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5. The process of alternative dispute resolution


It is possible to identify certain requirements that must be satisfied if a dispute is to be resolved successfully based on consensus or cooperation. Although they may vary slightly in the particular circumstances of each case, these requirements can be summarized as follows:

5.1.1 Voluntariness

The parties should be free to participate in or withdraw from a process. They, rather than an outsider, should come to a decision about which path to pursue to resolve the dispute. In addition, the interested parties themselves, not outsiders, should set the agenda. They are then more likely to engage in the process openly rather than defensively, thus increasing the chances of resolving the conflict permanently. Following on from this is the requirement that both or all parties want to reach a settlement. Fundamental divisions based on clashing values, where parties are divided over a matter of principle (e.g. whether a coastal tourist complex should be built at all, rather than simply where it should be built) and remain entrenched in their positions, may be impossible to resolve through ADR.

5.1.2 Opportunity for mutual gain

Linked to the voluntariness requirement is the requirement of opportunity for mutual gain. As stated above, conflict resolution is a process by which two or more conflicting parties make themselves better off through cooperative action. If one or both believe that they can achieve a better outcome through unilateral action, they will not be willing participants in a process of cooperative conflict resolution. Fuller (1971) described this, in the context of mediation, as the need for Òsome strong internal pull towards cohesionÓ and Òan intermeshing of interests sufficient to make parties willing to collaborate in the mediational effortÓ.

5.1.3 Participation by all interested parties

In order to develop consensus, all interested parties should have an opportunity to participate in the process that creates the consensus. If an interested party is excluded from the process, it may feel it has no stake in the final result and consequently will not only refuse to support it but may even resort to the courts to fight it. It is therefore usually in everyoneÕs interests to include anyone in the process who could later challenge the settlement and thus prevent its implementation. Furthermore, when all affected parties are at the table, there is a better chance that all the relevant issues will be raised.

5.1.4 Identification of interests

It is important, in working towards consensus, to identify interests rather than positions. Conflicting parties often engage in positional bargaining, sticking rigidly to their own positions without hearing or understanding the interests of the other parties. This creates confrontation and a barrier to consensus. It is therefore crucial to get down to the conflictÕs real issues and find areas of common interest between the parties which can open the way for agreement.

5.1.5 Development of possible solutions and options

A common barrier to successful conflict resolution is a psychological phenomenon known as Òreactive devaluationÓ. This is when a concession or proposal made by a perceived adversary is received less favourably because of its source, just as a compromise that is suggested by the other side is valued less highly because it comes from the other side. An important part of a conflict resolution process is therefore the neutral development of possible solutions and options in an atmosphere without evaluation and judgement. A neutral third party can be a great asset to the process, as it can put forward ideas and suggestions from a neutral stance.

5.1.6 Capability of parties to enter into and carry out an agreement

Not only must the issue be capable of resolution through modification of perceptions, attitudes and/or behaviour, but the parties themselves must also be capable of entering into and carrying out an agreement. The enforceability of negotiated agreements is covered in Section 5.2.2.


5.2.1 Representation of interests

It can be very difficult, particularly in environmental/natural resource disputes, to decide who should be represented in the negotiations, especially when a decision is likely to have an effect on people far removed from the locality in space and/or time (for example, future generations). Where a large number of interests are involved, coordination of a collaborative dispute resolution process becomes more complicated, unwieldy and difficult to manage. It may also be difficult to build up trust between the parties where there are too many participants. Even if the key parties reach an agreement that they are pleased with but that fails to take into account the impacts on those interests that were not directly represented in the negotiation, further conflict is likely to result in the future.

To overcome these problems it may be necessary to have a system for recognizing groups as legitimate parties for inclusion in an ADR process, and for determining who shall represent them. However, caution is needed in order to strike the right balance between, on the one hand, facilitating the negotiations by barring participants and, on the other hand, ensuring adequate participation of interested parties.

Representatives of interest groups may need to be selected to participate in the process on behalf of the groups. However, when selecting appropriate representatives for large decentralized groups, there may be difficulties, since members may have different viewpoints that cannot be expressed by a single voice or representative. If the group does not have a binding process to select a representative, some factions may object to the final outcome. Among the questions that need to be answered are whether the representative of a small community group should have a voice that counts as much as a delegate from a group with thousands of members. This will usually depend on the nature of the conflict and the circumstances of the particular case.

5.2.2 Enforcement of the agreement

Any agreement reached through cooperative conflict resolution needs to be applicable and enforceable in practice, indeed it may be critical to reaching agreement that the parties know it will be enforced. Assuming the agreement satisfies the requirements of the relevant contract law, it will be a legally enforceable contract. Ideally, the relationship of the parties will be such that failure to comply will result in a return to renegotiation rather than court action. However, in the absence of such a solution, the only recourse may be to seek enforcement of the agreement through a court, and provision may need to be made for this in the agreement itself.

