DESIGNING A DISPUTE MANAGEMENT SYSTEM
FOR GROUNDWATER DISPUTES IN ONTARIO
A Thesis
Presented to
The Faculty of Graduate Studies
of
The University of Guelph
by DAVID VAN VEEN
In partial fulfillment of requirements
for the degree of
Master of Arts
September, 1999
O David Van Veen, 1999 National Library Bibliotheque nationale 1*1 of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. fue Wdlirigtori OltawaON KlAW OciawaON K1AW Canada Canada
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DESIGNING A DISPUTE MANAGEMENT SYSTEM
FOR GROUNDWATER DISPUTES IN ONTARIO
David Van Veen Advisor:
University of Guelph, 1999 Professor R.D. Kreutzwiser
The purpose of this thesis is to investigate water conflicts and to develop a dispute management system to resolve local water disputes in Ontario. This system, which encompasses a nwnber of dispute resolution techniques (DRTs) and some related conditions for their use, aims to help people involved in water disputes diagnose a dispute to determine when and why to select and use dispute resolution technique(s).
Dispute factors or contextual influences that describe conflict situations, such as the number of interested parties and financial limitations, were evaluated to determine when and what DRTs are appropriate in water dispute situations. A two round iterative swey, utilizing people with experiences with local disputes, was used to determine how dispute factors motivate the selection of dispute resolution technique(s). The results indicate that, in the context of a majonty of dispute factors, less formal DRTs of mediation and negotiation were preferred, over more formal approaches, such as arbitration and litigation, as a first attempt toward reaching a settlement. However, if less forma1 DRTs prove inadequate, more formal techniques are preferred for reaching an agreement with the provision of looping back to less forma1 techniques. ACKNOWLEDGEMENTS
A heartfelt thank-you goes to Dr. Reid D. Kreutzwiser for his patience, advice, assistance, and concern, as my advisor. The hours spent editing and consulting will not be forgotten. Our fnendly chats, your encowaging words and sorne mean stick handhg in the corners will be fondly remembered. Also, a big thank-you goes to Dr. Rob de Loe, my cornmittee member, for contrïbuting his insights, hours of patient editing, eye opening flowcharts, and enthusiasm. Guys, 1 couldn't have asked for a better pair to work with.
I would like to thank the many respondents who contributed valuable time and effort to complete some lengthy questionnaires. It was through contributing your opinions and thoughts that enabled this research to be successfiilly completed. This research was made possible through the fuiancial assistance of the Ontario Ministry of Agriculture,
Food and Rural AfXairs (Environment and Natural Resources Program) and the Latornell
Scholarship Fund.
Last, but not least, a big hug and very special thanks to my wondefil wife
Margaret who encouraged me through some stressfiil times. Honey, these last couple of years will be remembered fondly because of yow love, your smile and your support. 1 love you very much and 1 couldn't have done it without you. TABLE OF CONTENTS
ACKNOWLEDGEMENTS...... i .. TABLE OF CONTENTS...... II LIST OF TABLES...... v LIST OF FIGURES...... vii LIST OF BOXES ...... vii CHAPTER ONE: INTRODUCTION...... 1 1-1 RESEARCH CONTEXT ...... 1 1.2 PURPOSE AND OBJECTIVES OF THE RESEARCH ...... 4 1-3 STRUCTURE OF THE THESIS ...... 4 CHAPTER TWO: CONTEXT FOR THE RESEARCH ...... 6 2.1 INTRODUCTION...... 6 2.2 CONFLICT THEORY AND THE ROLE OF DISPUTE RESOLUTION ...... 6 2.2.1 Attitudes Toward Conflict ...... 7 2.2.2 Confiict, Human Needs, Values, and interests...... 9 2.2.3 Conflict and the Nature of Power ...... 14 2.2.4 Public Disputes ...... 15 2.2.5 The Role of Conflict Resolution ...... 16 2.3 RESOURCE MANAGEMENT AND THE RESOLUTION OF LOCAL WATER DISPUTES IN ONTARIO ...... 20 2.3.1 Water Disputes in Ontario ...... 20 2.3.2 Conflict and the PTTW Program ...... 22 2.3.3 Summary ...... 24 2.4 DISPUTE SYSTEM DESIGN ...... 24 2.4.1 Designing Dispute Systems for Resource Disputes ...... 29 2.4.2 Preliminary Dispute Factor Classification Scheme...... 33 2.5 SUMMARY ...... 35 CHAPTER THRJ3E: RESEARCH DESIGN ...... 37 3.1 INTRODUCTION...... 37 3.2 RESEARCH APPROACH ...... 37 3.3 "DISCOVERING COMMON GROUND" A TWO ROUND ITERATIVE QUESTIONNAIRE ...... 39 3.3.1 The First Round Questionnaire ...... 40 3.3.2.1 The Pilot S tudy ...... 42 3-3 -2 The Second Round Questionnaire...... 43 3.3.2.1 Part One: Importance Testing of Dispute Factors..... 43 3.3 -2.2 Part Two: Selection of Dispute Resolution Techniques for Dispute Factor Statements ...... 45 3.4 THE RESPONDENT GROUP ...... 49 3.4.1 Selection of Respondents...... 49 3 A.2 Number of Respondents ...... 51 3.4.3 Background Characteristics of the Respondent Groups ...... 52 3.5 ANALYSIS OF QUESTIONNAIRE DATA ...... 55 3.6 SUMMARY...... 58 CHAPTER FOUR: EVALUATION OF QUESTIONNAIRE DATA ...... 60 4.1 INTRODUCTION...... 60 4.2 BACKGROUND DISPUTE FACTORS ...... 61 4.2.1 Experience with Background Dispute Factors ...... 61 4.2.2 Importance of Background Dispute Factors ...... 63 4.2.3 Selecting a Dispute Resolution Technique for Background Dispute Factor Statements ...... 66 4.3 SITUATIONAL DISPUTE FACTORS ...... 70 4.3.1 Experience with Situational Dispute Factors ...... 70 4.3.2 Importance of Situational Dispute Factors ...... 72 4.3 -3 Selecting a Dispute Resolution Technique for Situational Dispute Factor Statements...... 74 4.4 CAPABILITY DISPUTE FACTORS ...... 77 4.4.1 Experience with Capability Dispute Factors ...... 77 4.4.2 importance of Capability Dispute Factors ...... 79 4.4.3 Selecting a Dispute Resolution Technique for Capabiiity Dispute Factor Statements ...... 81 4.5 WATER RESOCTRCE DISPUTE FACTORS ...... 85 4.5.1 Experience with Water Resource Dispute Factors ...... 85 4-52 importance of Water Resource Dispute Factors ...... 87 4.5.3 Selecting a Dispute Resolution Technique for Water Resource Dispute Factor Statements...... 90 4.6 SUMMARY...... 92 CHAPTER FIVE: DESIGMNG A DISPUTE MANAGEMENT SYSTEM..... 96 5.1 INTRODUCTION...... 96 5.2 DEFIMNG THE WHEN, WHAT AND HOW OF THE DISPUTE MANAGEMENT SYSTEM...... 97 5.2.1 Determining an Initial Selection for a DRT ...... 98 5 .2.2 Respondent Reasons for Selecting DRTs ...... 102 5 .2.3 Respondent Selections for Second Choice DRTs ...... 105 5.3 SYSTEM OF DISPUTE RESOLUTION TECHNIQUES ...... 106 5.4 PROPOSED DISPUTE MANAGEMENT SYSTEM ...... 109 5.5 PRINCIPLES OF THE DISPUTE MANAGEMENT SYSTEM...... 114 5.6 SUMMARY ...... 117 CHAPTER SUC: CONCLUSIONS...... 118 6.1 INTRODUCTION...... 118 6.2 RESEARCH OBJECTIVE ONE ...... 118 6.3 RESEARCH OBJECTIVE TWO ...... 119 6.4 RESEARCH OBJECTIVE THREE ...... 122 6.5 FUTURE RESEARCH OPPORTUNITES...... 122 REFERENCE LIST ...... 124 APPENDIX A ...... 132 APPENDIX B ...... 144 APPENDIX C ...... 177 LIST OF TABLES Table 2.1 : Power in Conflict Situations...... Table 2.2. The Complex Nature of Public Disputes ...... Table 2.3. Atîributes of Selected Dispute Resolution Techniques ...... Table 2.4. The Preliminary Dispute Factor Classification Scheme ...... Table 3.1 : Selected Case Studies Describing Worst Case Manifestations of Dispute Factors ...... Table 3.2. Round One and Round Two Respondent Numbers ...... Table 3.3 : Numbers of Respondents by Professional Background ...... Table 3.4. Respondent Professional Experience by Profession ...... Table 3.5. Respondent Experience with Dispute Factors ...... Table 4.1 : Respondent Group Experience with Background Dispute Factors ...... Table 4.2. Importance of Background Dispute Factors ...... Table 4.3: Selection of a Dispute Resolution Technique for Background Dispute Factor Statements ...... Table 4.4. Respondent Group Experience with Situational Dispute Factors ...... Table 4.5. Importance of Situational Dispute Factors ...... Table 4.6: Selection of a Dispute Resolution Technique for Situational Dispute Factor Statements ...... Table 4.7. Respondent Group Experience with Capability Dispute Factors ...... Table 4.8. Importance of Capability Dispute Factors ...... Table 4.9: Selection of a Dispute Resolution Technique for Capability Dispute Factor Statements ...... Table 4.10: Respondent Group Experience with Water Resource Dispute Factors... Table 4.1 1 : Importance of Water Resource Dispute Factors ...... Table 4.12: Selection of a Dispute Resolution Technique for Water Resource Dispute Factor Statements...... Table 5.1 : Linking Dispute Factors with Dispute Resolution Techniques ...... Table 5.2: Charactenstics of Dispute Resolution Techniques fiom Respondent Cornments...... Table 5.3: Linking Second Choice Dispute Resolution Technique Selections with Dispute Factors...... - - ...... - ...... - ...... 1O5 Figure 3.1 : Exarnple of a First Round Question...... Figure 3 -2: Importance Dispute Factor Statement ...... Figure 3 -3: Example of a DRT Selection Question...... Figure 4.1 : Overall Fhtand Second Choice Selections of a Dispute Resolution Technique for Background Dispute Factor Statements...... Figure 4.2: Overall First and Second Choice Selections of a Dispute Resolution Technique for Situational Dispute Factor Statements...... Figure 4.3: Overall First and Second Choice Selections of a Dispute Resolution Technique for Capability Dispute Factor Statements...... Figure 4.4: Percentage of Respondent Group that Expenenced Dispute Factors for Each Type of Water Dispute...... -...... Figure 4.5: Overall First and Second Choice Selections of a Dispute Resolution Technique for Water Resource Dispute Factor Statements...... Figure 4.6: Percentage Respondent Support for Dispute Resolution Techniques with Al1 Dispute Factor Statements...... Figure 5.1 : Nwnber of Second Choice DRT Selections for Negotiation and . Medlation...... ,...... -. . - ...... Figure 5.2: Nurnber of Second Choice DRT Selections for Arbitration and .. . LItigation...... - ...... - .... Figure 5.3: System of DRTs ...... Fisure 5.4: Some Dispute Factors to Consider When Selecting Dispute Resolution Technique(s) (DRTs) ...... 1 12
LIST OF BOXES Box 2.1 : Four Types of Conflict...... 13 . . Box 2.2: Sources of Public Disputes...... 32 Box 3.1 : System Used to Analyze Respondent Ratings...... 57
vii CHAPTER ONE
INTRODUCTION
1.1 RESEARCH CONTEXT
Water resource use today faces formidable problems. A high demand for water resources is accompanied by different perceptions of its value, concem over natural and human environments affected by water development, and conflicts over the use of wat er (Dorcey, 1992). Vague, fkagrnented and overlapping government policies, weak regulations, and lengthy, inefficient dispute resolution procedures exacerbate these problems. Water resource planners are responding by seeking to increase possible benefits of water resource developments while attempting effectively and efficiently to resolve conflicts that arise with competing interests (Dorcey, 1992).
In Ontario, water resource management has been surrounded by conflict over issues of water quality, allocation and water quantity. Shrubsole (1990) notes that the resolution of water resource conflicts is routed primarily through the court system.
