Posted October 1998
|This Special is taken from "Integrated coastal area management and agriculture, forestry and fisheries: FAO guidlines", (Environment and Natural Resources Service, FAO, Rome, 1998. 256 p). The full publication is available on-line. For a printed copy, contact email@example.com|
The resolution of conflict is one of the central concerns of any legal system and courts may have an important part to play in resolving disputes in coastal areas. Appropriate legislation will be indispensable to the creation of institutional arrangements and the establishment of procedures that reduce the potential for conflict and facilitate the resolution of conflicts when they do arise.
However, traditional "top-down" legislative processes and litigation through the courts have often proved to be ineffective methods of regulating competing interests and addressing conflicts concerning natural resources and the environment. Dissatisfaction with conventional litigation and rule-making processes has led to a growing trend in favour of alternative dispute resolution (ADR) techniques in the context of natural resource and environmental management. These techniques include arbitration, mediation and direct negotiation, and alternative means of regulating to avoid or manage conflict, such as negotiated rule-making. Since these techniques aim to engage the disputants actively in seeking a result acceptable to all the parties involved, they are likely to be more effective in the ICAM context.
Direct negotiation is a process in which the parties to the dispute meet to reach a mutually acceptable resolution. Each party represents its own interests.
Conciliation is a process in which an outside party brings the parties in dispute together for discussion among themselves. Unlike mediation, conciliation usually connotes only preliminary involvement by the outside party. Conciliators do not usually take an active role in resolving the dispute but may help with setting of the agenda, record-keeping and administration, and may act as a go-between when parties do not meet directly, or as a moderator during joint meetings.
Facilitation is similar to conciliation, being a less active form of mediation. Facilitators may act as moderators in large meetings, ensuring that everyone is able to speak and be heard. They are not expected to volunteer their own ideas or participate actively in moving the parties towards agreement. Facilitation can also be applied at a one-to-one level, to guide an individual through strategic processes such as problem solving, prioritizing and planning.
Mediation is a process during which the parties to a dispute meet together and separately in confidence with a neutral and independent outside party (the mediator) to explore and decide how the conflict between them is to be resolved. The mediator assists the parties in reaching an agreement but has no power to impose a result upon them.
Mediation is commonly defined as a process of settling conflict in which an outside party oversees the negotiation between two disputing parties. The mediator is a neutral party who, although having no ability to give a judgement, acts in some way as a facilitator in the process of trying to reach agreement. The central quality of mediation has been described as "its capacity to reorient the parties towards each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions towards one another".
The main advantages of bringing in a neutral outside party to mediate in a dispute are as follows:
Arbitration is usually used as a less formal alternative to going to court. It is a process in which a neutral outside party or panel of neutrals meets with the parties to a dispute, hears presentations from each side and makes an award or a decision. Such a decision may be binding on the parties if they have previously agreed that it should be. Unlike in court, the parties to the dispute can participate in choosing the arbitrator (who is often an expert in the subject matter of their dispute) and in drafting the rules that govern the process. Arbitration hearings are usually held in private.
Sometimes parties to a dispute use a combined process known as "med-arb", in order to retain the advantages of both mediation and arbitration Ð if the mediator is unsuccessful in resolving the dispute through the agreement of the parties, then the mediator becomes an arbitrator with power to issue a binding decision.
Negotiated rule-making, or regulatory negotiation, is increasingly being used to resolve large disputes over public policy. Representatives of interested parties are invited to participate in negotiations to agree on new rules governing issues such as industrial safety standards and environmental pollution from waste sites.
In many jurisdictions, framework laws are enacted in broad terms but the formulation of regulations to govern their practical application is delegated to an administrative agency. The traditional rule-making process involves a few individuals drafting rules which are then circulated for comment and published. This process, which ignores the collective thinking of the parties directly affected by the rule, often leads to criticism, conflict and ultimately litigation, which can cost time, money and resources, and the rules are also likely to be less workable in practice.
If the consequences of a new rule are addressed before it is promulgated, by changing the rule-making procedures, conflicts can be avoided or resolved. To this end, negotiated rule-making techniques are increasingly being employed. Under these techniques, representatives of parties directly affected by the new rules are invited to participate in negotiations to agree on their content before they are made. The main advantages of negotiated rule-making are that it can reduce costs, delays and court challenges and promote policies that are more easily implemented because they are more acceptable to the parties involved. The main barrier to its implementation is the reluctance of rule-makers to relinquish control over rule-making.
The principle behind negotiated rule-making is supported in Agenda 21. For example, Chapter 28 "Local Authorities' Initiatives in Support of Agenda 21" calls on local authorities to enter into a dialogue with their citizens, local organizations and private enterprises in adopting "a local Agenda 21":
"Through consultation and consensus-building, local authorities would learn from citizens and from local, civic, community, business and industrial organizations and acquire the information needed for formulating the best strategies."
Chapter 23, entitled "Strengthening the Role of Major Groups",
"recognizes that: One of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision-making. Furthermore, in the more specific context of environment and development, the need for new forms of participation has emerged. This includes the need of individuals, groups and organizations to participate in environmental impact assessment procedures and to know about and participate in decisions, particularly those that potentially affect the communities in which they live and work."
In addition, when dealing with disputes over natural resources, cultural values and principles must not be overlooked. Understanding and managing conflicts are culturally sensitive issues and depend on the context in which the conflicts occur. Similarly, the various approaches and tools of conflict management may not be directly transferable from one culture or region to another; traditional practices and principles have a vital role to play in the management of conflict and must always be considered. Furthermore, as stated in the 1992 Rio Declaration on Environment and Development:
Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.