PART E:

CONFLICT RESOLUTION IN INTEGRATED COASTAL AREA MANAGEMENT

4. Alternative dispute resolution techniques

4.1 THE MAIN TECHNIQUES

The main `alternative' or `collaborative' techniques for resolving disputes are direct negotiation, conciliation, facilitation, mediation, arbitration and various combinations of techniques such as negotiated rule-making.¹⁴These techniques are discussed in this section; the main features of each are compared in Table E.1.

TABLE E.1

Comparative table of conflict resolution techniques

	Litigation	Arbitration	Mediation	Negotiation
Result sought	Court judgment	Arbitration award	Mutually acceptable agreement	Mutually acceptable agreement
Voluntary/involuntary	Involuntary	Voluntary	Voluntary	Voluntary
Binding/non-binding	Binding (subject to appeal)	Binding (subject to review on limited grounds)	Agreement enforceable as contract	Agreement enforceable as contract
Private/public	Public	Private (unless judicial review sought)	Private	Private
Participants	Judge and parties	Arbitrator and parties	Mediator and parties	Parties only
Third-party involvement	Judge, not selected by parties and usually with no specialized subject expertise, makes decision based on law	Arbitrator, selected by parties and often with specialized subject expertise, makes decision	Mediator, selected by parties, facilitates negotiation process	Parties communicate directly
First steps	One party initiates court proceedings	Parties agree on arbitration and appoint arbitrator	Parties agree on mediation and appoint mediator	Parties agree to negotiate
Approach/methodology	Formal	Less formal	Flexible	Flexible
	Structured by predetermined rules	Procedural rules and substantive law may be set by parties	Usually informal and unstructured	Usually informal and unstructured
	Adversarial	Less adversarial	Non-adversarial	Non-adversarial
Advantages	Application of legal rules may help to address power imbalances	Quicker and cheaper than litigation	Quicker and cheaper Enables creative solutions to be found
		Parties can tailor procedure to suit their needs	Can resolve conflicts over policy issues and/or where clear legal rights/obligations are lacking
		Parties can choose subject matter experts as arbitrators	Parties retain control over process and outcome
			Parties work together to find win-win solutions
			Substantive issues of importance to parties can be addressed
			Decisions can be tailored to needs of parties
			Parties can directly contribute expert understanding and expertise
			Agreement more likely to be implemented and future problems solved in non-adversarial way
			Mediation, in particular, can restore communication between alienated parties and break deadlock
Disadvantages	Slow and expensive	Parties relinquish control over final decision	Power imbalances may be enhanced
	Reinforces conflict between parties; may result in further litigation	Success depends on competence of arbitrators	Agreement may not be reached
	Decision restricted within narrow legal parameters	No appeal against decision (usually)	Failure to implement agreement may necessitate enforcement through courts
	Parties relinquish control over process and decision
	Inappropriate for disputes involving wider policy issues

4.1.1 Direct negotiation

Negotiation is a process in which the parties to the dispute meet to reach a mutually acceptable resolution. Each party represents its own interests.

4.1.2 Conciliation

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.

4.1.3 Facilitation

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.

4.1.4 Mediation

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' (Fuller, 1971).

The main advantages of bringing in a neutral outside party to mediate in a dispute (in addition to the general advantages of ADR outlined above) are as follows:

the mediator can facilitate communication between the parties and restore communication between alienated parties, breaking any deadlock that may otherwise block the resolution of the conflict;
the mediator can help the parties to discover common interests, which they may otherwise be unaware of, and thus reach solutions that take these common interests into account;
the mediator can expedite the negotiations, stimulate the parties to suggest creative settlements, help them to assess settlement alternatives realistically and generally assist them in reaching a better agreement;
where there is a mass of conflicting scientific information and statistics which must be unravelled in order for a decision to be made, mediation techniques can be used to facilitate a more cooperative approach, because a mediator can identify the uncertainties and suggest ways of reducing them (for example, by agreeing to a research project whose terms of reference and methodology are set in advance by all concerned Ð its results would be less partisan and therefore more likely to be accepted, improving the chances of the issues being discussed and resolved on their merits);¹⁵
the mediator can provide new information and bring in a neutral perspective to problems of drafting.

4.1.5 Arbitration

Arbitration is usually used as a less formal alternative to going to court.¹⁶It 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.

4.1.6 Negotiated rule-making

Large disputes over public policy are increasingly being resolved using processes based on mediation and negotiation, commonly referred to as negotiated rule-making or regulatory negotiation. 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. Examples of how such processes have been used in practice are set out in Boxes E.1 and E.2.

BOX E.1

The British Wind Energy Association Guidelines

Wind energy developers are increasingly looking to the coast and out to sea for new locations for the siting of wind energy turbines. In such locations, exposed to high winds, turbines can provide maximum returns in terms of cost-effectiveness. But they can also interfere with a number of other users of the area, including wildlife, and thus give rise to conflicts.

The British Wind Energy Association (BWEA) found that their plans to build wind generators met a lot of opposition, including from environmental groups, many of which support the development of renewable energy resources. In 1994, in an attempt to improve its image by demonstrating its commitment to responsible and sensitive development, BWEA produced new development guidelines with the involvement of a broader range of interested parties, including groups opposed to wind energy. Although the process was viewed initially with suspicion from both sides, it was ultimately successful.