However, many authors have stated that for many disputes the courts are time consuming, expensive and adversarial. Also, many kinds of water dispute cases do not involve infringement of laws or the establishment of legal precedents. Therefore, for reasons of expense, expediency and maintaining relationships, litigation is seen as inappropriate (e-g., Fisher and Ury, 198 1; Bingham, 1986; Dorcey, 1992; Acland,
1995). As a result, alternative avenues for resolving water related disputes have received increasing attention, both nationally and at the comrnunity level.
Alternatives to court action to resolve disputes have been refemed to in the literature as alternative dispute resolution or joint decision-making. Joint decision- making includes such techniques as negotiation, mediation and arbitration. These
techniques are designed to help disputing parties find consensus-based agreements.
These approaches can, in theory, lower the costs of disputing, result in a higher degree
of satisfaction with outcornes, and produce longer lasting agreements than are typically
found in imposed third-party decision-making fonuns such as the coiirts (Ury et al.,
1989; Pruitt et al., 1993; Constantino and Merchant, 1996). However, no one technique can be relied on exclusively to resolve al1 disputes, either within organisations, or in the context of broad societal concerns such as environmental issues. Many authors (e-g.
Sarat, 1976; Arnold and Carnivale, 1992; Pniitt er al., 1992) have detennined that people in conflict situations often utilise a nurnber of procedures when initial attempts to resolve a dispute fail. The sequence can begin with face to face discussions such as negotiation. If this method fails third parties, called neutrals or mediators, may be asked to intervene. Often, it is only when these two approaches fail that parties relinquish control and turn to arbitration, litigation (e-g., court) or independent actions (e.g., stmggle tactics). This progression of dispute settlement approaches typically involves a movement fiom low cost, informal approaches, such as negotiation, to higher cost formal processes, such as litigation. Ah, this sequence entails an erosion of stakeholder control and an increased risk of unfavourable settlements (Fisher and Ury,
198 1; Ury et al., 1989; Avnich and Black, 1994; Constantino and Merchant, 1996;
Hatch, 1997). However, this sequence of procedures is not always employed. The confiict literature is largeiy anecdotal, and provides little theory on the when, why and how to use dispute resolution technique(s). According to the literature, the resolution of disputes ofien involves two phases: dispute diagnosis and irnplementation of a dispute resolution technique(s). Dispute diagnosis may include considering the substance and history of the dispute, the relative positions and interests each party bas taken, and the pemnalities of the various participants. Also, dispute diagnosis can be expanded to include the development of a suitable sequence of dispute resolution techniques (DRTs) to facilitate the resolution of future disputes within organisations and comrnunities. Irnplernentation involves the parties attemptïng to reach an agreement utilising the insight, information and tools as determined in the dispute diagnosis. Dispute diagnosis, according to many authors, is the most important phase of the dispute resolution process (Susskind et ai., 1987; Ury et al., 1989; Avmch and Black, 1994; Constantin0 and Merchant, 1996; Kolb, 1996).
According to Floyd et ai. (1 996), this is also true for natural resourçe related disputes.
Floyd et al. (1 996) and Acland (1995) suggested that the importance of dispute diagnosis has been well recognised in the natural resource management literature. The authors maintain that effective tools are lacking to assess a conflict in terrns of what resolution techniques are applicable and when they should be used.
In Ontario, increasing demands, complexity and uncertainty have generated conflict in the use and govemance of water resources. The sale of water disputes can be large involving many parties encompassing water uses over a wide geographic area
According to Dukes (1 996), large scale disputes are highly complicated ofien involving parties with diRering agendas and varying degrees of decision-making authority. For example, the debate over the export of water resources fiom Canada can involve various ievels of govemment, corporate interests, non-govemrnent agencies and interested private citizens. Altemately, Dukes (1996) stated that small scale disagreements, ted"local" disputes, usually occur within a community involviag a limited number of parties. Also, these parties ofien have less diverse agendas and have authority to make decisions. Parties may include local govemments, residents, local businesses and other interested parties. For example, local water disputes may involve an agriculturd producer and surrounding residents over nitrate contamination of local wells due to fmpractices. Alsa, water disputes cm involve agricultural producers and local govemments when both attempt to secure water resources in close proximity to each other. Overall, while the definition of local water disputes is, in part, related to the spatial distribution of the water rewurces, issues and parties, it is the number of interested parties that determines the scale of the dispute (Dukes, 1996).
According to Waiton and Dutton (1969), disagreements ofien stem fkom local conditions. In water management, local conditions, according to Sanderson et ai-
(1 995). can involve human stresses such as industrial contamination and impacts fkom agricultural uses that cause problems with water quantity and quality for other users of surface and groundwater. Furthemore, although the agricultural sector does not withdraw the most water in relation to other user groups, it is a large consumptive user of water (Kreutzwiser, 1996; Vandierendonck, 1996). According to Goss and Barry
( 1999, agricultural practices routinely affect groundwater resources vital for residential and municipal drinking water supplies and, as Meek (1997) States, this involves many farmers, as disputants, in groundwater-related disputes. 1.2 PURPOSE AND OBJECTTVES OF THE RESEARCH
The purpose of this research is to develop a dispute management system that cm help disputants in small scale groundwater disputes to analyse the dispute and to select an appropriate dispute resolution technique. A dispute management system encompasses a set of dispute resolution techniques withüi a context that helps to determine when, what and how dispute resolution techniques are used. The research contributes to a theoretical understanding of water disputes and how they can be resolved. To develop a dispute management system three specific research objectives are proposed.
1. From the literature, develop a preliminary set of dispute factors that descnbe the context in which water disputes exist. 2. Evaluate the dispute factors and develop a dispute management system. 3. Provide specific recomrnendations for using the dispute management system for local water resource conflicts in rural Ontario.
1.3 STRUCTURE OF THE THESIS
The thesis is organized into six chapters, each of which specifically addresses critical aspects of the research. Chapter Two summarizes knowledge fiom the literature on conflict theory, conflict resolution, and the design of dispute management systems.
Included in this chapter is a classification scheme that categorizes dispute factors that influence the selection of dispute resolution techniques. Chapter Three outlines the research design and methodology. A description of findings f?om a two round iterative questionnaire is presented in Chapter Four. Chapter Five is focused on describing the development of the dispute management system and related principles of use. Chapter
Six presents conclusions and some thoughts on future research. CHAPTERTWO
CONTEXT FOR TEE RESEARCH
2.1 INTRODUCTION
Theory of conflict and the resolution of conflict over public resources, such as water, encompass more than a theory of resolving disputes. Conflict over water resources involves a general understanding of what conflict means, when conflict is valuable, when it is destructive, and how it can be changed to benefit individuals, communities and society. It is about human relationships as they play out between individuals, within groups, withïn communities and in society.
The purpose of this chapter is to discuss and critique literature relevant to the research problem. The chapter begins with a discussion of general conflict theory, including a definition of conflict. This is followed by a discussion of attitudes toward conflict, power relationships in conflicts, the character of public disputes and how conflicts are resolved. Next, conflict in resource management is discussed, with attention to water management and conflict resolution for water disputes in Ontario.
Finally, a discussion of literature relating to the design of a dispute management system is provided.
2.2 CONFLICT THEORY AND THE ROLE OF DISPUTE RESOLUTION
According to Max Weber (1968), a social relationship is in conflict when actors cany out their own will against the resistance of other parties. For Coser (1972,8), conflict is a stmggle over values, statu, power and resources "in which the aims of the opponents are to neutralise, injure or eliminate their rivals". As these and many similar definitions illustrate, conflict is understood to occur when parties compete with each other to secure mutually exclusive outcornes.
Folberg and Taylor (1988) make a distinction between the terms "conflict" and
"dispute", which are often used interchangeably in the literature. According to Folberg and Taylor (1988), "conflict", while broadly encompassing the terni "dispute", is often intrapersonal and unknown except to the individual, while a "dispute" is seen as interpersonal and is cornmunicated or manifested. In other words, the terni "conflict" should be used to refer to al1 disagreements including manifested and/or communicated conflict, which encompasses the term "dispute". However, the term "dispute" should be used when refening to instances where confiict is communicated andor active
Therefore, when discussing theory the term "confiict" is understood to include the term
"dispute". The term "dispute" appears applicable when discussing instances of recognised disagreements. Further, as the definitions of conflict and dispute suggest, there is a tendency to view disputes as destructive.
2.2.1 Attitudes Toward Conflict
Many people have an aversion to conflict. While this may be the prevailing attitude, the literature indicates an evolution fiom a negative, dysfunctional view of conflict, to a more positive, functional one. According to Hatch (1997), early organisational theonsts regarded conflict as dysfunctional. Conflict was generally seen as a sign of a defective or incomplete social structure. Therefore, the response of theorists was to erect organisational structures for dealing with conflict. These often incfuded the creation of cornmittees and task forces. The drawback of this response was that these structures ofien created new and expanded environments within which conflict could occur. This realisation led the way to a new concept of conflict. hstead of advocating conflict avoidance, theorists began to view conflict as a fact of life or as natural (Hatch, 1997). This has led to an emphasis on conflict management.
The naturai view of conflict developed around the thinking of the organisational theorist Lou Pondy. Pondy (1967) suggested that, while conflict may be unpleasant, it is an inevitable part of life and should, therefore, be accepted. This view sparked a theoretical interest in the underlying sources of couflict. Also, this view helped managers confront conflicts that were unavoidable by suggesting that conflict was natural, and not necessarily a sign of misrnanagement (Pondy, 1967). Pondy (1967) and
Follett (1942) also suggested that conflict could be a positive feature in an organisation.
The natwal or fùnctional view of conflict suggests that it can play a positive role in organisations. This view was inspired by the realisation that conflict often "leads to stimulation, adaptation, innovation and to better decision-making through the incorporation of divergent opinions1' (Hatch, 1997, 304). Pondy maintained that conflict is also sociologically and psychologically healthy because it can lead to social change through integrating opposition to the status quo. Conflict can be psychologically healthy because it can provide an emotional release through the venting of frustration, and foster a sense of participation. The functional perspective warns that too little conflict results in apathy, poor decision-making and overall stagnation (Pondy, 1967).
Hatch (1 997) states that many theorists credit conflict with providing the conditions for democracy, through the incorporation of diversit., and the acknowledgement of pluralism. The current state of conflict resolution theory reflects the diverse background of those who have formulated this relatively new discipline. The study of conflict and its resolution transcends spatial, social and academic boundaries. Mathematicians and economists tend to understand conflict through the use of game theory and utility theory. Political scientists view conflict as power issues while sociologists rely on knowledge of group and organisational structure. Psychologists utilise ideas drawn fiom decision theory and cognition, white international relations scholars study conflict through the nation-state. It was with seminal works such as Follett's Creative
Adnlinistrarion (1947), Deutsch's The Resolution of Conflict ( 1978) and Schelling's
Strategy of Conf7ict (1960) that it became common to regard conflict processes as fundamentally alike from one situation to another (Lewiger and Rubin, 1994).
Nevertheless, according to Avruch and Black (1994), this dynamic background has not led to enough common ground to allow for an uncontentious formulation of theory and practice.
2.2.2 Conflict, Hurnan Needs, Values, and lnterests
Conflict theory, as suggested earlier, incorporates research fiom a wide spectrum of disciplines, A compilation of various definitions and characterkations of conflict has revealed a contrast related to the assumptions conceming human nature.
This contrast is essentially between the rational perspective, which assumes that humans make logical infonned choices within conflict situations, and the irrational view, where conflict is thought of as instinctual and pre-determined.
The rational view of conflict focuses on interests, choices, and, to some extent, values. It is a foundational element in mathematical theory (Le., game theory), with the pioneering work of von Neumann and Morganstem (1944), and assumes the person to be rational, maximishg and calculating. Social psychologists have utilised this perspective, in combination with empirical research, to develop bargaining theory, where each disputing party is assumed to be informed, rationally motivated and self- interested (Gulliver, 1979). Organisational theorists largely adhere to the rational view of conflict, with interest-based definitions such as "conflict implies that one or more parties perceive their interests as divergent" (Levinger and Rubin, 1994,202). These theorists also assume that the parties are maximisers or, at the very least, satisficers.
However, for many scholars, conflict lies deeper than the conscious rational mind.
