmental disputes.  Rather,  it is that some parties may find the objective of
mediation—compromise—absolutely unacceptable when  it may place a hazard-
ous waste facility m their community Mediation will not work when one or more of
the parties adopts an uncompromising stance, and the dispute will be concluded,
instead, in  an adjudicatory  or political forum. Mediation  cannot  overcome truly
rigid positions, whether based on subjective,  emotional grounds or beliefs about
technical matters such as the safety of particular technologies, both of which are
common in hazardous waste disputes.
  Other characteristics typical of hazardous waste disputes are  that there are
complex and highly technical issues,  government plays a strong  regulatory role,
there  are many concerned  parties,  and site-specific considerations and political
dynamics are very important  While making resolution by any method difficult, even
these  complexities are within the capability of mediation to accommodate  In fact,
the essential nature  of mediation may  make it  better suited to  deal  with such
factors than adjudicator/ processes because mediation enhances the exchange of
information, addresses people's real concerns rather than  only the issues that can
be litigated, and involves the people  who have the power to make or overturn
decisions
  Mediation is a negotiation  process conducted with the assistance of an impartial
and independent mediator, a "third party" who has no established or continuing
relationship  with the parties to the dispute  It  brings people together  to seek
resolution of their differences through bargaining and  joint  problem  solving.
Participation in mediation has traditionally been voluntary, although some States

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are experimenting with requiring mediation in certain types of labor disputes It is
possible that some States will include similar mandates in hazardous waste facility
siting laws Massachusetts now requires negotiations in its siting process, although
the law does not specify mediated negotiations
  Whether  mediation  is voluntary  or  required by legislation, settlement of the
dispute can  never be required of the  parties By definition, a "settlement" is a
compromise that parties jointly develop and voluntarily enter  If they fail to reach
settlement through mediation,  decisionmaking will  revert to the  appropriate
adjudicator/ body, such as a court, agency, or, in hazardous waste disputes in
some States, a State siting board. The mediator never issues a judgment or ruling.
  Through  negotiations and the aid of a mediator,  parties to hazardous waste
siting disputes  may find a variety of avenues for  reconciling the expected and
perceived negative effects of a proposed facility on its neighbors with society's
need for the facility Many State hazardous waste control laws create a framework
for  negotiations by a  prospective facility  operator with local parties and/or the
State government  In  effect, they are to strike a bargain Elements of that bargain
may be measures to alleviate, or  mitigate, adverse effects of the facility on the
community, to compensate the community for impacts that  are not alleviated, or to
provide incentives or benefits to the community for accepting the facility.
  Some States  have already adopted, and others are considering, legislation that
incorporates

•   flexibility to localities to require,  request,  or  negotiate  agreements and to
    developers to approach local governments;
•   establishment of a specified process through which developers negotiate with
    communities;
•   specific compensation rates required by the State (such as fixed per-ton or per-
    volume fees to be paid the community by the operator) with no allowance  for
    local negotiations,
•   provisions for  compensation or incentives to the  community  by the State
    instead of by the operator
   In each situation, except where  the exact form  of compensation is defined by
law, negotiations will occur  to  define  the  mitigation,  compensation,  and/or
incentive measures to be undertaken Any point at which negotiations occur is also
a  point at  which  mediation may have a place, for  mediation simply adds the
assistance  of an  impartial person  who applies the skills  of a conflict resolution
specialist in facilitating and conducting the negotiations.
   However, one  caution is  in order  While  there are many variables in overall
project design that can be negotiated, the engineering standards on which permits
are granted cannot  be negotiated  to  be more lenient  than the  standards
established  by government  It is possible that additional safety precautions or
environmental  protection measures can be part of an agreement, but the basic
engineering and safety standards must be determined by  regulation and ensured
through the permitting process  Indeed, such regulatory standards merely provide
a base below which a negotiated settlement cannot fall, in  much the same manner
as  minimum wage rate laws provide a floor below which  labor-management
agreements cannot go  For that reason, the permitting agency is unlikely to be a
party to  negotiations, though  it might be on hand to act as a  resource and to
respond  to the technical elements of any proposals. And it might be willing to

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    ENVIRONMENTAL MEDIATION  SUCCESS: "SPIRIT OF
                        PORTAGE ISLAND"

  A major northwest tribe and the surrounding county had reached an impasse
over the future use of a pristine island, one of several issues that divided them The
is/and, which the county had acquired in the late 1960s from a number of individual
landholders for use as a park, is completely surrounded by the reservation and
tribal tidelands  While the  tribe had originally supported this use, a series  of
misunderstandings had  led to the tribe's  withdrawing access rights,  effectively
blocking public use of the land The tribe wished to reacquire the island that they
regarded as an historic part of their reservation
  The county had protested,  but when two steps  in the administrative appeals
process upheld  the tribe, the issue landed on the desk of the Secretary of the
Interior for "final"  adjudication  A/I concerned recognized  that,  whatever the
Secretary's decision, the  losing  party would appeal to the Federal courts,
beginning another long series of costly and divisive battles
  After 7 months of preparation and negotiations, mediators from the Institute for
Environmental Mediation in Seattle assisted the tribe and county in reaching an
agreement Under the pact that was signed in April  1979, the tribe would reacquire
the  island but dedicate it for use as a public park  The purchase price recognized
appreciation  in value of the property and could be used for an additional park
elsewhere in the county  The agreement provided 18 months for the tribe  to
accumulate the necessary funds to effect the actual transfer
  In late 1980, following  a series of cooperative efforts to raise funds and to assure
the  continued availability of State  and Federal development money that had been
originally committed to the  county park plan,  the agreement was consummated
During  the ceremonies  marking the  official transaction,  the tribal chairman
remarked that the county and tribe could resolve their remaining differences "in the
spirit of Portage Island ''
   ENVIRONMENTAL MEDIATION SUCCESS: IDAHO LAKE
                     AND SEWER EXPANSION

  An Idaho dispute involved the expansion of an existing sewer to accommodate
development around a large lake, while assuring the lake's continued integrity as a
public water source Existing homeowners were concerned about rapid condomin-
ium  development and other growth around the lake  When  they sought formal
representation on city and county agencies for their views concerning  planning,
zoning, and sewer design and hookup policies, it was denied The problem was
complicated by the existence of overlapping governmental and utility jurisdictions
  The specific issue that brought the conflict between the Homeowners Associa-
tion  and the US  Environmental Protection Agency  to  a head related to the
adequacy of an environmental impact assessment and of  sewer construction
engineering Through litigation  the Homeowners were able  to stalemate sewer
construction and raise doubt regarding the future of a $5 million EPA grant  With
court dates and construction deadlines rapidly approaching, the parties faced real
uncertainties, yet they all shared a mutual concern for protecting the water quality
of the lake on which they all depended
  In mid-March  1980, mediators  from the Institute for Environmental  Mediation

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were contacted and made an initial trip to meet with the parties There followed an
intensive period of telephone discussions with the parties, and negotiations were
scheduled for mid-May—immediately preceding  the impending court date   The
week began with more meetings between the mediators and individual parties As
a result of that groundwork, a tentative agreement was reached during the first day
of formal negotiations Following further clarifications and ratification by the parties,
the formal agreement was signed in July 1980 The agreement specified policies
for limiting and allocating sewer connections and created a new  planning  and
zoning body in which all parties would have proportional representation
     ENVIRONMENTAL  MEDIATION  SUCCESS: PORT OF
                               EVERETT

  By late 1976, the Port of Everett, Washington,  had stalled in its efforts to develop
and expand facilities in a major estuary  Conservation and recreation interest
groups had used permitting processes and litigation since the early '70s to disrupt
implementation of the port's long-range plans In addition, Federal fish and wildlife
agencies had prevented a major development by the port for 2 years As a result of
opposition from the citizens' coalition and Federal agencies, the port found itself
unable to grow And while the opponents were not totally opposed to development,
they were cast in the role of constantly frustrating economic growth and faced the
prospect of continuing rounds of confrontation and litigation
  In January 1977, the Port Commission  turned to  the Office of Environmental
Mediation in Seattle (now the Institute for Environmental Mediation) for assistance,
and two mediators were assigned to the case A panel of ten citizens representing
industrial, commercial, labor, environmental, and recreation interests met over a 9-
month  period,  with technical assistance provided by Federal, State, and local
agencies involved in the issues  They negotiated a  series of recommendations
covering the location, timing, and nature of port  development, public access to the
waterfront, wetlands preservation, recreational development, and public participa-
tion in project design
  In a special meeting in late October 1977, the  Port Commission formally adopted
these  recommendations as the official comprehensive plan for port development
Relevant agencies also  recognized the plan as  the basis for future permitting
decisions

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incorporate portions of the agreement into the permit if that is requested by all the
parties
              CONFLICT  IS THE  BASIS FOR  CHANGE

  A widespread  misunderstanding of the role of conflict in our society makes it
difficult for many people to understand or adequately consider methods for settling
conflict. We  tend  to  see conflict  as an  aberration,  a  blemish on  our social
complexion  On  the contrary, conflict, confrontation, and the public  awareness
they bring develop the issues, mobilize  constituencies, and develop leadership.
Conflict is the very basis for social change in a democratic society. Environmental
mediation must not, therefore, be perceived as a mechanism for the avoidance of
conflict  Rather, mediation can serve  both to legitimize conflict and to  provide an
arena within  which shifting social  priorities and power  centers can  interact to
ensure that the social fabric may yield to and reflect social changes rather than
resist and be torn apart
  In most  situations, conflict produces some form  of compromise, another
maligned concept in  our society.  Yet  any agreement that resolves  a dispute,
except an agreement for total and unconditional surrender, is a compromise. Saul
Almsky discussed conflict and compromise in terms of their value to community
organizers and local citizen organizations

    Compromise is another word that carries shades of weakness, vacillation,
  betrayal of ideals, surrender of moral principles ..   .
    A free and open society is an ongoing conflict, interrupted periodically by
  compromises which then become  the start for the continuation of  conflict,
  compromise, and ad mfinitum. A society devoid of compromise is totalitarian.
  If I  had to define a free and open  society in one  word, the word would be
  "compromise "'

  Environmental mediation is a method  for constructively channeling conflict into
compromise.  Mediation  relieves the need for a party to discredit  and defeat its
adversaries as it must do in the courtroom. Instead, it brings the differing interests
and experts together face to face to collaborate on designing a solution. Its rules
are the ethics of  good  faith  bargaining  Its by-products tend to be a better
understanding by all the parties of each other's concerns and a clearer definition
of the issues  It is a highly flexible process and conducive to innovation.
  Nonetheless, for various  reasons that will  become  clear  in  the following
chapters, mediation cannot settle every  hazardous waste siting dispute. It is but
one of numerous approaches available for handling  disputes, some of which do
not allow compromise.  Whether environmental mediation  is appropriate to a
particular dispute is ultimately a decision to be made by the people involved after
consultation with a mediator. The process itself has  no apparent or legislated
authority The mediator is empowered by the felt needs of the parties to settle their
  1Saul  D  Almsky, Rules for  Radicals  (New York  Random  House,  1971),  p 59