5.2.3 Power imbalances

Views differ as to whether ADR techniques are appropriate when parties are grossly unequal in sophistication or resources. Differences in power may arise from differences in strength of, for example, economic resources, information, advice or personality. In environmental cases, a relative balance of power between the parties occurs only in about 10 percent of conflicts, and almost invariably the representatives of environmental interests are at an economic disadvantage vis-^-vis, for example, powerful industrial interests.

If the power imbalance remains, then the less powerful party risks being overwhelmed by the more powerful one, since any settlement will be based on bargaining and will accept inequalities of wealth as an integral and legitimate component of the process. It has been argued that neutralizing the power imbalance by an independent third party, risks compromising the impartiality of the third party. On the other hand, there are situations in which the balance of power must be evened out before an effective agreement can be reached (e.g. where a state proposes granting a concession to a private company in an area traditionally occupied by indigenous people without recognizing the land rights of the indigenous people). This is for reasons of equity but also to ensure effective implementation of the agreement and avoid unwanted consequences such as violence.20 Power disparities can be minimized through awareness raising, capacity building, information dissemination, etc. to provide access to expertise (for example, legal or technical advice) to those to whom it is otherwise not available.

Sometimes, court action may better serve the interests of the disadvantaged party, as it can take inequalities into account, but this will only be the case where there is a question of protecting legal rights. Where legislation is an alternative, for example to decide on the siting of a locally objectionable project, it may not be any better for the weaker party, as legislatures often respond to the political power of lobbyists and interest groups. Negotiated rule-making may help to overcome this problem but may still require the provision of support (e.g. funding) to less powerful parties to enable their participation.

It is sometimes maintained that, where power is very unbalanced, the building of alliances to help strengthen the hand of the weaker group or working to strengthen equity through the legal structure may provide more lasting results than fostering a negotiation process that may yield Òcoerced harmonyÓ in which the weaker party ultimately loses.

5.2.4 Funding

In many conflicts involving environmental and natural resource issues, the parties will often not have adequate financial resources to fund conflict resolution efforts, such as the cost of appointing a mediator or experts, or simply for running the negotiation. Consideration should therefore be given to establishing funding mechanisms for conflict resolution as part of any ICAM initiative.21

5.2.5 Involvement of third parties

In any conflict resolution process, consideration should be given to the requirement for the services of a neutral party to facilitate or mediate in the dispute. The following are some of the main factors that will need to be taken into account.

Number of parties. Mediation in general is best suited to disputes involving only two parties. Where there are many different interests competing for a scarce resource, for example, it is much more difficult to conduct straightforward mediation to decide on how to allocate the resource. However, such multiparty disputes over natural resources as arise in the context of ICAM can be resolved, and indeed already are resolved, through ÒmediativeÓ procedures, i.e. through consultation with parties whose interests and concerns are then taken into account by the decision-maker. Mediation can also be used as a first stage in multiparty disputes, to encourage parties to come together and help them to identify common interests.

Impartiality. The mediatorÕs impartiality is a fundamental aspect of their role in a negotiation. Any perceived favouritism may lead to the withdrawal of the party that feels prejudiced from the process, as well as undermining the integrity of any agreement subsequently reached. It is generally agreed that a mediator should ensure fairness in the way the process is conducted, but there is much debate as to whether the mediator is also responsible for ensuring that the final agreement is fair. This leads on to the question of accountability.22

Accountability. Opinions vary as to whether a mediator should take responsibility for the fairness of a settlement. Because the decision reached in a mediation is the voluntary product of the parties rather than the mediator, it is generally believed that the mediatorÕs responsibility should be limited to ensuring a fair process and that they are not accountable for the final decision. However, in the United States some states have enacted legislation on liability, requiring mediators to abide by rules established by federal associations. Failure to comply can lead to the cancellation of a mediatorÕs licence, certificate or registration, and violation of statutes or judicial decisions regarding proper mediation procedure can even lead to court action. When mediation is applied to environmental disputes, the question of accountability is more difficult. Decisions may have negative impacts on environmental quality and natural resources, as well as various interests (present and future) that were not represented in the negotiations. Some impacts may not even be known at the time the decision is made.

The guidelines for mediators in environmental disputes, which are laid down to make such mediators accountable, may involve, for example, licensing, certification or registration. The nature of the issues discussed above makes it important that such mediators possess substantive knowledge about the environmental/natural resource and regulatory issues at stake. Licensing agencies could be used to ensure a readily available source of experts and to sponsor publications and programmes to improve the quality of mediation services. Government linkages and support will usually be required to provide systems that deliver mediation and help to fund them.

Confidentiality. Conflicting parties are often more likely to enter a mediation process and participate effectively if they are ensured confidentiality. Issues to be decided in this respect may include: what should be confidential; who should be able to enforce confidentiality; and against whom confidentiality can be enforced.

20 See also Section 2.3.

21 See also Section 6.1.

22 See Susskind, 1981; and McCrory, 1981.

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