The irrational view of conflict draws on biologicaily-based explanations of human behaviour. Lorenz (1966) explained this perspective best by defining conflict as simply "aggression". Within this paradigm, conflict is internalised, instinctual, detenninistic and, thus, unconsciously, part of human behaviour. Deutsch (1973) followed this line of thinking and stated that confiict primarily involves incompatible behaviours that are connected to needs and values. While behaviour is not considered the sole domain of the irrational mind, behaviow in this view is seen as determined by underlying factors with little rational involvement (Deutsch, 1973). Therefore, according to the irrational view, conflict "exists when two or more parties perceive their values and needs as incompatible" (Tillett, 1991,2). Needs or values are incompatible if meeting them interferes, disrupts or in some way prevents futfilment of others' needs or values (Tillett, 199 1)
Research in the area of conflict theory, involving various disciplines (e.g., international peace research, social psychology, organisational theory), reveal that both the rational and hational perspectives are often aligned with three types of human motivations in conflict situations: needs, values and interests (e.g., Deutch, Ury et al.,
1989; Burton, 1990; Hatch, 1997). Needr are motivations that are primordial, universal and perhaps genetic and are, therefore, essentially nomegotiable. Values are motivations that are culturally-specific, such as customs and beliefs. Interests are motivations that change according to circumstances: the social, political, economic aspirations of individuals and/or groups within society. interests can relate to such things as social roles and material goods and are essentially rationally motivated.
A major criticism of these definitions is that they neglect the importance of psychological aspects of conflict behaviour. Perception, according to social psychologists (e-g., Kelman, 1984; Klineburg, 1986), is fundamental in confiict situations, and is not captured by simply defining human motivations as a combination of needs, values and interests. For social psychologists, disputes entai1 differences in interests at various levels and, as Klineburg (1986) States, hurnan needs often lie at the heart of S~~~OUSconflicts. However, according to Kelman (1984) and Klineburg (1984), psychological factors contribute to the perpetuation and escalation of conflict and they cannot be separated fiom the objective conditions that underlie it. In other words, while social psychology agrees with authors such as Burton (1990) and Deutch (1990) on the distinctions between needs, values and interests, social psychologists believe that needs, values and interests cannot be separated for purposes of resolution. Social psychology research into motives that promote andior escalate conflict points not only to rational motives, but also to the importance of "nonrational emotions" in conflict resolution. White (1984) states that perceptions and emotions distort a process that would othenvise be more rational and predictable.
Psychological research indicates that misperception of the other side is virtually automatic in confiict situations (Peck, 1991). Misperception can occur for several reasons. For exarnple, Jervis (1 985) makes a distinction between unconscious motives and cognitive factors that often distort perceptions. White (1984) highlights the emotions of anger and fear in distorthg perceptions. Deutch (1 990) discusses the tendency for people to perceive their own behaviour as more benevolent and legitimate than that of others. A source for misperception, suggests Pniitt and Rubin (1986), is that parties in conflict ofien diminish their level of communication and therefore reduce their ability to understand each other. This is consistent with Frank's (1967) comment that a lack of communication often intensifies feelings of dislike-
Misperception can be corrected, according to White (1984), through empathy.
Empathy, unlike sympathy, does not entai1 warmth or approval, but it does include a realistic understanding of the thoughts and feelings of others. Empathy, according to
White (1984), is the "great corrective" for many forms of misperception. However,
Jervis (1 985) states that given the dificulty in perceiving another's perspective, it is necessary to empathise with a variety of outlooks. Clearly, it appears that conflict resolution theory should take problems of perception into account. The various definitions of conflict, as discussed earlier, involve to some extent needs, values, interests and behaviour of the parties involved. Dorcey and Riek (1989), in an attempt to apply various characteristics of conflicts to resource management issues, identified four fundamental types of conflict (see Box 2.1): cognitive, behavioural, value and interest conflicts. Cognitive conflicts ofien occur when disputing parties fûndamentally understand a conflict Box 2.1 Four Types of Conflict situation differently, and Cognitive conmcts are associated with different understandings people or groups have about the this can lead to conflict situation. misinterpretations and Behaviounl conflicts are related to the circumstances and the personalities of those associated with the misperceptions by decision- conflict. makers of stakeholder Vdue conflicts stem fiom peoples perceptions, amtudes, vaIues and subsequent actions in a conflict. concerns (Wood, 1976; Interest conilicts pertain to a disagreement conceming the distribution of costs and benefits. Lord et al., 1979). (Lord et al., 1979; Dorcey and Riek, 1989; Mitchell, Behavioural conflicts can 1989; Crider et al., 1993)
O ften arise as a consequence of distnist, historical frustration, emotionalism and restricted perception (Mitchell,
1989). Value confiicts result fiom different and contrasting preferences regarding the substantive elements involved in a dispute (Lord et al., 1979). interest conflicts are manifested when individuats or groups perceive the benefits and costs differently and take steps to protect their interests (Ury et al., 1989).
This classification scheme integrates psychological and social factors for analysing resource dispute situations. However, it lacks the descriptive and analytical advantages that a specific recognition of economic issues, power relationships and resource use patterns can bring. Also, while Dorcey (1991) advocates the use of negotiation in water management disputes, the conflict classification scheme provides little rationale for advocating the use of negotiation over other conflict resolution techniques. 2.2.3 ConfIict and the Nature of Power
Power is the medium in which confiict and its resolution exist (Murray, 1990).
According to Max Weber, power is the ability of actors within a social relationship to cany out their will despite resistance. Traditional theorists, according to Macy (1983), conceive power as "power over" in a social, poiitical and an economic sense, In contrast to the traditional view, others have focused on the importance of power sharing as part of the solution to many codlicts. As a result, they have suggested more elaborate descriptions of power such as, the Ghandian inspired view of power as a reciprocal relationship (Galtung, 1996), and the feminist inspired definition of power as power over means, domination and control (Burrows, 1996).
Power in conflict situations is complex and multifaceted, and manifests itself in many ways. The listing in Table 2.1 illustrates some examples of power and its use in conflict situations. The use of Table 2.1: Power in Conflict Situations power can be overt or a potent Type of Some Examples of Possible Efiect of 1 Power Power latent force. For example, the Economic The ability to cause harm by withdrawing a benefit or increasing ability to cause harm (see costs. Ability to reward the other side for CO-operation. Table 2.1) may fail if used Knowledge possessed or available to promote an interest. overtly, but untried, even if Skills in using DRTs. Political A capacity to invoke authority. 1 the threat is uncornmunicated, 1 The sîrength of officia1 precedents. 1 (Carpenter and Kennedy, 1988; Dukes, 1996) can have a powerful effect on the outcome of a dispute. This, suggests Curle (1971,2 l), is when power has "the capacity -- moral, political, economic or social, or any combination of these -- to make the other fellow think twice". The use of power, according to Dukes (1996), is an unsustainable means of maintaining human relationships. Therefore, in conflict resolution efforts, the use of power through coercion and threat leads to unsusbinable agreements (Ury et al., 1989; Constantino and Merchant, 1996)
2.2.4 Public Disputes
Controversies that involve issues with implications beyond any single private entity such as a family, business, or other organizations are termed public disputes fMcDanie1, 1990). According to many authors, public disputes b~gtheir own unique dynamic (e-g., Carpenter and Kennedy, 1988; Lau et al., 1988; Lentz, 1986; Dukes,
1996). They involve a complex network of interests, goals, positions, values and concept of rights (Carpenter and Kennedy, 1988). A cornparison between labour- management and public disputes highlights some of the complexities and unique attributes of public disputes (see Table 2.2). Lentz (1986) contrasts the clearly defined situations typical of labour-management disputes with the more nebulous issues and contexts that public dispute resolution professionals must contend with. For example, while labour -management disputes can take many forms, the literature suggests the primary issues often are economic, and data are, therefore, readily available (Lentz,
1986). There are two fixed sides to deal with, and they have a mutual goal--to avoid or end a strike. In environmental as well as other public disputes, issues are often much more compIex and may involve mutually exclusive goals and values. Data are often complex and difficult to obtain. Furthemore, many separate parties may be involved
(Carpenter and Kennedy, 1988). Table 2.2 illustrates the di ficuities and complexities inherent in public disputes, which affect the resolution of disputes at the community levei. Table 2.2: The Complex Nature of Public Disputes
Sefected Dispute Attributes of Labour- Attributes of Public and Attributes -- -- Nature of issues Primary issues are Issues and context often econornic. nebulous. Number of sides Usually two fixed sides Numerous parties rnay be to deal with. involved. New parties rnay emerge as new issues surface. Number of issues Each side has at least Complex network of interests. one common issue. Goals rnay be different and unrelated to each other. Power disparities Parties often have fairly Parties have recognized balanced power. different resources and power. Data availabiIity Data rnay be readily Data rnay be complex and available. availability often limited. Relationships Ofien involve working May be little or no continuing between parties relationships. relationship between parties. DRT mechanisms OAen a dispute There rnay be no institutional available resohtion system vehicles for resolving disputes. exists. Nature of values Values ofien are C& involve mutually exclusive compatible. and strongly held values. ter and Kennedy, 1988; Lau e al., 1988; Lentz, 1986; Dukes, 1996)
2.2.5 The Role of Conflict Resolution
Social-psychological research indicates that direct interaction between conflicting parties leads to changes in attitudes and perceptions that facilitate change and empathy. in this view, psychological factors interact with political ones and the two should be integrated into any comprehensive theory of conflict and its resolution.
Consequently, Deutsch (1990) argues that a constructive process of conflict resolution must incorporate elements of a CO-operativeprocess. These elements rnay include good communication, trust, perception of sirnilar beliefs and values, and acceptance of each other's legitimacy (Deutch, 1978; White, 1984; Jervis, 1985; Pruitt and Rubin, 1986).
According to Ury et al. (1989), Burton (1990), and others, a popular subset of dispute resolution techniques (DRTs) includes negotiation, mediation and to some 16 extent arbitration (see Table 2.3). Collectively known as alternative dispute resolution
(ADR)techniques, they incorporate CO-operativeprocesses to resolve conflict situations. For exarnple, trust and good communication are strongly associated with negotiation and mediation and become less important with arbitration (Ury et al.,
1989). in other words, where CO-operationis a significant element in dispute resolution, as it is with negotiation and mediation, trust and good communication will be important. However, co-operation, and thus trust and go& communication, is comparatively less important where people have little input in a settlement and outcornes are decided by a neutral third party (e-g., litigation, binding arbitration).
Alternative dispute resolution (ADR) provides a way of resolving disputes in a consensual manner as an alternative to the traditional court system (litigation). Unlike litigation ADR includes a number of individual techniques that have both different and shared characteristics. Collectively, ADR techniques are viewed as problem solving approaches that can encourage face-to-face interaction and CO-operationbetween interested parties, allow parties to seek consensus, be voluntary and improve prospects for long term relationships (Ury et al., 1989). Where ADR techniques differ is in the scale of intervention that neutral third parties bring to the problem solving process. For exarnple, mediation involves third parties to facilitate communication but mediators do not actively participate in the substantive aspects of the dispute. At the other extreme, binding arbitration utilises the third party as a judge to decide on the outcome.
According to Acland (1 999, binding arbitration is seen by many ADR practitioners as belonging more to litigation than ADR since the parties have almost no control over the outcome. Table 23: Attributes of Selected Dispute Resolution Techniques (DRTs)
Dispute 1 1 &me Attributes of DRTs 1 ~esolution Definition of DRT Technique 1 @Rn I Negotiation. A process whereby two or more Promotes co- rn Some parties may parties attempt to settle what operation. lack negotiation each shall give and take, or Cost efficient. skills. perform and receive in a Promotes open Power balance is transaction between them. process. 1 not assured. 1
Mediation An impartial third party attempts Encourages- 1 rn Process can be 1 l- to keep communication lines participation. expensive. I 1 open, point out areas of I High degree of Participants may agreement, encourage and assist participant control. lack skills. disputants to resolve their Helps create A balance of differences using compromise alternative options. power not assured. and negotiation. Arbitration A process sirnilar to litigation Results in Win-lose outcomes but the decision of the impartial conclusive possible. third party may or may not be decisions. rn Adversarial binding depending on the pnor Supported by Can be lengthy wishes of the disputants. established law process. and legislation. Litigation involves courts and a neutral Conclusive Costly. I third party- - who decides the decisions. 1 Win-lose outcornes 1 I 1 outcorne based on law. 1 Supported by law. 1 cornmon. I (Ury et al. (1989), de Loë and Kreutzwiser, 1998)
A substantial body of literature addresses the application of ADR techniques
(e.g., Fisher and Ury, 1981 ; Susskind and Cruikshank, 1987; McKimey, 1988; Ury et
al., 1989). ADR techniques and their application have been characterised as leading to
"quality decisions" in that they help the parties arrive at decisions which are favourable,
efficient, durable, take community interests into account, and do not significantly
darnage relationships between disputing parties (Fisher and Ury, 1981).