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dispute on mutually agreeable terms. If there is an analogy, it is to the civilian who
voluntarily directs traffic at the scene of an accident:

  When there is no apparent focal point for agreement. . .  (the mediator) can
  create one by his power to make a dramatic suggestion. The bystander who
  jumps into an intersection and begins to direct traffic at an impromptu traffic
  jam is conceded the power to discriminate among cars by being able to offer
  a sufficient increase in efficiency to benefit even the cars  most discriminated
  against- his directions have only the power of suggestion, but coordination
  requires the common acceptance of some source of suggestion.2
    MEDIATION WORKS IN SITING SANITARY  LANDFILLS

   Because a  hazardous waste  siting  dispute has not  yet been settled using
 mediation, this  handbook  relies  on a  hypothetical  composite of successfully
 mediated disputes over the siting and operation of sanitary landfills. Mediators from
 the Wisconsin Center for Public Policy achieved these settlements in 1978-80. The
 details  in  this  handbook  have  been  selected to  protect the  confidentiality
 necessary to any mediation and to respect the integrity of the individuals.
   Although this handbook offers some suggestions, you must relate the discussion
 of environmental mediation  in it  to a particular  hazardous waste siting dispute
 in which you may be involved to judge the appropriateness of its use in that  dis-
 pute  Look beyond the surface details of this case study, however, for they will
 always be unique to a particular dispute, regardless of its magnitude, complexity,
 or intensity. Instead, compare the conflict dynamics of the hazardous waste siting
 dispute to the one presented here, for  it  is in  process,  not content,  that the
 mediator operates.  People in conflict behave much the same way in any type of
 dispute, and it is the purpose of  mediation to  harness conflict behavior,  together
 with the collective  expertise of the parties, into constructive relationships  and
 workable solutions
  2ThomasC. Schelling, The Strategy of Conflict (Cambridge, MA- Harvard University Press,
 1960), p 144

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Why  Mediation?
  A City is seriously in need of a site for a new solid waste landfill. Its existing site is
under closure orders from the State Department of Natural Resources  (DNR)
because it has reached capacity and is threatening to pollute ground water and a
nearby trout stream  The City's preferred location is outside its boundary, and it
annexes  150 acres  in the adjacent Town (township)  and proceeds with site
development and permitting procedures A manufacturing company in the City
vigorously supports this decision because it will be a principal user of the  landfill
and  will profit from  its proximity. The company is  joined by the  union of  its
employees and other members of the City's economic community in lobbying for
this site
  Unwilling to be the neighbors of the new "dump," certain residents of the Town,
already resentful of the City's encroachments, wage  an  active campaign against
the City's site  Eventually they succeed in winning the support of Town officials.
These  officials first use informal political  means to  try  to pressure the City  to
reconsider its decision However,  the  Town virtually stands alone  when nearby
towns,  fearing they might be considered as alternative  sites, offer only nominal
support
  The  Town government resolves to take all available  legal means to stop the
project  It files an appeal to DNR and a series of court  appeals  challenging the
annexation and the environmental impact assessment for  the landfill.  It also passes
an ordinance limiting the use of town roads needed for access to the site.
  Just as landfill construction is getting under way, the Town succeeds in winning
a 3-day restraining order to halt development.  The judge indicates he might give
favorable consideration to an  injunction  Meanwhile, another court denies the
City's effort to invalidate the Town's road ordinance
  After 2 years of antagonism between  these  neighboring jurisdictions,  they
decide to try mediation At the  end of several months of on-and-off negotiations,
the  City,  Town,  and  DNR reach an agreement  that contains  the following
provisions, primarily measures to lessen the impact of the landfill on its neighbors:

•  The City agrees to specified hours for construction at  the site and for operation
   of the landfill, when completed, in order to minimize nighttime  disturbances.
•  The City agrees to limit the number of years the landfill will be in operation and
   return  the 150 acres  to the Town after the landfill is closed  and the area is
   reclaimed
•  The City agrees  to construct a  transfer station  within  its original municipal
   boundaries so waste can be compacted and truck traffic to the  landfill will  be
   reduced.
•  The City agrees to  ban a/I private vehicular use of the site once the transfer
   station is completed and to discourage traffic prior to that time.

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•  The City agrees to provide a DNR-approved dumping box at a location in the
   Town for use by Town residents, so they will not have to travel to the City's
   transfer station
•  The Town and City agree that the City can use the Town's existing landfill for
   certain purposes  until the  City's landfill is  completed in exchange for  an
   equivalent amount of disposal in the City's new landfill later by the Town
•  The parties create an advisory committee of one member representing each
   party to monitor implementation of the agreement on a continuing basis It will
   select a mutually acceptable, impartial chairperson and will be free to call on
   the mediators again should further assistance be needed
•  The agreement is subject to modification only upon mutual written consent of
   all three parties
•  The Town and City agree to draft, with DNR assistance, companion ordinances
   for their  respective municipalities that will enact  the  provisions  of  the
   settlements
•  The  Town and City agree  to withdraw all  petitions, motions,  applications,
   complaints, and similar pleadings and documents filed in  DNR administrative
   proceedings and the courts
•  The agreement is  issued as a Consent Order by the Department of Natural
   Resources and a Stipulation in the pending court cases.


                             DISCUSSION

  The provisions  of  this  agreement  provide a ready  contrast between what
mediation offers disputants and what is offered by such adjudicatory processes as
"petitions,  motions, applications,  complaints, and similar pleadings " While  the
latter legal actions employed and protested all manner of legal technicalities in the
disposition of the dispute, they were not based on the problems that brought  the
parties into conflict The mediated agreement, on the other hand, responds to the
real  concerns of people who are faced with living near a landfill Local residents
opposed the landfill because they feared litter, odor, pests, traffic congestion, and
other disturbances, not out of a  concern for proper annexation procedures or
adequate reporting of  environmental impacts, the issues in litigation. The City was
concerned about its citizens' needs for a disposal facility, not the powers of towns
to limit road  usage  In this  respect, this case  is typical of a great many
environmental disputes that are litigated and decided on  much narrower grounds
than the underlying environmental, economic, and political concerns that separate
the parties
  Through legal actions the Town sought to defeat this landfill site altogether and
to force it to some other  location In the settlement, the Town yielded on  that
ultimate goal, but it gained a voice in the design and operation of the project that it
had previously lacked
  Litigation might eventually have  produced a winner and a loser, but probably at
a greater cost of time and money to both sides. If the Town had lost, it might have
had  to accept the landfill plan  as originally conceived,  without any modifications
that  would make the facility more tolerable to its neighbors If the City had lost, it
would have had to begin the siting and site development process anew with all  the
attendant costs and environmental pollution resulting from continued use of the old
landfill Mediation  avoided the riskiness of litigation and expedited  a compromise in

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which each party made some gains and some concessions And, typical of most
negotiated  settlements, the compromise was actually  a series of agreements
combined in a way not previously foreseen by any of the parties. The participants
had not even discussed one provision, the building of a transfer station, prior to
negotiations.
  The community accepted the development, but the developer incurred some
additional costs to make the project more palatable to the community Neither side
was totally  satisfied with the outcome, but  the  fact that the  parties  voluntarily
entered into the agreement signified its acceptability in their eyes. The uncertainty
and costs of further protracted litigation were removed, a benefit to all of the
parties.
  In this hypothetical case study, the litigation did  not involve the issues of most
concern to the parties In some hazardous waste siting cases, however, the parties
are truly opposed to a facility because they believe it threatens the environment or
violates the law, perhaps the actual  issues in  litigation.  But resistance also may
arise more  from a fear of lowered property values or loss of the community's
aesthetic qualities and character, effects difficult  to prove or not actionable in
court. In the give and take of negotiations, opponents can balance those perceived
effects with the dangers of "midnight dumpers" and the economic consequences
of not having a facility. They can discuss more fully how the local economy stands
to benefit from a facility, the possibilities to lessen  health risks and  ground-water
contamination by engineering techniques  and careful handling of the materials
accepted at the facility, and the hazards that  continued  use of existing  facilities
presents.
  The critical elements of the mediation process illustrated in the hypothetical case
study are as follows.

•  The  parties cannot be  required to negotiate or  agree  to any particular
   settlement of their differences. Indeed, unless they are willing to enter into the
   process with some intent to  reach an accommodation of their differences, the
   mediation effort is likely to be unproductive.
•  Mediation is an adjunct to the negotiation process, and there will be a joint or
   face-to-face exploration of the issues.
•  The  mediator  supports and facilitates the  negotiation process by improving
   communications,  serving as an  interpreter, arranging meetings, suggesting
   alternatives, helping to draft language, and assisting in maintaining communi-
   cation with those not at the table. In labor-management disputes, the mediator
   typically  enters a  dispute  to revive  lagging  or severed negotiations. In
   environmental disputes,  however, the mediator usually serves primarily to
   establish a negotiation relationship
•  Any agreement reached is  the creature  of the parties and must be  deemed
   workable  and  acceptable   by them  The  mediator  is not a  party to the
   agreement

  Mediation is not the only method used by  third parties  to assist individuals and
organizations in resolving environmental conflicts. The other techniques, such as
conflict assessment,  conflict anticipation, facilitation, and conciliation, ordinarily
occur earlier in the  development of a dispute than is  appropriate for  initiating
mediation (See Appendix A for discussion of these techniques in greater depth.)
They do not require the degree of definition  of issues, identification of parties, or
                                    10

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realization of pressures that are necessary for the negotiations that take place in
mediation  Rather,  they  often  lead  to  a clearer  definition of issues  and the
emergence  of  new participants  by encouraging participation,  eliciting and
transmitting  information, and providing a basis for developing viewpoints. Indeed,
these methods enable people to share their data and views in ways that result in
avoiding conflicts
  It may happen, however, that although these processes can help to narrow the
issues and avoid conflicts by making each person's point of view clearer, setting
up better working relationships, and correcting factual discrepancies, they will still
not achieve a complete settlement.  Indeed, such clarification may actually serve to
convince  the parties of  their  basic differences  That does not suggest the
processes  are   inadequate These  processes, in various  combinations and
sequences, can be complementary  rather than competitive or exclusive.
                                    11

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When  Is  Mediation  Right?
  Each of the principal parties has an urgent need to end the dispute. The City has
invested 2 years in studying various sites and developing this particular one. It
faces a major setback if, through litigation, the Town succeeds in having this site
rejected The weather is also a factor. It is the end of summer, and the City planned
to complete construction by winter.  Thus the ability to delay the project gives the
Town leverage in negotiations with the City.
  Urgency  from  the  Town's  standpoint comes mainly  from  the costs and
uncertainties  of further litigation   It has already spent  more than  originally
appropriated to fight the landfill While the Town has succeeded in delaying the
project,  it has no assurance of eventual victory. Although the Town wants to
prevent  the landfill from being built at this site,  it recognizes that the bargaining
power it gains through delaying tactics will disappear if it eventually loses in court.
Furthermore, some Town officials who have vocally opposed the site are beginning
to anticipate the need to change their position, as Town residents living far from
the site start to criticize the amount of money being spent on litigation.
  Another party to the dispute  is Environmentalists in the Public Interest (EPI), a
Statewide citizen organization dedicated  to acting as a  watchdog of the DNR's
regulatory activities.  EPI believes the DNR may have violated the State Environ-
mental Policy Act in its handling of this case and is contesting the adequacy of the
agency's review of alternative sites and the required documentation of that review.
Although EPI has joined the Town in petitioning the Circuit Court for an order to
have DNR amend its documentation, the group has been reluctant to commit its
limited resources to a full-scale legal battle. It does not have reason to believe the
landfill itself will cause environmental harm, and it is aware of the harm threatened
by the continued use of the old facility
  The DNR, too,  is  anxious to  have the dispute resolved, both because of the
pollution threatened by the City's overloaded existing landfill and  because DNR
procedures and decisions are the subject of legal challenges by the Town and EPI.