The process

Selection of a mediator. The consensus-building began with the selection of a mediator. Financial assistance from the government helped to fund the process.
Interviews with stakeholders. About fifty telephone interviews were carried out with main stakeholders such as planners, the Countryside Council for Wales and the Landowners' Association, which helped to identify the main issues.
First workshop. After the interviews, a workshop was held to develop the criteria for what should be included in the guidelines. Twenty-five people attended the workshop, including all those who had been invited, among which were the strongest opposition groups. The ground rules were agreed and it was made clear that participation did not necessarily lead to endorsement of the guidelines. However, the participants agreed to express their support for the process and the end product.
Second workshop. The first draft of the guidelines was prepared by BWEA and was then examined, paragraph by paragraph, at a second workshop. The final text was then agreed.
Monitoring. Once the process of agreement was complete, the parties began to plan the next stage, which was to monitor the use and effectiveness of the guidelines.

Reaction of the parties

Although many participants were initially suspicious of the exercise, they found that their opinions were valued and respected, even if not always agreed with. One established opponent of all wind energy developments was even noted as stating how valuable and enjoyable the process had been. BWEA had expected to have to defend many of its positions and challenge the other participants on several issues, but this rarely happened and the participants were able to raise the issues themselves. Having agreed to create a safe and confidential environment in which they could find the best solutions, the participants were able to develop their thoughts and concerns with ease.

The end of the exercise

The guidelines produced by BWEA were produced in November 1994. Another benefit of consensus-building then became apparent. The guidelines were not attacked by opposition groups, as such guidelines often are, because the key stakeholders had been involved in the process of developing them and broadly agreed with their content.

Source: Environment Council, 1995c.

BOX E.2

The 1980 Arizona Groundwater Management Act

This Act illustrates how the negotiated rule-making procedure was used to overcome some typical procedural obstacles to the resolution of conflict in the enactment of an important piece of legislation affecting the interests of a number of parties.

The history behind the Act was one of years of conflict between farming, mining and urban interests resulting from the depletion of Arizona's groundwater supplies from overextraction. After months of negotiations facilitated by the then Governor of Arizona, the affected interested parties reached an agreement and drafted the Act which was passed six days later. It was the first time that a state legislature had successfully resolved a groundwater management controversy. The procedural obstacles that had prevented agreement being reached were:

Strategic voting. Sometimes legislators vote contrary to their true preferences, based on predictions of how other legislators will vote on competing alternatives, in order to achieve their second-best outcome. This creates uncertainty and can be a barrier to cooperative dispute resolution which requires open, honest communication about preferences and a willingness to accommodate the interests of other parties.
Bargaining through the mass media. Politicians often appeal to the media to push their legislative agenda. The media become a filter for information but, being motivated by the desire to create a story, they tend to exaggerate differences and polarize parties' positions, consequently hindering open honest communication between the parties and limiting the opportunities for cooperation.
Bargaining through elected representatives. Where interested parties do not participate directly in legislative debate over policy but through an elected representative, the latter may have different incentives, and even conflicting interests, to the groups in conflict. Consequently, legislative decision-making is not determined by the interests of conflicting groups but by other political considerations.

These barriers were overcome, through negotiations, using the following strategies:

Unanimous decision. Decisions were only taken by consensus, encouraging reluctant parties to negotiate and seek solutions that everyone could support rather than engaging in strategic behaviour and forming splintered coalitions. Because the parties had more control over the process, they also felt more satisfied with and committed to the group's decision, making its successful implementation in practice more likely. However, in order for this rule to work, the prospect of no agreement must be worse for all parties than a negotiated settlement. Parties may be tempted to use veto power to block a resolution. In addition, as the number of negotiating parties increases, the unanimous decision rule may become impractical.
Negotiation in private. The negotiations were conducted in private, away from the press, whose potentially destructive influence was thus avoided. The parties could address the press together after decisions had been made. When parties are free to discuss their positions informally, out of the public eye, there is usually greater opportunity for agreement, as they can explore alternatives and find mutual interests without adopting rigid positions.
Mediation by a politician. By acting as a mediator rather than an agent, a politician (the State Governor) with the requisite skills and the necessary respect and trust of the parties, was able to facilitate the negotiations, guiding the parties towards agreement, while using their political position to influence the parties.

Source: Melling, 1994.

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.'¹⁷

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.'¹⁸

4.2 CHOOSING THE MOST APPROPRIATE STRATEGY

It is not possible (or desirable) to lay down rigid rules as to when each method of conflict resolution should or should not be employed. The best process for a particular dispute will depend on the parties concerned, the interests at stake and the resources involved.

Although time and money are significant considerations, the quickest and cheapest method may not always be the best. The following considerations should also be taken into account in choosing a process:

the nature of the conflict and the number of parties involved;
the stage the conflict has reached;
the type of relief sought;
the extent to which a creative result is sought;
the extent to which the parties prefer to be guided by their own notions of fairness as opposed to some objective standard;
the present relationship of the parties and the value they place on their future relationship;
the extent to which the parties need to cooperate in implementing or complying with a solution;
whether the parties require to be listened to, to participate actively in the process and retain control over the outcome;
the need for a final result (and the avoidance of appeals or other challenges to that result);
whether it is desirable to establish a principle to govern the resolution of future disputes, and how suitable the particular dispute is for establishing such a principle.

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.'¹⁹

¹⁴ These terms are used slightly differently by different countries or writers, etc. For example, the terms `facilitation' and `conciliation' are often used to mean mediation.

¹⁵ In any case, the independent opinion/advice of an expert may be of value in a dispute, particularly in one that raises environmental issues. In addition, some conflicts arise from ignorance, and educating the parties as to the effects of their activities may help to diffuse the conflict and find realistic solutions.

¹⁶ However, the term `arbitration' serves a broad spectrum of dispute resolution processes; it can, for example, be used to describe a mandatory, non-consensual form of dispute resolution imposed on the parties, as well as the voluntary form described here.

¹⁷ Paragraph 28.3.

¹⁸ Paragraph 23.2.

¹⁹ Principle 22.