ADR is not a replacement for other dispute resolution mechanisms, such as the
courts or stmggle, but rather is seen as a supplement to these processes. For exarnple,
Ury et al. (1989) argued that interests, rights and power are three fùndamental elements in any dispute and that disputes are resolved by reconciling interests of al1 parties, by
determining who is right and by determining who is more powerful. Problern solving
processes, such as negotiation and mediation, are examples of interests-based
approaches; going to court is an example of a rights-based approach and strike or
struggle are examples of power approaches. However, interest approaches are
considered more rewarding than rights approaches, which in turn are more rewarding to
disputants than power approaches. Ury et al. (1989) advocate the use of interest-based
approaches whenever possible, dong with low cost nghts procedures, such as non
binding arbitration, but also low cost power-centred processes, such as voting. ADR
techniques may not be appropriate where power disparities between parties are large, or
where rights-based approaches such as the courts are more appropnate (Ury et al.,
1989).
There is oflen difficulty in forming groups that represent al1 or most of the
interests in the dispute. Also, where time fiames are restrictive and different
magnitudes of conflict exist, other approaches to conflict resolution may be better
suited (McKinney, 1988; British Columbia Round Table on the Environment and
Economy, 1991). For example, broadly-based disputes with many stakeholders may
require political involvement to resolve disputes in a shorter time fkne than consensus-based techniques can realistically achieve (Johnson and Duinker, 1993).
According to Dukes (1996), the situations outlined above highlight the complexities and difficulties associated with public disputes.
In swnmary, the roles of interests, values, needs and perceptions are complex, and their relative importance in dispute situations is the subject of considerable debate in the literature. However, the literature appears to support CO-operativeprocesses, such as those associated with ADR, for resolving disputes. While rights-based and power- based approaches play roles in dispute situations, the use of techniques based on co- operation, such as negotiation and mediation, are seen as Iow cost and low impact routes to resolution.
2.3 RESOURCE MANAGEMENT AND THE RESOLUTION OF LOCAL WATER DISPUTES IN ONTARIO
The ernerging focus on conflict resolution within the resource management field was recognised by Cemy (1971) when emphasising how conflict can occur over different perceptions of the sarne resource. Wood (1976) also identified conflict occumng in resource management between a cornmunity and resource managers.
According to Mitchell ( 1989), increashg demands, complexities and uncertainties are being encountered in resource management, and these are creating confiict situations.
Research to identifi strategies to resolve resource conflicts appears timely as increased public participation and shared decision-making requirements become recognised and mandated.
2.3.1 Water Disputes in Ontario
The federal govemment has secondary responsibility for water resources in
Canada, through legislation such as the Fisheries Act and the Navigable Waters
Protection Act (Pearse et al.. 1985; Percy, 1988). It is the province which has constitutionally mandated prim=iry control over water resources within Ontario. Thus, the role of rnanaging groundwater (and surface water) falls within the jurisdiction of the
Ministry of Environment (MOE). The MOE controls the allocation of groundwater resources through the Permit To Take Water program, or PTTW prograrn for short, which was developed under the Ontario Water Resources Commissions Act in 196 1
(Percy, 198 8). The focus of the program is to control the taking of water "through a permit systern which involves the regulation of withdrawals and settlement of interference complaints" (Ministry of the Environment, 1984). With increasing demand for this resource in Ontario concern is increasing about possible detrimental impacts associated with misuse (Ontario Ministry of the Environment, 1984).
The MOE identifies three main reasons justimg the need to protect groundwater and surface water: first, groundwater is an important component of stream flow; second, water quality is often a function of water quantity; and, third, the control of water quantity is needed to avoid conflicts among users (Ontario Ministry of the
Environment, 1984). The Ministry maintains that the fair allocation of groundwater resources through the PTTW program results in less rnisuse of groundwater resources and thus less conflict among its many users (Ontario Ministry of Environment, 1984).
The PTTW program operates within the cclntext of comrnon law principles, including the principles of riparian rights (for water that flows in known and defined channels), and the principle of "capture", for percolating water. Riparian rights do not allow the ownership of water. Instead, landowners have the right of access to water that abuts their land, which "includes the right to receive water flowing past in undiminished quantity and quality and the opportunity to take action against those who interfere with these rights" (Pearse et al., 1985)- Riparian nghts only apply to groundwater if it flows in an underground "stream". An underground stream, to be subject to riparian law, must flow in a known and defined channel. in Ontario, most groundwater is percolating and only in rare cases is it a horizontally bond system such as a defined underground "stream". Thus, most groundwater in Ontario is subject to the cornrnon law rule of capture. Both surface and groundwater are subject to the Ontario
Water Resottrces Act, and thus the PTTW, but common Iaw principles remain applicable. Consequently, both statute law and, in limited situations, nparian law, have a role to play in the management of Ontario's groundwater (Percy, 1988).
2.3.2 Conflict and the PTTW Program
The taking of water in Ontario is legislated under section 20 of the Ontario
Water Resources Act (1961). With only a few exceptions, a permit is required (through the PTTW program) when groundwater or surface water withdrawals, or any combination, exceed 50,000 litres per day. A permit is required when water is taken for uses such as irrigation, commercial, recreation, municipal, industrial, public and aesthetic uses, for de-watenng quarries and grave1 pits, foundation and construction sites, and for taking of streamflow into dam storage structures, diversion, and excavation. Exceptions are withdrawals of water for domestic or livestock consumption, even if the amount of water withdrawn exceeds 50,000 litres per day
(Ontario Ministry of Environment, 1984). In spite of the permit process, cornplaints of interference are not uncommon.
The Ministry of the Environment (1 984) documented the sources of conflict as reported through the PTTW program. Termed interferences, reported interruptions to water supply can include a variety of causes, many of which can not be resolved within the current policy. For example, if a disruption in supply to a tiee flowing well occurs as a result of other permitted withdrawals, restoration of supply to that well is required.
However, if the disruption is due to withdrawals associated with domestic or livestock purposes, or if the removal rate is less than 50,000 litres per day, the Ministry can do
little to force a change. Faced with this problem, the Ministry will ofien request that the
affected parties CO-operateto resolve the situation and restore flow to the affected well.
If CO-operationdoes not occur, the conflict essentially rernauis unresolved and the
existing well may be denied supply in spite of PTTW program approval to taice water
(Hofmann, 1994).
Goodwin (1 989) notes that many interference cornplaints stem from ignorance on the part of the water user. For example, breakdowns of water intake mechanisms were oflen the source for reported interference, but, according to the PTTW program, this situation does not constitute interference. Also, a lack of understanding of natural cycles, such as drought, floods and aquifer recharge time, by water users were cited as other causes of reported supply interference (Goodwin, 1989).
Groundwater supply eonflicts may also arise as a result of PTTW prograrn administration and enforcement. The PTTW prograrn is enforced on a cornplaint basis.
This rneans that there is limited proactive monitoring of groundwater use rates.
Therefore, the Ministry cannot be certain that permit holders are abiding by the terms of permitted withdrawals, or that groundwater users even have a permit (Leadlay and
Kreutzwiser, 1999). This means that the Ministry often has incomplete information on current withdrawals in a groundwater system and therefore can approve withdrawals greater than the amount of water available (Goodwin, 1989).
Hofmann (1994) determined that local residents were generally dissatisfied with the PTTW program and its inability to address important issues such as identiwng conflicting uses and resolving conflicts. As stated earlier, where CO-operationbetween disputing parties fails, the PTTW program has no mechanism in place to resolve conflicts.
2.3.3 Summary
in Ontario the legislation regarding water use provides no satisfactory resolution mechanisms to resolve many kinds of disputes. Many of those affected by water supply interferences are faced with resolving disagreements without the aid of outside intervention. Because the fiterature lacks theory and tools that can help people determine when and why resolution techniques are used, people in water disputes lack a way to analyse a dispute and detemine the most appropriate DRT(s) to reach a settlement. Therefore, a way of determining the why, when and how of dispute resolution technique use appears needed for water allocation disagreements in Ontario.
The process through which these tools and procedures are developed is referred to in the literature as dispute system design.
2.4 DISPUTE SYSTEM DESIGN
Dispute resolution techniques (DRTs) are often used in an ad-hoc fashion.
Viewing the management of confiict and the use of DRTs as a system of tools provides opportunities to learn about the resolution process, the relative strengths and weaknesses of the various DRTs and the core concems of stakeholders (Constantino and Merchant, 1996). A system perspective, as opposed to focussing on the individual use of DRTs, recognises the appropriate use of various techniques and arranges them to answer the needs of the disputants. The objective of dispute systems design @SD) is to organise the various DRTs to resolve disputes arising in a pattern of relationships (e.g., behveen municipalities and fmers) (Acland, 1995). More specifically, dispute system designers "analyse disputes with the intent to develop systems for resolving disputes that minimises costs and maximises benefits to those involved" (Murray, 1990, 106).
An analysis of the literature reveals two approaches to designing dispute management systems: expert driven versus stakeholder driven approaches. Expert driven dispute systems design comrnonly Uivolves autocraîic processes with little input fiom stakeholders. The system is developed by experts and imposed in a given dispute.
The success of this appmach has been criticised since stakeholders' CO-operationis ofien compromised by imposed procedures (Cormick, 1980; Bacow and Wheeler,
1984; Ury et al., 1989; Sander and Goldberg, 1994; Constantine and Merchant, 1996).
A review of procedural justice and social psychology literature indicates that one of the most critical elements of a dispute management system is 'voice' and stakeholder process control. The right to express a viewpoint and have some control over the dispute resolution process is valued because it produces a sense of procedural justice.
Studies have found that a sense of procedural justice is equal to, if not more important than, the gain realised as a result of, or satisfaction with, an outcome (LaTour et al.,
1976; Lind et al., 1980; Lind and Tyler, 1988). Thibaut et al. (1974) stated that without procedural justice, a dispute management system may be perceived as lacking legitimacy and stakeholder involvement in the process would likely result in short lived agreements. They stated that the inclusion of stakeholders in the procedural design process can enhance procedural justice and the effectiveness of a dispute management system. In other words, designing a complete dispute management system fiom the literature and testing it against stakeholder expenences or preferences appears incompatible with prïnciples of procedural justice. Therefore, a stakeholder driven
design is more appropnate.
Dispute systems designers ofien have two main objectives. The first is to help
people, groups, organisations and networks handle disputes amicably, rapidly and
without damaging relationships. The second objective is to train people to engage
conflicts as early as possible before they tum into hostile disputes (Acland, 1995). The
responsibilities of a dispute system designer to fiilfil these objectives are largely ill-
defined and under considerable debate in the literature. For example, according to
Murray (1990), there is little agreement on two main issues: the neutrality of the
designer; and, the role of conflict prevention within the design framework. First, the
neutrality of the designer is tied to the presence of power within the disputing
relationships. Power, according to Murray (1 990), is the medium in which the dispute
system designer works. The debate centres on the responsibility the designer has for
power within relationships. According to Murray (1990), many designers suggest that
there is a responsibility to alert the parties of the potential that new dispute systems may
change power within current relationships, perhaps fùndamentally. Others believe that a
preliminary discussion of power would reduce the likelihood of participation in a new
system (Murray, 1990). A possible solution is to design the system to reflect the
dominating power structures within the relationship. However, this activity would place
the designer as a supporter of the status-quo, which would ignore the importance of
enhancing equality and justice (Murray, 1990). The second issue involves the role of conflict prevention in dispute system design. The idea of preventing disputes counters the view that conflict is natural or even a healthy human activity. The designer, who subscribes to the fûnctional view of conflict, may not feel a responsibility to develop a dispute resolution system that strives to avoid conflict, While the designer may strive to design a dispute system to lower the costs of conflict and maximise the benefits, the design may not significantly reduce the volume or intensity of disputes (Murray, 1990).