                              DISCUSSION

  Conditions were right for mediation. After 2 years of controversy, the key issues
were well defined and the parties at  interest were known. Furthermore, each party
had some leverage in the dispute, the City had strong support from the community
to continue and had the resources it needed to press its case; the Town had a
temporary restraining  order  stopping construction of the landfill  and therefore
might be able to delay the project past the end of the construction season; and the
DNR  had  the  licensing authority. Each  party also   had  well-identified and
reasonably loyal support in the  negotiations from its constituency Each party had
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a clear interest in getting the matter over with, especially since EPI and the Town
had increased the pressure by their attempts to impose legal sanctions on the DNR
and the City.  Most important, each was  willing to relinquish  uncertain litigated
victory in favor of certain, specified, negotiated gams.
  The  hypothetical case study demonstrates the conditions  that,  if met, help
mediation work-

•  All parties  must recognize  the necessity  of other parties' participating in the
   decisionmaking  process  This  is  more  than  the  "right  to  be  heard"  or
   "maximum feasible  citizen  participation" espoused in public  participation
   models. In any dispute where negotiations  occur, some level of recognition has
   been achieved among the  parties—an understanding that  whatever one's
   preference, it is necessary to work together to find some mutually acceptable
   solution to the issues in conflict
•  Each of the parties involved must have some power in the dispute. This means
   power or influence sufficient to exercise some sanction over the ability of other
   parties to take unilateral action. Successful negotiations are not the result of
   chanty or of "doing what's right." They are the product of necessity.
     The power of those challenging a facility may be based on threats of court
   and administrative  challenges, unfavorable public  notice,  direct economic
   action  such as a  boycott, or some  political action  such  as an  initiative
   campaign. The power of a party proposing a facility might be based on some
   combination of legislation, regulation, and tradition. However,  unless there is
   sufficient credible power on all sides, it is unlikely that  the powerful party will
   consider any negotiation on the issues
•  The participants must be able to commit themselves and their constituencies to
   the implementation and support  of any  agreement reached This, in  turn,
   requires that interest groups have had time and opportunity to mobilize support
   and workable constituencies for their positions and to build some organization
   and structure  On  one hand, this mobilization  provides power for groups in
   formative stages of organization. On  the other  hand,  identifiable, cohesive
   constituencies with secure leadership mean that their representatives are not
   only able to negotiate and reach  agreements  but  also to make meaningful
   commitments to support and abide by those agreements.
•  There must be some sense of urgency all around. If any party can achieve its
   objective by delay or by waiting out the opposition, meaningful negotiations will
   not occur The negotiations process will become a sham and another strategy
   for delay This sense of urgency is not likely to be present  until the opposing
   parties have  had  some chance  to confront  one  another and  the  issues.
   Negotiations, therefore, are not a tool  for avoiding conflict, but for settling it.
•  The outcome,  without mediation, must be uncertain. Bargaining power is not
   stable,  it is transient. When a litigant is  confident of  success in court, the
   opposing party is not likely to achieve much of  a  settlement. However, before
   the result is predictable, both  parties can derive  power  from  the mystery
   surrounding the question of which side is going to win Once the mystery is
   dispelled, one  of the disputants  becomes relatively  powerful.  There is great
   reason for negotiating for the party for whom a loss is predictable, but there is
   little reason for its adversary to  compromise when  it  can  foresee complete
   success. Thus, while the outcome is  still  problematical and the parties are
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   motivated to  compromise rather than risk  losing, it  makes sense to  initiate
   mediation to expedite settlement For this reason, mediation is sometimes less
   an alternative to litigation than a creature of litigation, although it can be an
   alternative to the ultimate adjudication of the  issues.

  It is sometimes  said that mediation becomes appropriate when the dispute
appears deadlocked or at an impasse. In fact,  it handicaps mediation to wait for
final position-taking  Mediation  is a technique for  supporting and assisting the
parties when they  are still in a position to compromise  It is better, therefore,  to
begin negotiations before the parties feel they  have reached their final positions.
Once they have arrived at their final positions, the mediator is faced with having to
persuade them to become more flexible, to back off a bit. Indeed, it may be true
that parties can  no longer compromise,  that they have exhausted their ability  to
change their positions, and they must retain the rigid postures until the issue is
resolved. If this point is reached before a mediator is called, it is unfortunate and
wastes the potential contribution of mediation.
  Mediated negotiations in hazardous waste facility siting need not occur only in
the context  of litigation There  are opportunities for  exchanging and accepting
proposals during preliminary planning and site-selection stages. But it is frequently
the urgency and fear of losing caused by litigation  that generate an objective
examination  by  each party of  its position  and  therefore  a  willingness  to
compromise  The statutory and regulatory schemes that govern hazardous waste
management tend to be lengthy and complicated. There may be more boards and
agencies to  satisfy and more stringent tests to  pass than in  other types of facility
sitings This undoubtedly reflects the inherent dangers of error and the politics of
making decisions on such emotional issues.
  It is difficult to generalize about the effect on negotiations of these more complex
procedures. Perhaps there will be so many opportunities  for delay and such high
costs that they will overwhelmingly favor the parties that can afford to wait while
the labyrinths are explored The many opportunities for  the parties to argue the
merits of their positions may serve to heighten the emotional factors that make
settlement  difficult, or  they may  make positions  clearer  and  increase the
opportunities for  compromise
  Some States allow a local veto while other States can preempt local actions. In
either situation, one party may be far too sure of success to consider compromis-
ing.  But  there will surely be some  times and places when the confluence  of
identifiable issues, parties, and  the undesirable effects of inaction in hazardous
waste siting disputes  will provide settings conducive to  compromise and settle-
ment
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Who  Comes  to  the  Table?
  The parties learn about mediation almost by chance. Two mediators from a new
environmental mediation facility attend  a meeting of Department of Natural
Resources (DNR) attorneys to acquaint them with the new service that is available.
The same day the attorneys discuss how to proceed in the landfill case. The
attorney in charge of this case decides to  involve the mediators on the spot.
  Many phone calls and meetings follow. In addition to the principal parties—the
City, Town,  Environmentalists in the Public  Interest  (EPI), and the DNR—
numerous other parties have had some role or have taken positions in the dispute
and must be consulted
  The County is caught between two of its jurisdictions in a number of ways. It has
zoning authority over the site in question, it owns one of the other sites EPI wants
to have considered; and it is under pressure from the Town to develop a County-
wide landfill The County has not yet sided with either the City or the Town, but it is
currently debating action on the rezoning.
  The mediators visit the Chamber of Commerce and the company and union that
have lobbied for the disputed site  The mediators explain their techniques,
experience, and funding sources. They find that, although these organizations are
vitally interested in the landfill and are in a position to influence the City's position,
they believe they will be  well represented by City officials in the negotiations and
therefore do not feel a need to participate as negotiators.
  Three local citizen groups are opposing the landfill for environmental reasons. A
lake rehabilitation group composed of local landowners and a fishing club are both
concerned about the landfill's potential effect on water quality, and an environmen-
tal group advocates  recycling rather than building a new landfill. The mediators
have discussions  with each of these parties to  ascertain their views and discover
what they might find acceptable in a settlement. It becomes clear to the mediators
and the groups that, for the most part,  the groups' concerns for  environmental
quality are represented by EPI
  The mediators decide to try first to resolve EPI's dispute with the DNR, because
EPI's concerns may be resolved without actually building  the facility. In two
mediation sessions, EPI, the City, and the DNR review the DNR's evaluation of
alternative sites, discuss two additional sites EPI thinks should be considered, and
identify additional actions the City and the DNR can take to  satisfy EPI that the
State Environmental  Policy Act requirements  have been met.  They reach an
agreement requiring the City to take soil borings at an additional site and the DNR
to provide  additional  information in  its documentation.  EPI  agrees that,  upon
completion of these actions, it will support rezoning of the site by the County.
  Next, the mediators meet with Town representatives to apprise them of the DNR-
EPI-City agreement  Shortly afterward,  the  Town requests  that  the mediators
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facilitate direct contact between the Town and City. One meeting is held at which
information is exchanged and the discussion focuses on what the City can do to
meet the Town's concerns if, ultimately, the landfill is built
  During the ensuing 2 months, numerous events affect the dispute. First, the
Town delays further negotiations because it is busy developing its litigation against
the landfill  On the City's side, the County moves to rezone the site and the DNR
gives its final approval for the landfill. The Town acts quickly to halt construction by
seeking an injunction in the Circuit Court, causing the City to  withdraw from  a
scheduled  bargaining  session   However,  when  the  judge refuses to enjoin
construct/on for lack of jurisdiction over the DNR,  but  issues a  restraining order
and suggests that a refiling  against  the City might succeed,  uncertainty is
heightened on all sides, and the parties decide to return to the table.
                              DISCUSSION