Nevertheless, Murray (1990) states that there is a broad consensus, among dispute system designers, about their responsibility to build in network learning through training, coaching, alterhg motivations and identifjmg possible resources to enable parties to effectively and efficiently handle disputes.
A review of the literature has revealed four general steps that dispute system designers adhere to when devetoping dispute management systems: conflict analysis, system design, implementation, and evaluation (Constantino and Merchant, 1996; Ury et al., 1989; Tillett, 1991). Conflict analysis, Tillett (1991) states, is where the eventual success or failure of dispute resolution rests. According to the literature, such an analysis has two objectives: First, the analysis should assess the disputants' objectives, goals and interests in the conflict, and thus identify the impediments to a settlement.
Second, the analysis should help to identiw the appropriate ADR procedure to meet disputants' interests and overcome the impedirnents to a settlement. According to Ury et al. (1989), the first step starts with understanding the background of the dispute, its pattern and the cntical motivations of al1 parties involved. Tillett (1991) separated the first objective into two stages: investigation and identification. He maintained that an effective analysis involves an investigation of the problem, participants, the past, pressures and projections. Investigation is followed by an identification stage that involves assessing and analysing the information collected in the investigation and then deciding on the key issues. Once this objective is complete, selection of an appropriate conflict resolution technique follows (Constantino and Merchant, 1996; Ury et al.,
1989; Tillett, 1991).
The second step is to select an appropriate DRT to meet the needs of the disputants. Tillett (1 99 1) described this process as "preparation", the final stage in conflict analysis, which promotes a resolution, establishes relationships and decides on a forum for resolving the dispute. However, according to Sanders and Goldberg (1994), this task is problematic. The investigation and identification of party interests and impedirnents rarely leads to a clear preference or indication of the most appropriate
DRT.The answer to this dilemma, according to Sanders and Goldberg (1994), is the idea of presumptive mediation. Mediation should, provided that there is an absence of indications to the contrary, be the first DRT used. If mediation fails then other dispute resolution procedures should be recommended. in other words, Sanders and Goldberg recommended a trial and error approach to selecting DRTs. This approach may have applications within private organisations or labour disputes. However, the reliance on presumptive mediation does not appear applicable to many public disputes, and specifically to resource or groundwater related disputes. The importance of groundwater to agricultural and domestic consumption, arnong other uses, coupled with utilising a trial and error approach, would likely waste time and financial resources. in groundwater disputes a conflict analysis can help to detennine an appropriate dispute resolution method.
According to Constantino and Merchant (1996) and Ury er al. (1 989), designing a dispute resolution system necessaril y involves stakeholders in identimng appropriate methods of ADR and the timing of their use. Also, in practice a designer's task is to make sure disputants have the necessary knowledge and skills to effectively choose and use ADR (Constantino and Merchant, 1996). Therefore, the disputing parties should maintain complete controt of the process. Also, as Ury et al. (1989) stated, the design phase should involve parties' opinions and concems before any changes are made to a curent dispute resolution mechanisms.
Implementation of the new system cm take the fom of a pilot program that enables the formalisation of logistical concerns such as cost sharing, the selection process of neutral third parties and identiSfing incentives to use various DRTs
(Constantino and Merchant, 1996). Also, the initial design may be reassessed and redesigned within this phase (Ury et al., 1989). Finally the new system must be evaluated to gauge its efficiency, effectiveness and the overall satisfaction of the disputants. However, the research objective for this study relates only to the conflict analysis and system design phases of the dispute system design process. While impIementation and evaluation are critical design steps, they are beyond the scope of this thesis.
2.4.1 Designing Dispute Systems for Resource Disputes
Dispute resolution in resource management is typified by a lack of well- developed empirical analysis and theory building (Cubbage, 1994; Floyd et al., 1996).
According to Francis (1990), the naturd resource dispute literature suffers fiom an inability to offer explanatory rather than descriptive accounts, and this appears true of dispute resolution literature in general. For example, many case studies that document efforts to resolve resource andor environmental disputes (e-g., Susskind et al., 1983; Bingharn, 1986; Wondolleck, 1988) provide primarily anecdotal evidence and little analysis. Raiffa (1982) also notes that the existing literature is suspect in that much of what we know empirically about dispute resolution is dominated by research conducted by activists, advocates and those with a strong cornmitment (many of whom are professional mediators) to particular procedures. This, according to Floyd et ai. (1996), lirnits our objective understanding of when and why dispute resolution techniques work or do not work. According to dispute system design literature, understanding when and why to use dispute resolution techniques is critical in the development of dispute systems (Ury et al., 1989; Murray, 1990: Constantino and Merchant, 1996).
To address this weakness, Floyd et al. (1996) attempted to determine the when and why of dispute resolution technique (DRT)use in resource management through linking conflict intensity and resource use. The focus of their approach was on whether the kind of resource use affects the likelihood of reaching a settlement. Their rationale for this approach is that resource use patterns affects dispute outcomes, and determine whether or not ADR is appropnate to resolve resource disputes. Floyd et al. (1996) developed a conflict model to illustrate a possible cause and effect relationship between resource use and intensity of confiicts. They asserted that the intensity of a conflict cm, in part, be determined by the types of resource use in dispute. The model reflects potential value differences, whether the use is an input into a production process (a commodity), or whether the resource is used for its amenity value. The model relates a range of resource use types starting with geocommodity followed by biocommodity, use amenity, and preservation amenity. Therefore, resource use ranges fiom mineral extraction (geocommodity) on one end of the scale, to environmental preservation (preservation amenity) on the other. According to Floyd et al. (1996), studies of forestry disputes revealed that confiict intensity is lower when resource uses are in close proxirnity dong the scale they defined. in other words, the more contentious conflicts will involve resource uses fiuther removed fiom each other (e-g., geocommodity versus preservation arnenity). Through an analysis of resource use, it becornes possible to predict dispute intensity, probable outcomes and what DRT may be most appropriate.
Floyd et al. (1996) regarded the resource conflict model as an aid to analysing conflicts and selecting DRTs. They found that differentiating types of resource use was usefùl when detennining types of disputes that should be submitted to ADR processes.
However, as the literature indicates, psychological, social, and economic factors in dispute situations are important in predicting dispute intensity and probable outcomes.
Floyd et al. (1996) failed to consider these aspects.
According to some authors (e-g., Walton and Dutton, 1969; Ury et al., 1989;
Carpenter and Merchant, 1996; Hatch, 1997), local conditions closely associated with a dispute are important to address. To help understand how local conditions affect cornmunity disputes, Walton and Dutton (1 969) outlined possible local sources of community conflict. The model (see Box 2.2) helps to illustrate some important linkages between possible conflict experiences or characteristics, some important local conditions, and the context in which cornmunity conflicts occur. Using the model, specific conflict characteristics can be traced to a single or set of local contributing conditions or factors and the context in which they occur. From the model, it appears possible to examine the characteristics of community disputes to help identitj. the locai factors, motivations and perceptions.
Support in the organisational, social psychology and public dispute li terature provides evidence that the characteristics of disagreements are important in determinhg outcomes as well as dispute system design. As Moore and Lee (1999) have determined, contextual influences (Le., dispute characteristics), such as the nurnber of parties
Box 2.2 Sources of Public Disputes
*Technology -Group charactcristics -Open hostility =Environment -Goal incompatibility -Distrust/ disrespect -Social Structure -Jurisdictional ambiguity -Information distortion -Cuiture -Communication obstacles -Lack of communication *Physical Structure -Individual differenccs -Lack of CO-opention -Cornmon resource -Avoid interaction
(Walton and Dutton. 1969)
------involved and the presence of deadlines, are fkequently investigated to describe and analyse outcomes. Characteristics or contextual influences are infiequently analysed to determine appropnate resolution processes. Couch and Kroll-Smith (1994) stated that local conditions are important characteristics in analysing public resource disputes.
According to Hatch (1 997), valuabie insights are gained about public/community conflict when a conflict is examined within the context of local conditions and characteristics (Hatch, 1997). While the literature provides characteristics that affect disputes, it lacks an organisational fiarnework and a methodology to investigate when and why DRTs are appropriate when disagreements arise. 2.4.2 Preliminary Dispute Factor Classification Scheme
An in-depth analysis of the literature revealed no applicable mode1 or classification scheme that integrates psychological, social, economic and resource- specific factors or characteristics to aid in the investigation of water resource disputes.
As a result a prelirninary Dispute Factor Classification Scherne was developed to integrate the desired features (see Table 2.4). The categories integrate psychologicai, social, economic and resource use-related charactenstics. The classification scheme incorporates four categories of dispute factors. First, background factors are associated with events, relationships and views that exist prior to a dispute. According to White
(1 991), Ury et al. (1989) and Hatch (1996), antecedent conditions in cm influence ongoing disputes and are critical considerations in dispute analysis. Second, Amoff
(1 997) in international peace research, de Loë and Kreutzwiser (1998) in water resource dispute research, and Constanino and Merchant (1996) in organizational theory, recognized that situation-specific variables influence not only outcornes but also how resolution techniques or systems of techniques are structured. Third, capability factors are widely recognized as important factors in resolving a variety of private and public disputes. Capability is related to the power parties have to effectively represent their interests in the resolution process (e.g., Carpenter and Kennedy, 1988; Ury et al., 1989;
Constantin0 and Merchant, 1996; Dukes, 1996). Fourth, in the context of this research, the category water resource factors characterizes the resource use pattern and resource avai lab i lity . Floyd et al. ( 1996) speci fically recognized natural resource-related factors as important when considenng DRT alternatives. In recognition of this finding, and to Table 2.4: The Preliminary Dispute Factor Classification Scheme
Dispute Factor 1 1 Dispute Factors Category Past disputes between parties. Factors P The prospect of fùture business and /or social interaction between Factors that erist parties in a dispute. t-t t-t prior to a dispute Attitude toward certain conflict resolution techniques due to past and affects how it experience with them. zrnfoltis. 1 Difference in parties' basic values or principles. l Entent to which parties have communicated. Situational I Increasing personal time pressures. Factors l The number of people involved in a dispute. Factors tliat exist P involvement of parties who strongly believe in the "rightness" of becartse of the their position. I dispute. Parties' desires to maintain their privacy. r Personality clashes between people in a dispute. The tactics parties' use in a dispute. r The degree to which issues in a dispute can be resoived. The extent to which parties agree on the definition of the issues. lr Number of issues in the dispute. lr Presence of imposed deadlines. Capability 10 Difference in financial resources available to the parties in a Factors dispute. Factors related to The potential of parties to lem unfamiliar conflict resolution the ability of techniques. parties to 1 Parties' abilities to use and understand technical and other fonns participale of specialised information. egectively in the WilIingness to risk an unfavourable outcome. , dispute resolution , Capacity to implement agreements. process. 4 The actual impacts of the disputed water use. Factors Perceived consequences of disputed activity. Factors of water Resowce availability. sirpply and Availability of temporary or permanent water supplies. demand tlzat How water is used. affect dispute Uncertainty over scientific and technical questions. resoht ion processes.
specifically focus on water disputes, water resource factors were incorporated into the
classi fication scheme. The Dispute Factor Classification Scheme provides the foundation and organizational framework for the investigation of water resource disputes. The classification scheme is not intended as a tool to characterize water disputes in general, since it is unlikely that al1 dispute factors become evident or manifest in al1 water disputes. Lnstead, various combinations of dispute factors fiom the classification scheme cmbe used to characterize individual cases. This can help those faced with a water dispute analyze and assess dispute situations.
2.5 SUMMARY
In summary, the literature related to conflict management is extensive and encompasses many disciplines. These disciplines have different perspectives about the roles and relative importance of interests, values, needs and perceptions in conflict situations. They are complex and the subject of considerable debate. Therefore, it is not surprising that the literature lacks a comprehensive theory of conflict resolution that integrates important aspects of needs, interests, perceptions, and values. However, the literature does appear to support CO-operativeprocesses, such as those associated with
ADR, for resolving many kinds of conflicts, including resource and environmental disputes. Resource and environmental disputes are viewed, in the literature, as public disputes. Public disputes are noted for attracting many and varied stakehoIders with differing values, interest and perceptions. While rights-based and power-based approaches play roles in public dispute resolution, the use of techniques based on co- operation, such as negotiation and mediation, are seen as low cost and low impact routes to resolution. Many people affected by water supply interferences in Ontario are faced with resolving disputes without the aid a satisfactory systern. Because the literature lacks theory and tools that help disputants determine when and why dispute resolution techniques are used, disputants in water disputes lack a way to analyse a dispute and determine the most appropnate DRT(s) to reach a settlement.
According to Carpenter and Kennedy (1988), while each dispute situation is unique, certain patterns of behaviour and consequences can be discerned. Recognising patterns of disputes is the focus of dispute system designers. However, dispute system designers recognise that disputes are ofien resolved with a number of resoIution techniques. By designing dispute systems with a variety of dispute resolution techniques, patterns of disputing can be effectively and efficiently handled.
To design a dispute management system, factors or characteristics appear to play an role in how disputes unfold and how resolution techniques are selected.
However, the literature lacks an organised and categorised set of dispute factors for investigation disputes. As a result, the Dispute Factor Classification Scheme was developed to facilitate the investigation of water disputes and the design of a dispute management system for groundwater disputes in Ontario. CHAPTER THREE
RESEARCH DESIGN
3.1 INTRODUCTION
The purpose of this chapter is to outline the research design used in this study. It is important to recall that the purpose of this study was to develop a dispute management system and a set of management recomrnendations or principles for resolving water resowce disputes in Ontario (see Chapter One). This chapter begins by outlining a rationaie for the research approach. Next, the questionnaires are discussed, followed by a section describing the background characteristics of the respondent oroups for both questiomaires. The methods used to analyse questionnaire data will be CI discussed followed by a summary of the chapter.
3.2 RESEARCH APPROACH
Analysis of conflict literature indicated that the inclusion of stakeholders in the design process of a dispute management system is critical to enfiance procedural justice and the effectiveness of a dispute management system. The success of this approach requires that stakeholders have input regarding the nature and structure of a management system. In contrast to this "stakeholder driven" approach, an "expert driven" approach uses only experts to design and structure a dispute management system. The success of this latter approach has been questioned on the grounds that stakeholders' CO-operationis often compromised by imposed procedures (Connick,
1980; Bacow and Wheeler, 1984; Ury et al., 1989; Sander and Goldberg, 1994;
Costantino and Merchant, 1996). In response to this argument, a stakeholder driven approach becarne a fiindamental element in the research design of this study. To incorporate attitudes and perceptions of stakeholders for the development of a dispute management system, people with past experiences, as stakeholders, in water disputes represented a significant portion of the participant group in this study.
There are several ways that attitudes and perceptions of people are obtained.
According to Needham and de Loë (1990), attitudes and perceptions can be obtained through group processes or non-group processes. Group processes, such as workshops and brainstonning sessions, involve interaction and are dynamic ways of generating ideas, attitudes and perceptions. However, some major drawbacks of group processes are the high expense associated with adrninistenng workshops, and the fact that opinions within a group can be suppressed by dominant participants (Needham and de
Loë, 1990). Also, workshop participants may suppress opinions in public forums. Non- group processes, such as questionnaires and interviews, can be considerably less expensive to adrninister, and give respondents equal opportunity to contribute.
However, one shot surveys and interviews do not allow interaction over ideas, and feedback, which can lead to useful and important insights.
A questionnaire structured as an iterative process incorporates some interaction over ideas, which is an advantage of workshops, with the cost efficiency, confidentiality, and equal contribution opportunities of non-group processes. Therefore, a two round iterative questionnaire was used in this research.
The preliminary Dispute Factor Classzjkation Scheme (see Section 2-42), organised and facilitated the exploration of people's attitudes and opinions regarding dispute factors, resulting in the development of a dispute management system for water disputes in Ontario.
3.3 "DISCOVERING COMMON GROUMB": A TWO ROUMI KTERATIVE QUESTIONNAIRE
The focus of the two round iterative questionnaire was to garner a broad range of attitudes and opinions on dispute factors, beginning with those outlined in Table 2.4.
Specifically, respondents were asked to indicate their expenence with, and their opinion on, the importance and appropriateness of DRTs, relative to particular factors. The first questionnaire was structured as an exploratory phase, to collect data on respondent experiences with dispute factors. The question "Did dispute factors exist according to the experience of the respondents?" fairIy illustrates the focus of the first round questionnaire. Also, respondents were asked to suggest dispute factors which, in their experience, were important in water disputes. These were important additions to the second round of the survey. Before the first round was presented to respondents, it was subjected to a pilot study to assess aspects of its design and instructions. In the second round of the survey, dispute factors were tested in two ways:
1. for the importance of each dispute factor when selecting a dispute resolution
technique; and,
2. for procedural preference, where DRTs were selected for each dispute factor
statement.
Although the research process used a two round, iterative survey similar to a poIicy
Delphi (de Loë, 1995), it was not a Delphi study because some aspects of the two rounds were independent. Nevertheless, as will be seen, policy Delphi principles infonned the questionnaire design and parts of the analysis. The four dispute factor categories of the Dispute Factor Classification Scheme
(see section 2.4.2 and Appendix A and B) were used to structure each questionnaire.
With each round of the questionnaire, instructions were included to explain the purpose of the study, the questionnaire format and respondent responsibilities. At the end of each questionnaire, respondents were requested to complete some questions regarding professional background. Importantly, respondents were ensured about the con fidentiality of any personal information contained in questionnaires.
3.3.1 The First Round Questionnaire
The first questionnaire was developed to determine the existence of, and to discover new, factors related to water disputes. More specifically, the swey was stmctured to determine whether respondents had experienced the dispute factors, and if so, respondents were asked to indicate in what type of dispute the factor played a role
(see Figure 3.1). This exercise was important to determine if dispute factors, which were gathered Fom the dispute resolution literature, were playing a role in water disputes. The same structure was used for background, situational and capability dispute factors. The exception to this format was water resource dispute factors, where in respondents were asked to describe the kind of water resource disputes in which the factor played a role (see Appendix A). In other words, since this dispute factor category was already about water disputes, it appeared redundant and inappropriate to require respondents to indicate the type of dispute in which the factor occurred. In owexperieice, bave you seen these If YES, of dhpitc did factors playing a ro* the way a local factor play a rok? (cbeck al1 Chat apply) dispute unfolded? (circle appropriate answer) I - Land-use dispute (e.g.,plaming iresource) YES - Water dispute - Other (e.g.,family/personaldisputes) (please Past disputes between parties speciQ) NO
Figrtre 3.1: Example of First Round Question
Almost al1 first round dispute factors, were included for consideration in the second round questionnaire (see Section 4.3.1). Although respondents may infiequently experience particular factors, they may still be important if and when they arise.
Therefore, almost al1 dispute factors were included in the second round irrespective of the first round results. One factor, as presented to first round respondents, was not included in the second round because it lacked a clear definition suitable for the second round questionnaire
Respondents were asked to suggest additional dispute factors which, in their experiences, were important in local disputes. This was an important aspect of the first round questionnaire. Respondents' suggestions were evaluated (see Chapter Four) for inclusion in the second round questionnaire.
In the final section of the first round questionnaire, respondents were asked a number of questions about their professional backgrounds, which was necessary for completing a profile of the respondent group. A central focus of this exercise was to obtain information on respondent experiences with dispute resolution processes, speci tically water disputes. 3.3.1.1 The Pilot Study
According to Parfitt (1997), a pilot study of a questionnaire survey is a critical component of the questionnaire process. The objective of this exercise was to check a number of questionnaire design aspects. These included areas such as questionnaire format, questionnaire length, questionnaire output and clarity of instructions. The pilot study was conducted with 6 participants (during iune, 1998) with backgrounds ranging hmacademic, senior goverment, local govenunent and agriculture.
Pilot study respondents were asked to complete the questionnaire, as the instructions outlined, and provide feed-back on aspects of questionnaire design previously outlined. The results of this exercise revealed that the questionnaire design and format were understandable. The 30-45 minute questionnaire completion time was not considered excessive for a survey of this type. Output fiom the questions appeared clear, with little reason to suspect instruction andlor question ambiguity. Some respondents in the pilot study phase provided some editorial cornments to heIp clan@ questionnaire instructions. Overall, only minor changes were needed to ready the questionnaire for the first round of the survey
Because only minor changes were needed to administer the questionnaire, completed pilot study questionnaires were used as part of the first round mail out.
Specifically, 5 of 6 pilot study survey responses were used as first round questionnaire responses. One respondent (academic participant) was dropped from the study since this pilot study contribution was limited to questionnaire design considerations. 33.2 The Second Round Questioanak
The purpose of the second round of the survey was two-fold: first, to test for the
importance of each dispute factor when selecting dispute resolution techniques; and
second, to determine respondent preferences for DRTs for each dispute factor
statement. The second round was maiied to al1 £ïrstround participants, and to other
pertinent individuals who had not participated in the first stage. Again, the Dispute
Factor Classijhtion Scheme provided the organisational structure for each part of this
questionnaire (see Appendix B). Instructions and an introductory cover letter were
included to outline the purpose of the study and to explain how to complete the
questionnaire. The instructions also indicated that only respondents with water dispute
experience should complete the survey. Respondents were asked to review the
instructions and complete the questionnaire beginning with Part One (Factors in Local
Disputes), which focused on the importance of dispute factors when selecting DRTs
(see Appendix B).
33.2.1 Part One: Importance Testing of Dispute Factors
Importance, in this part of the questionnaire, was defined as the degree of
influence of dispute factors in selecting DRTs. In other words, the question "How
important is each dispute factor when selecting a way to resolve a water dispute?"
motivated the design of this part of the survey. This was a critical part of the survey
since the dispute resolution and resource management literature Iacks theory on dispute
factors and their relevance to selecting DRTs. As discussed in Chapter Two, contextual
influences, or as is termed in this study, "dispute factors", are well documented in the
Iiterature. Xowever, contextual Muences have ken predorninantly studied in relation to dispute outcomes in a bid to explain cause (contextual influences) and effects
(outcomes). insteaâ, for this research, contextual influences or dispute factors were used to investigate process design decisions in water dispute situations.
Dispute factors in background, situationai, capability, and water resource dispute factor categories were presented to the respondent as "importance statements".
For example, the dispute factor pst disputes between parries was reworded to read
Par disputes between people idvedin a dispute me un imporîant factor when selecting a dispute resolution technique. Respondents were asked to rate their level of agreement/disagreernent with the statement using an extended attitude scale (see Figure
3-2) rather than just a simple binary "agree" versus "disagree" scale. The use of the extended scale allowed for a measure of the strength of opinion (Parf~tt,1997). Through the exploration of 3 1 dispute factor importance statements, the attitudes of respondents were measured. Also, respondents were asked to state the reasons for their ratings.
Reasons were important in determining general themes for agreementldisagreement with each statement. h other words, reasons were used to determine why a dispute factor was Unportant or unimportant. Additionally, they allowed for the identification of
0 1.a Past disputes bctueen ppkwithin a dispute anan important factor wben selecting a dispute rcsolution techaique to nsoive V a dispute. Please check only one. 1
Fipe3.2: Importance Dispute Factor Statemenf prevalent themes regarding respondent attitudes, and cornpehng and/or polarised views on the importance of dispute factors.