  The  mediators' first steps upon receiving the DNR invitation to  mediate were
conventional. They contacted all the parties, explained the mediation process to
them, learned about the issues and dynamics in the dispute from the parties, and
sought to ensure that each party would participate in the process voluntarily and
bargain in  good  faith.  Meanwhile, the  parties had an opportunity to  become
personally acquainted with the mediators and assess their independence, skills,
and other qualifications.
  But not all of the groups that had made their views known in the dispute became
parties to the actual negotiations. Unlike public participation models, mediation
does not guarantee every interested party a role in the process It happened that
some of the parties—the County,  three citizen groups, the Chamber of Com-
merce, the  local manufacturing company, and the union—were peripheral to the
negotiations, not because  of any subjective  measure by the mediators  of the
validity or intensity of their concerns,  but because, by their own behavior, they
remained outside the dynamics that determined the outcome of the dispute.
  EPI and the Town had taken concrete actions that forced the City and DNR to
respond to their concerns  They flexed legal muscle that  altered the course the
landfill advocates were following. The  other citizen groups had available to them
the same legal mechanisms that EPI had employed but, for whatever reasons, they
chose  not to use them or take other forceful action  Their  inaction,  relative to the
parties' actions, restricted the  role they would play in the final  decisionmakmg.
  While the County did eventually cast a vote in favor of the landfill by approving
the rezoning, it did not more actively support the landfill The manufacturing
company, union, and Chamber of Commerce had been very active advocates of
the site, but they decided to defer to the City when it came to actual negotiations.
  Who comes to the table to resolve a particular conflict depends on the relative
power of each party to the conflict, as perceived by the other parties The power
relationship will  also determine, in broad outline, the terms of settlement
  Essentially, power is the perceived capacity to influence the actions of another
plus the willingness to use that capacity, as shown in the hypothetical case study.
If a challenging group  has the power to force an action, but has  demonstrated
clearly that it will not use that power, it  is not likely to be effective at the bargaining
table
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  The other side's perception of the strength of that power is equally important
Perception determines the other side's response, both in its general approach to
negotiations and in specific actions or "moves " It is the appearance of power,
therefore,  that has the most significant effect on the outcome of negotiations, not
some objective measure of power
  Each group also judges its power in relation to the power it perceives the other
groups have in a particular dispute If one party's power is overwhelming in relation
to that of other parties, and if it is willing to exercise that power, clearly there is no
need for negotiations The dispute in which meaningful negotiations will take place
is one in which the outcome is in  doubt and where no  party perceives its own
power  to  be  overwhelming   What is needed for  negotiations to  work is not
necessarily equality but a distribution of power.
  Power is not static, but can shift  in  response to several factors.  One party may
lack the capacity to maintain power over a long period of time. Events  may shift
power among the  parties as the court's  injunction and the  County's rezonmg
approval  did m the hypothetical example   A group may have the  capacity to
influence actions, but may be unwilling or unable to exercise  it  unless the group
feels ignored or threatened In fact,  groups often develop  their constituencies and
increase their resolve to intervene only when they feel a process is unfair. Time
may also be viewed differently by the parties, delays are  costs to  developers but
can be a tactic for opponents  Mediators and the participants in mediation must
recognize the dynamics of power relationships
  If all of the parties with  power and the disposition to use it do not participate in
the negotiations, if any such party remains aloof or excludes itself, the negotiations
cannot be successfully concluded  The outside power will continue  to press its
position despite any consensus reached among the parties in mediation Thus, it is
a crucial part of the mediator's job to help determine which parties  are essential to
resolving the dispute, explain this to the other parties, and encourage everyone's
participation  If one or more of these parties refuse to participate, negotiations,
with or without mediation, will be a  waste of effort at best, and, at  worst, a sham
  By the time a dispute has matured to the point where the powerful parties are
identifiable and interested in mediation, some of them may have developed very
negative attitudes toward  others This may surface in the form of questioning the
legitimacy of certain parties' participation in negotiations The  mediator, who is
viewed as expert  in such matters, must  explain  that  it is  necessary for the
challenged parties to be  involved if the conflict is  to be mutually resolved and
solutions are to be lasting The mediator's analysis is objective and  neutral and
may persuade where no other is credible
  Because most mediation settlements lead to the  development of the disputed
facility, it is sometimes charged that mediation is biased in favor of development. If
that were true, opposition groups would be making the biggest concession simply
by agreeing to mediation  It is important to note that the process of mediation
cannot bias the outcome unless it is unethically manipulated by the mediator, and
such behavior would probably become obvious before  an agreement would  be
signed  The true determinant of the outcome is bargaining power,  and advocates
of alternative solutions  frequently lack the clout required to  prevail  against the
proposed project. There may be no nondevelopment alternative that would serve
as a true compromise and  be acceptable to the other parties. Thus a party
advocating such  a solution  would  probably decide  against participating  in
mediation from the start and press its case in some other forum
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  In hazardous waste  disputes, the State may have  a role greater than that of
regulator or permitting authority  Its responsibilities for developing a plan, initiating
the siting process,  determining that a  site  is necessary, assisting owners and
operators, or indeed itself owning and operating the facility may cast it in various
postures for negotiations  It may be the case that the State is such a formidable
party that the issues are limited to the design and operation of the site and there is
no real opportunity  for  other parties to prevent a facility from being established at
any particular location
  In situations where there is considerable State involvement in support of a site, it
will be important to  identify the level of State government that has the authority to
make the compromises that lead to settlement If the individuals or agencies at that
level are not subject to  pressures from the other parties, negotiations are not likely
to be productive On the  other hand,  the State may have financial  and other
resources that enable it to make very attractive offers Perhaps a lesser entity could
not afford  the design  or  operational modifications that will satisfy the facility's
opponents  The  State  may  be able to offer  incentives,  compensation, and
mitigation measures not within the means of other types of developers, making it
an attractive party across the bargaining table.
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How  Does   the   Mediator  Operate?
  The participants hold the final mediation sessions in a hotel. Representing the
City are  various officials and technical staff, including the city manager,  city
attorney,  and a public works department engineer. The DNR is represented by an
attorney and technical  personnel. The Town's bargaining team consists of its
attorney and two Town  board members EPI is represented by a staff member. It
turns out that two sessions of several hours each are needed.
  At the  first joint session, the individuals facing each other are, quite literally,
those who for 2 years have been frustrating and threatening one another. But the
mediators' presence as  outsiders and their methods as neutral presiders have the
effect of moderating the  tone of the negotiators' statements and questions.
  The mediators conduct the meeting, granting the floor to one party after another
to maintain the  flow of  discussion and steer it toward resolution  The mediators
encourage full discussion of the historical development of the case and encourage
each party to state clearly and specifically what it wants in a settlement. When at
one point a party announces an unwillingness to compromise, the mediators
remind everyone that their attendance implies an interest  in settlement No one
claims this is a misinterpretation. The mediators also note that their participation is
at the invitation of all the parties and  therefore they expect full cooperation as they
determine the continuing course  of the meeting.  Thus, without fanfare, there is
growing agreement to work toward resolution with the full knowledge that this can
only be accomplished through cooperation and compromise.
  Each party has a full opportunity to present its views on the technical issues and
to question the views of others. Sometimes the mediators ask questions to ensure
clarity or interrupt when a statement  or question seems irrelevant or evasive. They
allow for some relief by ventilation of  built-up frustrations or hostilities, but they also
try to inhibit outbursts that might exacerbate the conflict.
  At one time  or another, each of the parties is unable to  accept  another's
technical analysis because its negotiators  are unsure of their own expertise  At
those junctures the  mediators encourage  the parties to caucus with  their own
technical experts who are present Upon returning to joint session, the negotiators
can then be confident of their statements and have a secure footing from which to
proceed with the discussions
  Gradually, the parties identify  the technical data  that  are not controversial
Where  a  party finds its own position has been based on  a  technical  error, the
mediators encourage correction by characterizing the change as a show of good
faith and evidence of conscientiousness Eventually the technical discrepancies
among the parties narrow to insignificance,  opening  the  way to agreement on
design and operational details
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  As the mediators listen to the parties' exchanges in joint session, it becomes
clear to them that the Town's position is based mainly on its opposition to the
proposed facility rather than the legal questions it has raised in litigation.  This is
consistent with private discussions the mediators have had with Town representa-
tives in  the preceding months  The mediators choose to caucus with  the Town
negotiators.
  In the caucus, the mediators review the status of the situation and urge the Town
team to  review its prospects for success privately with its attorney,  who is a
member of the team  They hope the attorney will remind the Town of the costs of
extensive litigation and acknowledge  that, given the settlement of the scientific
issues by EPI, the Town cannot be confident of success in court. The mediators
leave the caucus and say they will return later asking for a proposal, as specific as
possible, to submit to the other parties
  Next  the  mediators meet in separate  caucuses with  DNR,  EPI,  and City
negotiators.  They advise DNR that they are encouraging the Town and  City  to
exchange specific proposals and that they will be asking DNR representatives to
review them for unacceptable elements They suggest the City reconsider its legal
and practical positions, pointing  out the passage of time, and ask the negotiators to
rank the City's needs so that they will be ready to respond to a Town proposal that
might be only partially satisfactory
  EPI reaffirms that its principal concerns, and those of the other citizen groups it
has come to represent,  were largely settled in the previous round of bargaining
and that its continued involvement in the talks is to safeguard its earlier agreement
and generally monitor any subsequent settlements.
  What follows is a series of proposals and counterproposals, developed by the
City and Town in  their caucuses and reviewed by DNR. When the City rejects the
Town's proposal, it is asked for a proposal of its own, incorporating the acceptable
elements of the Town's position. If something in a proposal is unclear or requires
some elaboration,  the mediators seek clarification or reconvene the joint session
for questions and answers.
  At one point a party says it has exhausted its ingenuity to devise new solutions.
The mediators remind it of the consequences of failure, including costs, possible
losses in court, and political developments. When another party repeats in caucus
threats made earlier against its opponent, the mediators express doubts about the
strength of such threats, implying what they have learned  from the other parties
about the uselessness of those threats
  When the parties indicate, as they near settlement, that they fear they are
exceeding  the latitude granted them by their constituents or organizational
superiors, the mediators adjourn the meeting so  that the negotiators can reaffirm
their representative status and gain the necessary authorization.
  By the end of the second session, the mediators decide to offer a proposal of
their own based on what they have learned. They know that, although the proposal
might be acceptable all around,  it is simply too close to the individual parties' outer
limits for any one of them to suggest it.
  Specifically, the mediators suggest measures that will directly address the Town
residents' concerns about the sights,  smells, sounds, and  stigma of living near a
 "dump  " The City agrees with the suggestions,  and most of the provisions in the
final settlement reflect the City's response.
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                            DISCUSSION

  A mediator's work commences with the first discussion with a potential party ot
the details of an actual case The mediator begins at that point to understand the
parties'  concerns and  their power to affect the outcome of the dispute These
insights influence the mediator's view of the dispute, and he or she questions and
listens to the other parties more knowledgeably. The parties, in turn, begin to learn
about one another from a disinterested expert and gam objective information. This
information includes the technical data upon which the various positions are
based, legal  interpretations that must  be considered in evaluating one's own
position, and political judgments that are frequently crucial
  In the sequence of  interactions between a  mediator and potential parties, the
mediator discusses the dynamics of negotiations with people who probably are not
used to that process. This discussion almost invariably refers to the particulars of
the case at hand concerning  power, who  has it and how much, and why those
parties cannot be ignored or  excluded from negotiations Thus, the parties are
instructed to some degree in  negotiations.  This  should not alter the power
relationships of the  parties or affect the content of an eventual settlement,  but it
does direct the parties away from counterproductive tactics and toward realistic
examination of their own positions
  Once all the parties that are necessary to resolving the dispute are engaged in
the mediation, the mediator will probably call a joint meeting that several parties
attend The first two such sessions in our hypothetical case were those described
earlier involving EPI, DNR, and the City. Because of the reasons for EPI's interest
in the case, the major agenda items at those meetings were technical.
  By  the time  of the two sessions described in this  section, the parties  all
recognized that the issues of concern to EPI and other allies of the Town had been
resolved in favor of the City's proposed site, as long as certain engineering designs
would be implemented The only remaining disagreements concerned the various
legal positions and the social and political considerations underlying them.
  Joint sessions are usually held in neutral settings at which none of the parties
feels uncomfortable or pressured  They are informal, parliamentary procedure is
not followed. However, it is clear that the mediator is in charge of running the
meetings All of the participants receive equal and even-handed treatment.
  The reliance on technical experts that occurred in the hypothetical  case can
also occur when the  conflicting positions are legal or scientific.  The mediator
encourages the parties to examine fully one another's theories of the applicable
law so that each  can evaluate its own judgments and, if necessary, correct them.
No party is required to assume a scientific or legal position until it has exhausted its
own resources for expert advice. In both types of disputes, scientific and legal, the
parties may discover their most trusted advisors do not necessarily disagree with
all the positions  of  the other parties and  that there are acceptable alternative
approaches that  allow for settlements. The mediator's role includes encouraging
the sharing of detailed data and opinions and the Devaluating of positions, and
directing the process so as to avoid any embarrassment or rancor.
  As they listened and  watched in each party's caucus, the mediators, who were
the confidants of all  the parties, began to identify the core issues that participants
would not compromise on As the participants discussed and accepted or rejected
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possible concessions, the mediators came to understand the deepest concerns o1
the Town and the sorts of accommodations and additional costs the City would be
willing to accept, as well as the DNR's regulatory limitations. With these insights,
they were able to alert the parties to avoid certain concessions that would not bring
forth a valued return
  The mediators understood that the negotiators might not go to the limits allowed
them by their constituents when they could not be sure of achieving a settlement.
The mediators also knew that such limits could be reached  in the process of
accepting someone else's proposal, in this case that of the neutral outsider So the
mediators offered  a compromise of their  own.  This  proposal was not an
independent exercise that reflected the mediators' views about the merits  of the
case Instead it was based on their insights into what each party might accept
They hoped the proposal would be acceptable to the parties or at least act as a
basis for developing settlement terms The mediators presented the proposal to the
negotiators only, it was not made public It was made to all the parties on behalf of
all the parties
  It is difficult to imagine this settlement being achieved without a disinterested
party  How could one of the negotiators constantly remind the other negotiators
that they were in trouble if they did  not reach a settlement? What credibility would a
party have in explaining to a  threatening negotiator why the  threat was not
effective? Could the pressure  toward  settlement have been maintained without
discussion of the consequences of not settling?
  Clearly, in some cases only a trusted outsider can remind the parties that they
are under pressure for a  solution without bringing  counterproductive attitudes to
the surface. And only a neutral  presider can conduct the exchanges of data and
interpretation that  allow  the  parties to  identify the real discrepancies in their
positions and then address those with ingenuity and concessions.
  A factor that  distinguishes hazardous  waste siting disputes from many others
faced by mediators is the crucial role played by technical experts  Individuals and
groups that oppose a  facility may fear that the  State's environmental quality
standards do not provide enough protection  They may be backed by experts
trained in scientific and engineering  disciplines,  who have  reached different
conclusions from those of the experts employed by the site's proponents and the
State Sometimes these scientific debates cannot be resolved because the state of
the art  is  inconclusive  and  even the  most  knowledgeable expert  can only
speculate In other cases there are responsible grounds for reconciliation because
sufficiently conclusive research has been reported, or because the parties' dispute
stems from differing data and they are able to agree on one set of data to use.
  Scientists and engineers supporting the negotiating parties  may  benefit  by
discussing  certain technical  issues among themselves  because  they can use
mutually  understandable technical shorthand to discuss complicated matters. But
they may be the individuals least able to adapt to  the personal interaction styles
that  promote such discussions  Their training and  experience have stressed
uncompromising accuracy and precision They may not recognize when particular
modes of presentation and argumentation are unnecessarily inflammatory. There-
fore, mediators may be  of  particular  assistance in these  highly  technical
discussions, not by adding to the substantive expertise, but as presiders when the
experts especially need facilitation and moderation. Mediators can, for example,
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guide the discussions  toward identifying correct conclusions  and away from
irritating charges of  who  has been correct and who has not. Mediators can
establish ground rules that obviate personal attacks and focus discussion upon the
specific issues at hand
  Of course,  the negotiating parties' technical  experts might also participate  in
general negotiating sessions In that setting, their expertise may be perceived as
inappropriate  self-assurance  and  their  jargon as  a method for  obstructing
decisionmakmg  In particular,  individuals who  are  frightened of environmental
consequences may see the proponent's experts as  attempting to denigrate their
anxieties In such cases, once again,  the mediator's conduct of the  meetings,
ensuring that  explanations are understood and that presentations are moderate in
tone, can alleviate such polarizing behavior.
                   WHAT ABOUT THE MEDIA?

  Negotiations over the siting of a hazardous  waste management  facility will
probably attract reporters from the local news media. Many States have open-
meeting laws that govern when meetings involving public officials must be open to
reporters and other members of the public Thus, in some situations, State law will
require the negotiations to be open  if a  State agency or local governments are
among the negotiating parties  The presence of a mediator does not change
openness requirements,  whatever  statutes  govern  negotiations  also govern
mediation
  Where open-meeting laws do not apply, the decision of whether to invite or allow
reporters to be present during negotiations will be made by the parties in light of
the negotiations' dynamics  and the  parties' own views about openness. Again,
because these same determinations must be made in unmediated negotiations,
they are not an element in the decision of whether to use mediation
  Mediators do provide some advantages to the negotiators in  dealing with the
media, however. When the mediator is moving among the parties with information
and proposals, but there are no actual meetings of the parties, there are no events
to attract reporters More importantly, if meetings are held in closed session, the
mediator can serve as a press liaison on behalf of the parties. To avoid statements
that may detract from the negotiations, the parties may  agree to issue a joint press
release to be presented by the mediator Or the mediator may give press briefings
and interviews in place of the individual parties.
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How  Are  Agreements  Implemented?
  As the parties reach agreement on the specific terms of the settlement and turn
their attention to how to implement it, they discover the degree to which they are
pioneering the new use of an old technique.  They find that  environmental
mediation differs from labor mediation in a number of important ways that pose
special challenges to them as negotiators
  They realize there is no existing group that can oversee implementation because
the dispute itself is unprecedented, and the agreement will require a new level of
cooperation between  the City and Town. They decide to create an advisory
committee that will monitor implementation of the settlement and deal with any
disputes over the agreement or new problems that may arise. The  committee will
have one representative each from the City, Town, and DNR and will select a
mutually acceptable, impartial chairperson  It  will be free to call on the mediators
again if it is unable to resolve any future difficulties
  Next they must decide on the form for issuing the agreement to  make it legally
binding  They decide to seek formal ratification by the two principal parties, the
City  and Town, through  passage of corresponding ordinances by the two
governing bodies.
  Once  this is accomplished, they then submit the agreement to the DNR for
normal regulatory review  This step is expedited by the DNR because the agency
has followed  the development of  the agreement and has already  informally
evaluated those provisions requiring its approval. After formal review, the DNR
accepts  the agreement and issues it as a Consent Order, thereby settling the
appeals pending before a department hearing examiner.
  Finally, the Circuit Court accepts the agreement as a court Stipulation and the
basis for out-of-court settlement of the suits pending before the court.
                            DISCUSSION

  When the parties in our hypothetical case reached agreement, they brought the
terms of their settlement to the Circuit Court and DNR and further agreed that their
pending cases should be dismissed on those terms. In that way, the negotiated
settlement became an enforceable order and gave the parties some assurance that
the settlement would be administered. It established the court as final recourse in
the event the agreement should break down in the future.
  Had they simply entered a contract, as would normally follow labor negotiations,
they might have encountered a variety of legal and political complications. In some
States, municipalities  have  limited authority to enter contracts,  as do State
agencies. Also, if a breach of the contract is alleged,  recourse becomes a political
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process requiring action by the governing body. A group with a complaint would
have to seek redress through its municipal government rather than directly through
its own court action
   In the agreement,  the parties  created  an advisory committee to monitor
administration of the settlement on a continuing basis. The committee would be
free to call on the mediators  again in the event  of future disagreements. This
reflected their interest in a continuing dialogue to prevent repeatedly turning to the
court. The advisory committee  became their forum for interaction for the duration
of implementation. Because the parties to environmental disputes typically do not
have an established and interdependent relationship, as do labor and manage-
ment, it is often  appropriate that  the agreement create some mechanism  for
oversight and decisionmaking
   It was reasonable, and not necessarily cynical, for the parties to anticipate some
future disagreements over compliance with an agreement that is complex and long
term. This brings to mind labor contracts in which  unions and employers include
grievance procedures with arbitration as their final step In that sector it has come
to be regarded as moderate and  enlightened to  recognize that there may be
controversy over the terms of a settlement  and to provide ground rules for future
disputes
   The  provision for  continuing  dispute resolution also recognizes that  future
disagreements  might  not arise  only  from  questions of compliance,  but from
completely unanticipated developments, such as regulatory change, an error in
design assumptions, or an unforeseen  impact of the facility.  In any case, a dispute
during  implementation of an agreement does not imply a defect in the settlement's
terms or a lack of good faith  Rather, it  is a normal, predictable consequence of an
agreement's complexity and its  importance to all concerned.
  An alternative to creating an advisory  committee would be to designate a
process for arbitrating disputes  over interpretation of the agreement. This would be
a more formal process as in the labor relations model of grievance arbitration. This
approach  might expedite dispute  resolution,  assuming a knowledgeable  and
impartial person or body can be found  to arbitrate  However, it would not create a
forum for dealing with new or unanticipated problems that were not covered in the
agreement.
   Negotiated settlements in environmental conflict differ in many ways from those
in collective bargaining Labor-management negotiations generally conclude with
a  written contract for a fixed  term, and the parties  can anticipate subsequent
rounds of bargaining for future contracts over  the same subject.  This is not the
case with environmental negotiations that develop the final terms of an arrange-
ment and do  not have a conventional method for preserving and enforcing those
terms.
  Thus, negotiators and environmental mediators must use  ingenuity in anticipat-
ing the problems of implementation and devising both the form of the contract and
an implementation mechanism that will  be effective and make the agreement stick.
All negotiations do not occur in  the context of litigation, and therefore it is not
always possible to achieve court issuance of  a stipulated settlement. In some
cases,  the  parties simply agree to  continue to negotiate in good faith with the
assistance of the mediator during the period of implementation. This is likely to be
sufficient if the political realities of their relations militate against withdrawal from
the basic agreement before it has completed its course. It is  often understood that
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each negotiating team has sold the agreement to its constituents and principals
and that this process limits future general discrediting of the agreement by the
negotiators
  Mediators are glad to assist the parties further if they encounter problems in
agreement implementation, and the mediators' own understanding of the negotia-
tions may help resolve compliance problems. However, mediators do not serve as
administrators for the agreement; nor are they responsible for compliance. The
principal virtue of  negotiated settlement  is that  it  leaves responsibility with the
affected  parties On this basis, it can be viewed  as superior to litigation, and
mediation should never serve to transfer this responsibility, even after negotiations
are completed.
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Is   Mediation  Right  for  You?
  If you are involved in a hazardous waste dispute and are considering mediation,
ask yourself these basic questions

•  Are you  (or is  your  organization, governmental agency, company, unit of
   government)  willing  to  consider  compromise?  Is  there flexibility  in your
   position? Is it in your interest, for whatever reason, to end the dispute?
•  Might these be true of the other parties?
•  Have  you given your  adversary  reason  to bargain with  you? Have you
   positioned yourself to inhibit in some way unilateral action by your adversary?