3.3.2.2 Part Two: Selection of a Dispute Resolution Technique for Dispute Factor Statements
Critical to the development of a dispute management system was the determination of appropriate DRTs for each dispute factor. Termed procedural preference testing in the literature, the DRT selection process for dispute factors presented some obstacles. The conflict resolution literature revealed that dispute factors have the potential to manifest either as benign or as significant impediments in resolution efforts. In other words, dispute factors can manifest or evolve into what are termed "worst cases" for that factor, and can represent a major obstacle to reaching an agreement. For example, the dispute factor relating to past dispute behveen parties may be benign if parties in a dispute have successfÙlly resolved a past dispute. Altematively, this factor can be a significant impediment to reaching a settlement. Analysis of selected dispute resolution case studies in the resource management area revealed that many disputes contain evidence of worst-case manifestations of dispute factors (see
Table 3.1 ). For example, Harris (1998) documented a water dispute involving water extraction activities in West Lincoln Township in Ontario and the resulting impact on area agricultural water users. A review of this case revealed that sorne parties in the dispute iacked financiai resources to effectively engage in dispute resolution, distrusted other parties in the dispute, and were faced with significant uncertainty over technical and scientific issues. These charactenstics appear to represent worst-case manifestations of dispute factors related tojinancial resources of the parties to elfectively engage in dispute resolution, trust among parties, and uncertainty over Table 3.1: Selected Case Studies Describing Worst Case Manifestations of Dispute Factors
1 Wood 1 Harris 1 Hofinann and Dispute Factors 1 (1976) 1 (1998) 1 Mitchell ( 1995)
I I 1 Difference in ~arties'basic 1 v 1 1 values or principles. Extent to which parties have cornrnunicated. J Degree of trust between parties. J 1 I I Trust among parties. 1 1 J 1 Difference in parties' basic values or ~rincides.. J involvement of parties who strongly believe in the J "rightness" of their position. Differences in financial resources available to the parties J in a dispute. Parties' abilities to use and understand technical andor J other forms of specialised information. Parties' ability to use and understand technical andlor other forms of specialized J information. Uncertainty over scientific and technical questions. if Perceived consequences of a J 9 disputed activity. Uncertainty over scientific and techical questions. J The actual impacts of a disputed 9 water use. Resource availability. J techriical andor scienrz9c questions. Two other case studies (Wood, 1976; Hofmann and Mitchell, 1995) illustrated the existence of dispute factors in water disputes, and showed that they may manifest as worst-cases. It is with this evidence that worst-case expressions of dispute factors were used to determine respondent preferences for DRTs. The use of worst-case scenarios for dispute factor statements appears appropriate for characterizing or contextualising disagreements about water. However, collectively, worst-case dispute factor statements do not necessarily characterize al1 individual cases researched. Therefore, it is recognized that only a limited number of worst-case dispute factor statements may manifest in local disagreements. In other words, the complete range of worst-case dispute factor statements are not seen as characterizing individual cases but, instead, are seen as potential influences that can arise. Therefore, only a subset of worst-case dispute factor statements may manifest in particular cases.
For the second part of this questionnaire worst-case statements representing each dispute factor were developed. in cases where there was no clear worst-case expression for a dispute factor, two worst-case dispute factor statements were used. For example, there was no discernable worst-case expression for the dispute factor related to rlegative past aperiences with a DR T (see section 3.3.1). Therefore, two worst-case statements were used:
Some parties have had negative experiences with negotiation in the past; and Some parties have had negative experiences with mediation in the past. The type of water use (e.g., domestic and commercial) as a dispute factor also had no clear worst-case expression. Again, two worst-case expressions were used:
A domestic water supply is affected by the disputed use; and,
A commercial user of water is affected by a disputed use. The inclusion of both dispute factor statements aiiowed for a more sensitive measure of the impact this dispute factor can have on DRT selections. Overall, these added statements expanded the number of statements fiom 3 1 in Part One of the questionnaire to 33 in Part Two (Appendix A and B).
To detennine the procedurd preferences of respondents for worst-case dispute factor statements, participants were asked to select a first choice DRT that would best resolve a dispute associated with the factor in question (see Figure 3.3). Next, respondents were asked to give reasons for their selections. Reasons proved important in deterrnining why particular DRTs were selected, and the perceived strengths andor weaknesses of selected DRTs. Lastly, for each statement, respondents were asked to select a second choice DRT to represent situations where their first choice was
In a dispute in which the above factor is very important, which dispute resolution technique wouId you recomrnend? Pick only one. Q Negotiation Q Mediation a Other (Please speciQ) Q Arbitration Q Litigation Reason for your answer
If your first choice is unsuccessfu1,or for what ever reason cannot be used, what would II be your "second best" choice? Pick only one. Fi Negotiation Q Mediation O Other (Please specim) Q Arbitration Q Litigation
Figure 3.3: Example of a DRT Selecrion Quesrion unavailable or failed to resolve a dispute. 3.4 THE RESPONDENT GROUP
This section summarises the respondent selection process, numbers of respondents, and respondent background information. Respondent background information was gathered using a series of background questions (see Appendix A and
B)
3.4.1 Selection of Respondents
To fulfil the objectives of this study, it was important to select respondents who had past experiences with local water resource disputes. in other words, it was important to tap into the extensive and varied water dispute experience of respondents to adequately assess the dispute factors. Also, it was critical to obtain a wide spectrurn of respondent experiences, including those of private parties affected by water disputes, local government officials, senior govermnent officials, conservation authority staff and other experienced parties. The survey was structured to have the first round respondents go on and complete the second round (see Section 3.3.1).
The selection of respondents for the first round survey began with the identification of people through a workshop, on conflict management. The
"Groundwater and Agriculture: Developing Proactive Solutions" workshop (Barrie,
Ontario, 1997) participant list was used to identifjl people who had past experiences with water disputes. Many of the workshop participants were contacted by telephone to determine their past experiences. Respondents with relevant experiences were asked to participate in the study and were sent questionnaires as targeted participants. Also, during telephone interviews, people were asked to suggest others with water dispute experiences for possible inclusion in the study. A significant portion of the Fust round group was recruited through this process.
Untargeted respondents were identified through the Barrie workshop participant list and mailed questionnaires without pnor contact. Instructions for al1 questionnaires were expiicitly worded so that people would clearly understand that only those with water dispute experiences were needed for the study.
Originally, the second round of the survey was to be sent only to htround participants. However, it ultimately was modified so that it could be mailed out to a wider audience. Modifying the second round to include both a core group (as originally stmctured) and a new group provided avenues for increasing the number of participants. However, the main reason for modifjlng the second round to include non- core group respondents was the unexpectedly low participation rate of the first round.
Only 16 of 35 targeted first round participants (those that agreed through telephone contact to participate) retumed questionnaires. Ultimately, the fact that a broader respondent group than originally conceived was used became unimportant because the second round built on the first round, but was independent.
Second round participants included people that were sent first round questionnaires, which included those that did respond (first round respondents) and those that did not respondent, and people identified fiom the foltowing sources:
Participants listed as attending the "Groundwater in a Watershed Context"
Conference (Burlington, Ontario., 1998).
Municipalities identified as using various DRTs to resolve water disputes in
the last ten years for a study conducted by Kreutzwiser and de Loë, 1998) 3.4.2 Numbers of Respondents
At the end of the fïrst round, 24 people completed the questionnaire (see Table
3.2). Since 35 targeted Table 3.2 Round One and Round Two Response Numbers and 90 untargeted First Round Second Round participants were sent Res~ondent Questionnaires Questionnaires Type Sent Received Sent T Received surveys, the response rate 1 Targeted 35 16 24 5 Untargeted 90 8 295 35 of 19.2% was less than Totals 125 24* 319 40 5 used in pilot study 19 retmed expected. Also surprising - is the fact that only 16 of 35 targeted people (who had been previously contacted and agreed to participate) returned questionnaires. The low response rate may be explained by the sweymail-out coinciding with the summer growing season (fanners) and surnmer holidays (governrnent staff). Nevertheless, 24 completed surveys provided sufficient data for an analysis.
A total of 40 people completed the second round of the survey (see Table 3.2).
However, of the 24 first round respondents, only five also completed the second round questionnaire In other words, of the core group of respondents, who were asked to complete both rounds of the questionnaire, only five did so. As noted earlier, this did not present any problems due to the design of the second round.
The second round response rate (see Table 3.2) was 20.8% for targeted participants (first round respondents) and 11.9% for untargeted participants. This low response rate was possibly related to the long length of the questionnaire (as discussed earlier) and to municipal restructuring. Municipalities with past experience with water disputes were sent 175 surveys. However, at the time of questionnaire mail-outs, many municipalities were contending with amalgamation and downloading of provincial responsibilities to municipalities. This situation likely contributed to an overall low response rate. However, the low response rate did not adversely affect the completion of the research objectives since 40 people completed questionnaires, resulting in a substantial data set. Furthemore, because the respondent group was not considered a sample, concerns relating to representativeness are avoided. The more important consideration was thought to be the extent to which participants reflected different kinds of pertinent experiences and backgrounds.
3.4.3 Background Characteristics of the Respondent Croups
Respondents in both rounds of the survey were asked to complete questions about their backgrounds necessary for generating a group profile. In both rounds of the survey, the largest grouping Table 33: Numbers of Respondents by Professionai Background of respondents came from 1 1 Survev Round 1 government agencies, Profession Carry- Round' oYer* Round 2 I I 1 I J including al1 three levels of Farming 7 7 Local 7 1 13 Govemment government (local, 1 Provincial 6 3 7 provincial, federal) and Government conservation authorities Cl Other 4 (see Table 3.3). Farrners Totals 24 5 40 * Cany-over refers to the first round participants that were well represented in the also completed the second round questionnaires both respondent groups. Agicultural groundwater use, as discussed earlier, is significant in Ontario and is associated with £iequent disagreements over water alIocation and contamination. The respondent groups appear to have representation across a wide spectnun of professions and experiences.
An analysis of background respondent information revealed that 75% of fht round respondents had professional background experience with water management and 70% with agriculture (see Table 3.4). Somewhat less professional experience was reported with confiict resolution (54% of first round respondents reporting) and land- use planning (50%). The scope of fmt round respondent professional experiences appears to be wide and varied.
in the second round of the survey, 63% of respondents reported experience with water management (see Table 3.4) and 50% of the respondent group reported experience with conflict resolution. Relatively fewer respondents reported experience with agriculture and land-use planning. Round one and two had substantially different experience rates with agriculture (70% Round one vs. 45% Round two). The apparent difference between rates of agriculture experience between the two questionnaires is likely associated with lower percentage of fmerrespondents in round two (1 7.5%) than round one (29.2%). Water management was most cornmon fom of professional expenence among respondents in both rounds of the survey.
Information provided in the respondent background section of the first round questiomaire indicated that 92% of first round respondents had encountered local disputes in the last ten years. More specifically, 68% of the respondents reported having experiences as a third party and 50% reported past experiences as a disputant. Also, first round respondents reported past experiences as technical experts. Importantly, Table 3.4: Respondent Professional Experience by Profession
Professional Backround* 1L - Water Conflict Land- Profession Agri- Manage- Resol- use Other cuIture ment ution Planning First Round Respondents Farming 4 4 4 7 1 Local 5 2 3 3 Govenunent Provincial 6 3 3 5 Construction Government Co~servation 1 2 1 Authonty Consulting 2 2 1 1 Other . 1 I Total 1 18 (75%) [ 13 (54%) 1 12 (50%) 1 17 (70%) 1 1(4%) Second Round Respondents Farrning 2 2 2 4 - Problem Solving Local Building Code 7 7 9 8 - Goverment - Public Housing- Provincial 5 4 5 5 Waste Mngmt. Govement - Federal 2 Government I Conservation 6 4 1 Authority Consulting 2 1 Other 2 2 Communications Total 2S(63%) 20(50%) 17(43%) 18(45%) 5 (13%) * The categories are not mutually exclusive
88% of the first round respondent group reported past experience with water resource disputes.
Information on respondent background experience revealed that 93% of second round respondents encountered local disputes in the last ten years. Also, 63% of second round respondents reported having conflict resolution experience as a third par&. Also
45% of the respondent group had experiences as a disputant. Other participants reported experience as technical experts, as Ontario Federation of Agriculture (OFA) representatives, as members of environmental impact assessment committees, and as a 54 planner. Experience with water resource disputes was reported by 88% of second round respondents.
Both respondent groups reported high levels of experience with negotiation, mediation and litigation (see Table 3-5). Interestingly, only 17% of the first round respondents and 33% of second Table 3.5: Respondent Experience with DRTs round respondents reported Round 1 / Round 2 experience with arbitration. This DRT (% respondents reporting) N=40 may suggest that arbitration is not Negotiation 67 65 Mediation 63 48 frequently used in resolution efforts Arbitration 17 33 Litieation 71 40 for local disputes.