                                    or
  Is there any reason why you should  make concessions to your adversary? Is
  your adversary able to obstruct your course of action in some significant
  way?

  If your answers to these questions are "yes" or "maybe," your next step is to
consult with  a mediator Start by reviewing the criteria for selecting a mediator in
the next section. Then  consult the list of groups  and individuals  involved in
environmental conflict resolution (Appendix B) to find a  mediator in your area or
one whose description of services sounds like it will best meet your needs.
  Most of the mediators and mediation organizations on the  list  are operating on
demonstration grants  from  foundations or governmental agencies that  cover
salaries  and reasonable  travel expenses They can offer their  services without
charge to the parties and therefore mediation  is no more costly than negotiations
without a mediator If some or all costs are not covered, the parties will have to
work out a payment plan  Even in that situation, mediation should be far less  costly
than litigation
  As an alternative to the list of practitioners included here, you can try contacting
your State labor  mediation service or  a private  mediator from labor relations or
some other dispute sector whom you know and trust. You may be able to interest a
local mediator in trying an environmental case and arrange to cover fees in some
way
  Any person who is a party to your dispute or is knowledgeable or in some way
close to the dispute may make the initial contact with the mediator.  Although it
might at first appear that willingness to  negotiate, either on the part of the initiating
party or other parties that subsequently agree to participate, is a sign of weakness,
willingness can also be portrayed as showing openmmdedness, flexibility, and the
desire to solve the problem  Implicit in  that portrayal is that the opposite is true of
those who refuse to negotiate
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  It is for you to make clear to the mediator and the other parties that, while you
possess these virtues, you also intend to bargain hard. True weakness will reveal
itself in time through  the  threats and proposals each party  makes and  the
seriousness with which the other parties regard them.
  With the mediator you will explore such questions as who are the other parties,
what are the important issues, what are the dynamics and  power relationships
among the  parties,  whether the  parties  are  under sufficient  pressure to be
motivated to  negotiate, and whether there is uncertainty as to who will win in
adversarial processes In other words, you will begin to explore the key question of
timing. Are conditions ripe for mediation?
  A mediator cannot draw definitive  conclusions  by talking to just one party.
However, unless mediation is clearly ruled out by some inhibiting factor (such as a
party's unwillingness to compromise or the overwhelming power or likelihood of
victory by a party),  the mediator will probably discuss with you the best way to
approach the other  parties to explore the potential for mediation These contacts
might be made by the mediator, by you, by other  individuals who are trusted by the
parties in question, or by some combination of the above.
  Once all  the parties have agreed to consider at least trying mediation,  the
mediator will  meet with the parties individually to learn about their positions and
perspectives of the  dispute and let them question him or her about the process.
These  meetings will be part of the mediator's continuing evaluation of whether
mediation is appropriate in  the dispute  and the parties' continuing assessment of
the process and the  mediator
  At any point,  the  parties or the mediator may choose to abandon the process,
possibly in favor of a different conflict resolution  process (Appendix A), a different
mediator, or  to revert  to the regulatory processes and/or  litigation already in
progress. Or mediation will  progress  to the negotiations stage,  with  its  own
techniques and interactions described previously.
  Few parties to hazardous  waste disputes are experienced in  mediation  The
subtleties of dynamics and timing  that determine when mediation is appropriate
may not be readily apparent to you, despite your expertise on the issues  For this
reason, aside from asking yourself the basic questions listed at the beginning of
this section, if you are involved or anticipate becoming  involved in a hazardous
waste dispute, contact a mediator early in your analysis of mediation's suitability
There is no risk in exploring these questions with a mediator, while much may be
sacrificed by postponing this assessment or by reaching uncounseled conclu-
sions.
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What   Should  You   Look  for  in  a

Mediator?

  The  most basic  criterion  for selecting a mediator  is acceptability  to  all  the
individuals and groups who  must participate in finding the solution to  a dispute.
The mediator should not be  unacceptable for any reason to any of the parties. If
the mediator is unacceptable to any party (or even if a party has reservations about
the mediator), he or she will be unable to serve effectively
  You should be careful and critical in your selection and continued evaluation of
a mediator  It is your concerns, your resources, and your future that will  be  the
subjects of the negotiations. The mediator should be an intervenor with no stake in
the dispute and little or no stake in its resolution.
  In the initial screening of a mediator, consider the demonstrated performance of
the mediator or mediation organization  and  the  mediator's personal  skills and
attributes in dealing with the parties. Judging performance or experience may
require extrapolating from other  mediation experience, either in another type of
environmental issue or more broadly
  You should recognize that  selecting a mediator is an important decision that you
have both the responsibility and  authority to make. This is more than a one-time
exercise of  responsibility. It extends throughout the full mediation process, from
your initial contacts with the mediator to negotiation of the issues. If, at any point
during this  process, you should  find the mediator to be unacceptable, you may
discontinue using the mediator's services
  Following are additional concerns you  should explore and suggestions on how
and when to do so

                  DURING INITIAL DISCUSSIONS

  Organizational Independence. Is the mediator part of  an organization  or agency
that has a continuing interest in the dispute or its outcome? If so, whatever the level
of personal  integrity and independence the mediator  may have, his or  her
connections with the dispute are likely, at some point, to get in the way. The parties
should be  aware  of the  mediator's source  of  funding, how the mediator is
introduced to the situation, and any organizational  relationships the mediator may
have to regulatory agencies, elected authorities, or other parties at interest.
  Personal  Detachment. Parties should be  concerned  about the mediator's
personal involvement—intellectual,  economic, or  emotional—in the issues. De-
tachment is a crucial attribute for  a mediator; his or her primary focus must be on
the process by which the parties  address and reconcile their differences, not  the
outcome of the issues
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  Technical Expertise  Technical expertise  in the issues in dispute could be a
negative factor in a mediator Experience suggests that the mediator who is expert
in the content of the dispute may find it difficult to separate his or  her personal
assumptions, expectations, and values from those of the parties. The mediator may
interpret for the parties in an inappropriate manner and may even lead  them to a
solution that is not theirs On the other hand, technical knowledge  the mediator
has gained  in similar cases  might be an  advantage and add to the  parties'
resources, if it is not drawn upon excessively
  Experience in Mediation There is no good substitute for experience as a basic
qualification for a mediator  or mediation organization. If other  parties have used
the  same mediator  more  than once,  that suggests an  endorsement of the
mediator's skill. Or if the mediator has had experience with a variety of groups, you
might be able to check out the  mediator with another group or individual. When
first meeting a mediator, probe for possible references and sources of this kind of
information.
  Since there are no mediators  with experience yet in hazardous waste disputes,
look for the most nearly similar experience For example, a mediator should have
demonstrated some facility in dealing with.

•  multiple parties
•  lack of a previously established relationship among the parties
•  long-term, possibly irreversible, decisions
•  the need for a process structure that deals with private sector organizations,
   government agencies, regulatory bodies, elected officials, and individuals who
   will be directly affected by the proposed project
•  a wide variance among the parties in technical expertise, level of organization,
   and personal involvement
•  complex issues

  If the prospective mediator has not had experience in mediation per se but in
related conflict management processes, probe for his or her understanding of the
differences among different approaches to conflict resolution. In many  cases, an
experienced mediator will work with a less experienced or inexperienced colleague
to  ensure that parties  receive the best possible assistance, while  additional
mediators are being trained.

                 WHILE  DESIGNING  THE PROCESS

  As you continue your assessment by the criteria mentioned above, you will also
be able to judge the mediator on a variety of personal skills and attributes.
  Knowledge of the  Mediation  Process. Since most of the parties to hazardous
waste disputes are likely to be inexperienced in mediation, the mediator must be
able to articulate clearly the process and its dimensions and ultimately to  coach the
parties in the use of  the process in a manner that does not alter their relations.
  Empathy.  You should not expect the mediator  to agree with your positions or
interpretations of the facts. However, the mediator should understand and accept
all of the parties' positions and interpretations as real and legitimate. If a mediator
agrees with  one party on issues, he or she is likely to become unacceptable to
others or to mislead eventually all the parties.
  Understanding of Context. While the  mediator  is not a technical expert,  he or
she should develop a familiarity with the political and legal context of the dispute
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and the language of the parties. The mediator should evidence a real concern for
learning about the conflict from the perspective of each of the parties.
  Concern for Integrity of the Process A mediator should display an independent
concern for his or her own integrity and the integrity of the process. As discussed
in this handbook, there are certain criteria that appear to determine whether or not
mediation is appropriate in a given situation  A prospective mediator who tries to
sell the process in the face  of  an apparent absence of these criteria  may be
displaying concerns for other than the best interests of the parties.
  Chemistry   Mediation  can  bring  together a  difficult  mix  of personalities
Sometimes one or more of the  parties  just do not feel comfortable  with  a
prospective mediator  The experienced  mediator  will  sense this, withdraw, and
assist the parties in finding someone else. If he or she is insensitive or does not
withdraw, you should  recognize that the process of resolving your differences will
be difficult enough without this added burden and  exercise your  prerogative to
dispense with the mediator's services

                       DURING NEGOTIATIONS

  Even at this late date, several more criteria should be added to your continuing
assessment of the mediator
  Handling of Confidences   The mediator's  ability  to  assist the  parties  is
proportional to the parties' willingness to share confidences regarding their basic
concerns, possible areas of agreement, and even their  willingness to cede certain
positions  The mediator should clearly be able to differentiate between information
to be conveyed from one party to another with  attribution,  information to be
conveyed but only as  a mediator's observation or guess, and information that is
given strictly for the mediator's own background and not to be conveyed  to other
parties. Violation or misunderstanding of such confidences is grounds for dismissal
of a mediator
  Willingness to Listen A mediator who does more talking than listening is unlikely
to be of much assistance in  helping the  parties reach  their  own  decision. A
workable solution must occur within the parties' own frame of reference,  and the
mediator must listen to learn the nuances of their frame of reference
  Adequate Time for the Parties and the Process. Mediators recognize  that many
hours of effort are normally required for every hour of joint meeting. This should be
particularly true in  hazardous waste disputes where there are many parties and
complex issues. Be sure the mediator  can  commit sufficient time to your  dispute
  Relationship to Parties Not at the Table In some disputes, parties not at the table
need to be kept informed or consulted during negotiations It is the  mediator's job
to do this without violating confidences. The mediator might give regular reports to
the press, for  example, or check with  a  regulatory agency  to be sure the
agreement that is taking shape is likely to satisfy regulatory requirements
  Focus on Achieving a Workable Agreement Perhaps the most difficult role of a
mediator  is to ensure that  the parties  carefully  consider  the  difficulties  of
implementing the agreement and ensure  its technical, economic, and  political
workability At times in the drive to reach agreement, the parties may be tempted to
agree to  items they  cannot  implement or  for which they cannot adequately
guarantee the support of those they represent  The mediator should draw attention
to these issues to ensure the mediated results will be productive and long lasting
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Appendix  A
Public  Consultation   and  Dispute
Resolution  Processes
  This Appendix briefly describes some of the other processes that, because of
their use in environmental affairs or their association  with mediation in other
situations, should be distinguished from "environmental mediation" as that term is
used in this handbook 3
                       POLICY  DIALOGUES

  Policy dialogues, which are conducted by a third-party convenor or a facilitator,
are aimed at developing new policies for environmental affairs. They are attempts
to develop consensus among some or all of the identified interest groups, and to
transmit their agreements and any dissents to such policymakers as legislators,
regulatory  agency  heads, and leaders in industry Through conferences, where
views may be examined and data exchanged in a constructive atmosphere, parties
can discover shared values and the legitimacy of opposing views in the search for
mutually acceptable policies  Policy dialogues are not  usually related to specific
disputes and are not tightly bound by existing statutes, administrative rules, and
court decisions.
                    PUBLIC CONSULTATION

  Public consultation or public participation is a process that provides regular
forums for interested individuals and organizations to learn about some proposed
or existing development or resource use and to have input into decisions pending
by an agency or private developer Public consultation methods range from public
hearings  and  opportunities to review official  documents to more  interactive
techniques like workshops  and citizen  advisory committees. Their  goal is to
achieve maximum feasible participation by interested parties or, in the latter cases,
more in-depth participation by representative members of interest groups in the
  3 For discussion of  other  processes in  greater depth,  see New Tools for Resolving
Environmental Disputes by Peter B Clark and Wendy M. Emrich (Council on Environmental
Quality and Resource and Land Investigations Program, Geological Survey, U.S. Department
of Interior, 1980), from  which parts of this discussion were drawn
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community.  A public consultation program  may be conducted by  a regulatory
agency, prospective developer,  consultant hired  for that purpose,  or, in some
cases, a third party
  The public input becomes a part of normal decisionmaking processes, and the
degree of its influence is at the discretion of decisionmakers. Public consultation
and public participation, therefore, are advisory and are often  required by law.
  Conflict anticipation is a term used to describe a number of methods applied by
third  parties  at the earliest  stages of a dispute.  It  is hoped  that by convening
conferences  of concerned individuals  and  organizations before polarization or
rigidity sets  in, at least some of the  issues in  conflict can be resolved. Another
advantage is that the parties' options and creativity may be greater at the early
stages of a dispute, before strategies have been shaped and invested in. Attitudes
based upon rumors and misinformation may be avoided.
  Conflict assessment is an  analysis—usually by a third party and sometimes by
regulatory agency personnel—of the dimensions of  a conflict, with recommenda-
tions  for how to avoid  or  resolve conflicts.  Its  purpose is  to provide a new
perspective  on the  dispute from  which the parties  themselves can design a
workable  solution   Done very  early, this step  may  prevent  the  conflict from
developing further  if the parties  use  the recommendations to work together
productively. At later stages of conflict, it can be used  by an agency to decide
whether to bring in an outside mediator.
  Facilitation is another process that may be applied  before a dispute  is sufficiently
defined for mediation  It is effective when used by groups with similar objectives
and/or functional interdependence where one cannot act without  the other. A
facilitator conducts informal collaborative problem-solving exercises of varying
numbers of  people who do not necessarily represent specific organizations. The
problems and issues are often  poorly defined at the outset. The group  works
toward consensus on the issues,  but agreements  may or may not be formally
recognized or documented at the end
  The facilitator is an impartial  intermediary who  helps the parties define  issues
and rank them for orderly discussion, while making  sure all parties'  opinions are
heard He or she offers suggestions on the process  for problem solving, but does
not offer opinions on the substantive  issues.  The  facilitator  assists the parties
openly in a group, but does not ordinarily meet with them privately.
  Conciliation is a process in which an intermediary  works to restore communica-
tions  among disputing  parties  and foster a more  cooperative attitude so that
constructive discussions can resume. Conciliation as such is rarely used alone; it
usually occurs as part of a larger facilitation or mediation effort.
  Arbitration is a process that disputing parties may use to resolve their differences
when voluntary settlement methods have failed. Typically, labor and management
rely on  binding arbitration  to  resolve grievances and questions  of contract
interpretation  It is also used to  avert a strike when contract  negotiations fail to
produce an acceptable compromise.
  The arbitrator acts in the  capacity of a  judge, taking  testimony and receiving
exhibits from the parties. The arbitrator then makes a decision or finding intended
to resolve the issues.  In most States, there is a standard arbitration statute under
which arbitration is made binding and appealable only on limited grounds.
  Fact finding is similar to arbitration, except the fact  finder's findings are advisory.
The assumption underlying this process is that the  judgment  of an  independent
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third party as to questions of fact  and equity will bring pressures to bear
encouraging  parties  to  accept that  judgment or compromise  based on  that
judgment
  To date arbitration and  fact finding have rarely been  used in environmental
conflicts; the  concepts do, however, have some advocates It is likely that these
procedures will receive at least some experimental use in the environmental sector.
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Appendix  B
Groups  and   Individuals  Involved  in
Environmental   Conflict  Resolution
  Following is a list of practitioners in the field of environmental conflict resolution
Included are groups and individuals that use any of the various techniques
described in  Appendix A. These annotated entries are taken from a longer list
compiled by  RESOLVE,  Center for Environmental Conflict Resolution, and  are
reprinted with permission from RESOLVE.4 (The complete list  includes  some
parties who are doing research in the field but are not practitioners. Those have
been deleted here.) The annotations are only slightly altered from those provided
by the individuals and groups themselves
  Most of  these  groups and  individuals  have literature available about their
experience and environmental mediation in general. For further information, write
or call them directly.

   American Arbitration Association
   Research Institute
   1700 Broadway - Suite 1702
   New York, NY 10019
      (212)246-1839
      Donald B  Straus, President

  The American Arbitration  Association provides neutral  auspices for dispute
settlement  activities  of  all kinds including arbitration  (which is the  principal
caseload),  mediation, facilitation, conferencing, data mediation,  elections, and
workshops   It espouses  no  one process  but  believes that dispute settlement
procedures need to be tailored to the needs of the parties and developed with their
cooperation Mediators, arbitrators, facilitators, and other practitioners used by the
AAA are selected with the consent of the parties and are rarely on the AAA staff.
  "RESOLVE Center for Environmental Conflict Resolution, Environmental Conflict Resolu-
tion Organizations, Practitioners and Researchers (Palo Alto, CA, 1980), pp. 1-15. See new
address under the Conservation Foundation
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   Michael Appleby, Assistant Professor
   Division of Environmental and Urban Systems
   Virginia Tech
   Blacksburg, VA 24060
       (703) 961 -5506 or (703) 951 -8031

  Professor Appleby teaches citizen participation, community development (team-
buildmg,  dealing  with  conflict and power, social  change skills),  and  human
services  planning, consults  with  public  agencies  and  community  groups on
planning and decision strategies; offers training workshops in citizen participation,
consensus-building, and managing community conflict. The training and consulta-
tion can  include  skill-building  in group development, the use of participatory
decisionmaking methods, conflict assessment, personal communication, and third-
party mediation techniques

   Brooks, McAvey and Associates, Inc
   Suite 520
   Town Square
   445 Minnesota Street
   Saint Paul, MN55101
       (612)227-3531
       Ronnie Brooks and Maureen McAvey

  Brooks, McAvey and Associates, Inc., provides consultant services in program
planning  and project management,  economic development, environmental and
community conflict resolution, and public and private finances.

   Center for Collaborative Problem Solving
   185 Berry Street
   San Francisco, CA 94107
       (414)777-0395
       Jane Voget, Director

  The Center for Collaborative Problem Solving addresses multiparty issues in
environmental and other fields  Emphasis is on dispute avoidance, issues involving
many parties, and policy and physical planning issues, rather than fully identified
conflicts.   Center  practitioners  have also had considerable success with late
interventions
  The Center presently acts  as a broker between parties in conflicts  or potential
conflicts  on  one  hand, and on  the other, individuals trained in collaborative
problem solving and other dispute resolution techniques

   Clark-McGlennon Associates, Inc
   148 State Street
   Boston, MA 02109
       (617) 742-1580
       Peter B. Clark and John A. S  McGlennon, Principals

  Clark-McGlennon Associates assesses potential  conflicts that  emerge over
issues of  environmental impact, resource allocation, land use, plant siting, and
design. CMA utilizes third-party process management techniques such as meeting
facilitation and mediation to resolve disputes. CMA also designs and coordinates
training workshops in conflict management techniques.
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   The Conservation Foundation
   RESOLVE, Center for Environmental Conflict Resolution
   1717 Massachusetts Avenue, NW
   Washington, DC 20036
       (202) 797-4373
       Gail Bingham
  The  Conservation Foundation is a nonprofit research and communications
organization, based  in Washington, D.C. It conducts interdisciplinary research and
communicates its views and findings to policymakers and opinion leaders. The
Foundation has conducted a number of efforts to bring  together industry and
environmental leaders to debate and try to reach agreement on aspects of national
policy in areas including toxic substances, energy, and forest policy.
  The  Conservation Foundation  also conducts  research  and  serves as an
information center  for  those interested in  a variety of  environmental conflict
resolution techniques  This follows an April 1981  merger with  RESOLVE, Center
for Environmental Conflict Resolution. The Foundation publishes Environmental
Consensus,  a quarterly  newsletter,  an annotated bibliography; an annotated
directory, and other  publications.

   Institute for Environmental Negotiation
   Campbell Hall
   University of Virginia
   Charlottesville, VA 22903
       (804)924-1970
       Richard Collins, Director
       Bruce Dotson, Assistant Director
  The Institute for Environmental Negotiation was established at the University of
Virginia in January 1981. The Institute offers  a wide  range of services  to
communities  and groups desiring assistance  in  conflict resolution,  including
mediation of "mature" disputes, conflict anticipation, policy dialogues, consensus-
building,  and assistance and training for groups interested in using  negotiation to
make decisions

   Environmental Mediation International
   Suite 801
   2033 M Street, NW
   Washington, DC  20036
       (202) 457-0457
       Robert E Stein, President

   Environmental Mediation International
   60 Queen Street, 12th Floor
   Ottawa, ON, CANADA  K1P 5Y7
       (613) 238-2296
       Terence Winsor, Canadian Representative
  Environmental Mediation International (EMI),  with offices in  the  United States
and Canada, offers impartial  mediation  services for international environmental
disputes  EMI carries out policy research and has examined and analyzed specific
conflict situations  and disputes involving Canada, Mexico, and the  United States
and  has  investigated  environmental problems  in  Western  Europe  and  the
developing world
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   Federal Mediation and Conciliation Service
   Office of Mediation Services
   2100 K Street, NW
   Washington, DC 20427
       (202) 653-5320
       Harold E. Davis, National Representative for New Area Development

  The Federal  Mediation and Conciliation Service, under the Department of Labor
from 1911 to 1946,  became an independent agency in 1947 Its primary foci are
dispute settlement, private sector cases, and labor/management As of 1979, the
Service established  an experimental new area development section dealing with
consumer, housing,  environmental, discrimination, interpersonal disputes, etc. The
Service  promotes innovative actions  in  dispute settlement,  problem  solving,
training, and systems development.


   FORUM on Community and the Environment
   540 University Avenue
   Palo Alto, CA 94301
       (415)321-7347
       Marge Sutton, President
       Geoff Ball, Executive Director

  FORUM on Community and the  Environment is a nonprofit organization that
provides  interactive  conflict  resolution  services among  government, business,
labor, and community  groups.  FORUM works primarily on community  and
environmental  planning and development issues. It is also developing a conflict
resolution training program


   Institute for Environmental Mediation
   3318 Queen Anne Avenue North
   Seattle, WA 98109
       (206) 285-4641
       Gerald W. Cormick, Executive Director
       Leah K. Patton, Director of Mediation Services

  The  Institute for  Environmental  Mediation is a national center for the study,
development, and practice of mediation as applied to environmental conflicts. As
successor organization to the former  Office of Environmental Mediation at the
University of Washington, Seattle, the nonprofit Institute continues the effort  that
began in 1973 as the Environmental Mediation Project at Washington University in
St. Louis, Missouri
  The  Institute has three  distinct  program foci- 1) the provision of mediation
services; 2) training  for both potential parties to  mediation and for environmental
mediators, and 3) research  and development, including the design  of decision
processes incorporating mediation, such as in siting hazardous and  solid waste
disposal facilities, and various cooperative research efforts with the University of
Washington  The Institute will also offer a program for visiting fellows from industry,
environmental advocacy organizations, and government agencies.
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   Institute for Mediation and Conflict Resolution
   116 East 27th Street
   New York, NY 10016
       (212) 685-4400
       Laura D Blackburne, Chief Executive Officer
       Jeff Jefferson, Vice President for Training

  Founded  in  1970,  IMCR has been  active  in  the  application  of media-
tion/arbitration to the resolution of community disputes as a trainer of individuals
to act as third-party mediators in interpersonal and community disputes and as a
developer of alternative  dispute  resolution systems  for programs across  the
country. In addition, IMCR operates its own dispute centers, which serve the entire
New York City area.

   Interaction Associates, Inc.
   185 Berry Street
   San Francisco, CA 94107
       Michael Doyle and David Straus, Principals

  Interaction Associates,  Inc., with offices in San Francisco and New York, offers
process consultation, facilitation,  and training  services in collaborative problem
solving and meeting planning and management  The Interaction Method training
programs are offered  in major  U S. cities and onsite at the offices  of client
organizations, educational facilities, and large and small companies.

   Keystone Center for Continuing Education
   Box 38
   Keystone, CO 80435
       (303) 468-5822
       Robert Craig, President

  The Keystone Center for Continuing Education is a nonprofit organization that
organizes and conducts  consensus-building conferences on issues of national
concern, radioactive and hazardous  chemical waste management, conservation
and the utilities, the corporation and public policy, and Federal drug regulatory
policy.
  Conference participants are drawn from  academia, industry, the environmental
community,  and  government,  and  produce  documents detailing  conference
results, which are sent to appropriate officials for action.

   Laura M  Lake, Assistant Professor
   Department of Political Science
   UCLA - Bunche Hall
   Los Angeles, CA 90024
       (213) 825-6629 or (213) 825-4331

  Laura  Lake,  a  political scientist,  is concerned with the institutional  issues
associated with environmental and energy policy implementation: intergovernmen-
tal conflict, interagency conflict, public participation, and community conflict. She
offers mediation activities, including conflict assessment, policy forums, participa-
tory decisionmaking, and teaching
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   Richard C Livermore, J D., A.I C P
   1010 Almanor Avenue
   Menlo Park, CA 94025
       (415)321-4018

  Dr  Livermore offers arbitration, mediation, meeting facilitation, conflict analysis
and mapping, statutory/regulatory/general legal counseling on environmental,
land use, and natural resource matters

   Jane McCarthy
   29 East Ninth Street
   New York, NY 10003
       (212)484-4105

  Jane McCarthy is an independent mediator specializing in conflict assessment
and  mediation   She  has  served  as a mediator  in environmental disputes in
Washington,  Maine,  and  Rhode  Island  Currently,  she  is experimenting with
mediation procedures in higher education.

   Debra Mellinkoff
   1818 Hyde Street, Apt. 6
   San Francisco, CA94109
       (415)441-4832

  Debra Mellinkoff, an independent mediator with expertise in land use conflicts
and power plant siting,  is completing  her J.D. at the University  of  California,
Hastings College of the Law, in 1981

   National Coal Policy Project
   Center for Strategic and International Studies
   Georgetown University
   1800 K Street, NW, Suite 622
   Washington, DC 20006
       (202)833-1930
       Francis Murray, Director

  The Center for Strategic and  International  Studies  is a policy and research
institute affiliated with the Georgetown University. CSIS has been especially active
in the energy  policy area. Activities  in  the field of  conflict resolution have
concentrated on building consensus on important national policy issues. In  this
respect, CSIS served as the institutional home of the NCPP  A course in conflict
resolution  will be offered at the Georgetown University Business School starting in
1981

   New England Environmental Mediation Center
   190 High Street
   Boston, MA 02110
       (61 7) 451 -3670
       William R  Humm, Executive Director
       David O'Connor and Susan Carnduff

  The New England Environmental Mediation Center was established in July 1980
to encourage and advance the  use of mediation and negotiation in resolving
                                   40

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environmental disputes in New England. Funded by a Ford Foundation grant to the
New England Natural Resources Center, the Mediation Center has been active in
many environmental areas, including  hydroelectric power development, public
land management,  coastal zone development,  wetlands protection,  highway
construction, and historic preservation

   Francis X Qumn, S J
   Mediator
   Editor Ethical Aftermath Series
   111 S.  16th Street
   Longport, NJ 08403

  Francis X  Quinn, S.J ,  Ph.D., is an arbitrator and mediator. He is on the Board of
Governors of the National Academy of Arbitrators. Currently he is the editor of the
Ethical Aftermath Series—a study of major business problems in the 1980s. He is
also chairman of the National Coal Policy  Project and  served as chairman of
RESOLVE'S Nuclear Waste Management Process Review Forum.

   Rivkm Associates, Inc
   2900 M Street, NW
   Washington, DC 20007
       (202)337-3100
       Malcom D Rivkm, President

  Rivkm Associates is a  planning consulting firm,  involved in site-specific dispute
resolution  Malcom Rivkm is the author of several publications, including "Negoti-
ated Development: A Breakthrough in Environmental Controversies," Environmen-
tal Comment, May 1977

   ROMCOE, Center for  Environmental Problem Solving
   5500 Central Avenue, Suite A
   Boulder, CO 80301
       (303) 444-5080
       W  J D  Kennedy, Executive Director
       Susan L Carpenter, Associate Director

  ROMCOE,  Center for  Environmental Problem Solving,  offers a full range of
conflict management services, from conflict anticipation to mediation, for resolving
disputes over policy  issues and site-specific controversies  Our  experienced
professional  staff also conducts  training programs and provides advice  and
consultation about conflict management alternatives.

   Scientists' Institute for Public Information
   355 Lexington Avenue
   New York, NY 10017
       (212)661-9110
       Alan McGowan, President

  The  Scientists' Institute  for Public Information  is a  nonprofit  organization
dedicated  to providing objective  information on science  issues affecting public
policy.  This involves  assessing the issues, creating task forces of disparate
interests,  and building consensus on the  facts.  SIPI also engages in public
participation programs currently  under EPA and, formerly, for the Tennessee
Valley Authority
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  SIPI's Media Resource Service provides press briefings and refers journalists to
reliable  sources of scientific information. SI PI publishes Task  Force reports,
SIPISCOPE (its newsletter), and  Environment magazine (in cooperation with the
Helen Dwight Reid Foundation).

   Shorett and Associates
   Suite 100 - Colman Building
   811 First Avenue
   Seattle, WA 98104
       (206) 622-1160 or (206) 283-3307
       Alice J. Shorett, Principal

  Shorett  and  Associates provides third-party  mediation services  to parties
involved in disputes and training for mediators.  It teaches courses in negotiations
and conflict resolution, develops dispute resolution systems for  the public and
private sector, and provides facilitation and planning services for group or staff
retreats.

   Snider and Swift Associates
   PO Box 13053
   Oakland, CA 94661
       (415) 531 -2904 (M.S.) or (415) 527-0416 (T.S.)
       Marilyn Snider and  Tricia Swift, Principals

  Snider and Swift Associates is a  professional  consulting firm, speciahzing in
facilitation of problem  solving and planning meetings They have recently worked
with the Center for Collaborative Problem Solving for the BLM's California Desert
Plan  development  They  provide  facilitation  services,  process management
consultation, and training in basic communication skills, making presentations, and
meeting skills.

   Lawrence Susskind
   Associate Professor and Department Head
   Department of Urban Studies and  Planning
   Massachusetts Institute of Technology
   77 Massachusetts Avenue
   Cambridge, MA 02139
       (617)253-2026

  The Laboratory of Architecture  and  Planning,  MIT, supports several ac-
tion/research  projects The  Environmental Impact  Assessment Project explores
ways  of making EIA  procedures more useful  to decisionmakers and  involving
various sectors of the public in the EIA process. It also produces the Environmental
Impact Assessment Review (Plenum  Publishers, New York City). The Environmen-
tal Mediation Project monitors and evaluates environmental mediation experiments
throughout the United States and has produced working papers aimed at building
environmental  dispute resolution theory. The Environmental Negotiation Project is
examining ways in which conflict management, negotiation, and bargaining can be
employed throughout the regulatory  process. This project is producing a series of
case studies for EPA, a textbook on environmental dispute resolution, and training
materials for professionals in environmental regulatory roles.
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   Wisconsin Center for Public Policy
   Environmental Mediation Project
   1605 Monroe Street
   Madison, Wl 53711
       (608)257-4414
       Howard S Bellman, Project Director
       Cynthia Sampson, Project Coordinator

  The Environmental Mediation Project of the Wisconsin Center for P
primarily engages in site-specific mediation  Cases have included si
siting of waste disposal and other facilities, wetlands development
rights,  dam  maintenance  and  operation,  objectionable  industr
residential water supply  The Center has also conducted policy dia>
with  parallel generation of electricity and RARE II wilderness design
staff  have consulted with Federal and State agencies and legislate
mediation can  play in siting  hazardous and solid  waste disr.
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