Overall, both respondent groups had past experiences with a variety of dispute resolution techniques and with a nwnber of roles (e.g., as a third party) in a dispute.
Importantly, most respondents had past expenence with water disputes. Therefore, background information indicates that respondents had extensive and relevant expenence needed to evaluate dispute factors related to water disputes.
3.5 ANALYSIS OF QUESTIONNAIRE DATA
Analysis of first round questionnaire data was limited to reporting fiequencies of "Yes" ratings for individual dispute factors. Also, suggested dispute factors were evaluated to determine their suitability for inclusion into the second round questionnaire (see Chapter Four).
Separate analyses were conducted for the two parts of the second round survey.
Respondent agreement/disagreement ratings of dispute factor importance statements were conducted using a system devised by de Loë (1995) and modified by Wojtanowski (1997). The system used permitted the classification of ratings for each dispute factor importance statement according to the degree of consensus and support/opposifion.Box 3.1 illustrates the system used to summarise the ratings. It is i rnportant to note the rules used to determine consensus and supporf/opposition.
Using this system, it was possible to detennine, through a measure of consensus,the degrec of agreement or disagreement within the respondent group on the importance of a dispute factor in selecting DRTs. In other words, the degree of group unity of opiniodattitude was measured. The measurement of support/opposifion indicates the degree to which the respondent group endorsed the importance of dispute factors. For example, the dispute factor related to the degree of trust between people in a dispute had a high consensus of importance with 36 of 40 respondents rating this statement as either "Strongly AgreeW(SA)or "Weakly AgreeW(WA)(90% of ratings in 2 related agreement categories) (see Box 3.1). The respondent group's attitude on the importance of the dispute factor related to the number of issues in a dispute was almost equally divided between "Strongly Agree (SA)" at 13 of 40 and "Strongly Disagree
(SD)"at 12 of 40. A consensus rating of "none" meant that the statement received no support either way on its importance in selecting DRTs. Also, this exarnple illustrates a classic case of polarisation within the group. Overall, collated importance ratings coupled with the reasons for each rating allowed for analysis of the group's assessment of the importance of dispute factors (Chapter Four). Box 3.1: System Used to Analyze Respondent Rotings
The table illustrates how two dispute factor importance statements were summarized for consensus and support.
Rating Distribution Dispute Factor Importance Consen- (Number of Respondents Reporting) Statement sus SA I WA I WD I SD I Blank 1 Background Dispute Factor: When deciding on a dispute resolution technique, the High degree of trust between people is an important consideration. Situational Dispute Factor: The number of issues in a dispute will affect the type of dispute resolution technique chosen.
Abbreviations used Abbreviation for Rating Distributions SA - Strongly Agree WA - Weakly Agree WD - Weakly Disagree SD - Weakly Disagree
Consensus is a measure of the degree to which the group agreed on the importance of dispute factor statements.
High = 70% of ratings in 1 category or 80% in 2 related categories Medium = 60% of ratings in 1 category or 70% in 2 related categories Low = 50% of ratings in 1 category or 60% in 2 related categories None = Less than 60% of ratings in 2 related categories * Related categories are closest in attitude classification (e-g., SA and WA; SD and WD) Support indicates where there was consensus. Categories include:
SS Strongiy supports the statement SS - WS Strongly to weakly supports the statement WS-WO 1 Neither support or opposition WO -SO Weakly to strongly opposes the statement SO Strongly opposes statement
When consensus is "none" agreement is always "None" and the respondent group is polarised on the importance of a dispute factor. (de Loë, 1995; Wojtanowski, 1997) Analysis of data resulting fiom the DRT selection exercise was restricted to reporting aggregate fiequencies of DRT selections and cornparisons between fmt and second choice DRTs. Also, reasons for the initial or htchoice selections were reviewed to determine common themes and perceived attributes of DRTs.
3.6 SUMMARY
The aim of this chapter was to provide an outline of the research approach and methods used in this shidy, a rationale for questionnaire design, a description of the respondent selection process and background information, and an outline of the system used to analyse questionnaire data. A two round iterative questionnaire was used to evaluate dispute factors. The resulting data fiom the questio~airesproved effective in addressing the research objectives.
The respondent selection process involved multiple sources to identify respondents with water dispute experiences. Also, a main focus was to identiQ and recmit respondents fkom a wide variety of backgrounds and organisations to take part in the survey. Even with low questionnaire response rates, due, in part, to a long questionnaire and municipal restructuring, the number of respondents proved adequate for this study.
An analysis of respondent background information revealed that the majority of respondents in both rounds of the survey have had experience with water disputes, a variety of dispute resolution techniques, and a variety of roles in dispute resolution efforts. Many of the respondents were associated with various levels of govenunent.
Both rounds had significant representation fiom fmers - an important group in the context of this research. The wide spectm of respondent backgrounds and experiences provided important information (see Chapter Four) to develop a dispute management system for water resource disputes in Ontario (see Chapter Five). CHAPTER FOUR
EVALUATION OF QUESTIONNAIRE DATA
4.1 INTRODUCTION
The purpose of this chapter is to provide an overview of the analysis of data gathered through the two round iterative questionnaire titled "Discovering Common
Ground". The dispute factor classification scheme, as outlined in Chapter Two, provided the organizational hmework used for both rounds of the questionnaire and for this chapter. Questionnaire data are summarized in subsections for background, situational, capability and water resource dispute factors. Each subsection contains major findings, surnrnary data tables, charts, and a discussion of selected respondent comments from a dispute factor category for both rounds of the survey. The chapter concludes with a sumrnary of the hdings.
In the first round swey respondents were asked to indicate their experience with various dispute factors and to select andlor descnbe the type(s) of dispute where each factor was experienced. In the second round of the questionnaire, survey respondents were requested to complete two parts: fïrst, to assess the importance of a set of dispute factors when considering the selection of a dispute resolution technique (DRT); and second, to select an appropriate dispute resolution technique for each dispute factor.
Dispute factors listed on the second round of the questionnaire were identified based on responses to the first round. In the selection of a DRT, the dispute factors were rephrased to express a worst-case scenario (see Section 3.5.2). Where there was no one worst-case expression for a dispute factor, two separate expressions for that factor were developed to cover two possible scenarios (see Section 3.5.2).
4.2 BACKGROUND DISPUTE FACTORS
Background factors exist prior to the manifestation of a disagreement and they can determine how a dispute unfolds. Specifically, background factors address historical contextual influences that appear to motivate parties to prefer certain resolution techniques to others.
4.2.1 Experience with Background Dispute Factors
On the first questionnaire, the first round respondent group reported high experience levels (Yes 2 60%) for four of five background dispute factors (see Table
4.1 ). Past disputes between parties and dzjjierences in parties' basic values andor principles as dispute factors were experienced by 80% and 84% of the respondent group respectively. The dispute factor relating to peoples' attitudes towards certain DRTs due to past experience with them was expenenced by oniy 36% of the respondent group. The respondent group experienced background dispute factors in several types of local disputes. Also, the respondent group experienced background dispute factors most frequently in water disputes. The respondent group cited land-use disputes less fiequently when experiencing background dispute factors. Personal, family and labour related disputes were other types of disputes in which respondents experienced background dispute factors.
Some respondents suggested the inclusion of additional background dispute factors (see Table 4.1). These were used in the design of the second round of the survey.
Suggested factors such as "General trust" and "Prejudices" were included in the second Table 4.1: Respondent Group Experience with Background Dispute Factors
Erperience Type of Dispute (%) Background Dispute Factors Yes (./O) Water Land-Use Other 1 Past disputes between parties. 80 64 52 24 2 The prospect of fiiture business ancilor social interaction between parties in a 64 56 40 4 dispute. 3 ' ~iitudetoward certain codict resolution techniques due to past 36 32 24 O 1 exoerience with them. 1 1 1 1 1. 1 4 Differences in parties' basic values or 84 68 60 4 principles. 5 Extent to which parties have 79 68 52 4 communicated. I Suggested Background Dispute Factors
Jealously over profit. General trust. Prejudices. Notification practices. Cautious approach to the dispute. Perception that welyou are disturbing a natural resource of a comrnunity. The potential purchase of a faciMy/ portion of land to "claim" rights. Perception that this is not my water--1'11 pass it on to my neighbour. Differences between surface water and ground water. Ministry intervention (hrstory). Quarry licensing (grandfathering). round survey as background dispute factors. Suggested dispute factors related to
"Perception that this is not my water-1'11 pass it on to my neighbour", and " The potential purchase of a faciMy/ portion of land to "claim" rights" allude to existing water uses and perceived rights to use water. The dispute factor me existence of long-tem estabfished water uses fairly represents the central theme of these suggestions and was included in the second round of the swvey. The suggested dispute factor "the perception that we/you are dishirbing the natural resources of a comrnwiity" relates to the degree of impact (e.g., environmental) a water use may have. Second round water resource dispute factor The degree of negative impact of a disputed water use incorporates this suggestion. A "cautious approach to a dispute" as a suggested dispute factor was considered appropriate for inclusion in the second round as a situational dispute factor. The remaining suggested dispute factors were anaiyzed, and for various reasons, considered inappropriate as second round dispute factors for this study. in total five suggested background dispute factors were included in the second round of the questionnaire.
4.2.2 Importance of Background Dispute Factors
in the second round questionnaire, the respondent group reached a high to medium level of consensus on the importance of nine of ten background dispute factors
(see Table 4.2). It is important to recail that 'consensus' is a measure of the degree of agreement or disagreement within the respondent group relative to the importance of a dispute factor. 'Support' for a dispute factor indicates the degree to which the respondent group endorsed the importance of a dispute factor in selecting a DRT. For exarnple, a hi& level of consensus was reached with background dispute factor 6 related to the
àegree of tmt between parties. A low level of consensus was associated with dispute factor 9 that addressed the importance of ethnic and/or social prejudices when selecting
DRTs.
An analysis of reasons linked to agreement ratings found that rnany participants tended to reiterate support for a particular factor. For example, respondents also offered insights as to why a dispute factor was important and how it affected the choice of a
DRT. For exarnple, dispute factor 1 reads Past disputes betweeil people in a dispute are an important factor when selecting a dispute resolution technique. A common theme for responses appeared to acknowledge the ability of past unresoIved disputes to emerge and affect a current dispute. An exarnple of this view is captured in this response: "Past Table 4.2: lmportancc of Background Dispute Factors
-- IMPORTANCE (NUMBERS OF I RESPONDENTS CONSEN- SUPPORT ** BACKGROUND DISPUTE FACTOR REPORTING)
Past disputes between people involved in a dispute is an LIO 1.1 LJ O L SS-WS important factor when iel&tinp a dispute resolution technique.
The prospect~ of future business andor social interaction - between parties is important when choosing a dispute 121 1 14 1 2 SS-WS resolution technique. Peoples' attitude towards certain dispute resolution techniques, due to past experiences, are important factors when selecting a 1 22 1 12 1 3 SS-WS dis~uteresolution techniaue. 1 1 1 I s Differences in people's basic values or principles are important 17 12 6 4 1 Medium SS-WS in detennining which dispute resolution technique to use. 1 1 When choosing a dispute resolution technique, it is important to 23 10 3 3 1 High SS-WS determine the extent to which ~eode. . have communicated. 1 1 When dcciding on a dispute resolution technique, the degree of 30 6 2 2 O High fnist between neo~leis an immrtant consideration. 1 1 Each party's best alternative to settling a water related dispute 1 1 1 is important to consider before choosing a dispute resolution 7 1 Medium SS-WS
techniaue.------a- - 12'1 ' 1 The existence of established longterm water uses is important 2l 13 2 3 1 High SS-WS when selectine a dis~utercsolution technique, Y Prejudices, such as ethnic, religious and social, are important factors to consider when choosing a dispute resolution 8 17 3 12 O Low SS-WS technique. Data on existing water rcsourcc uses are needed whcn selccting 17 11 7 Medium SS-WS a dispute resolution technique. = Strongly Agree; WA= Weakly Agee; WD= Weakly Disagee; SD= Strongly Disagree '*SS = Strang Support; WS = W ak Support disputes can completely cloud the issues especially if they have been festering for a
long time. Fighting past battles over a present issue is not a good situation to resolve".
This could also, according to one respondent, affect the selection of a DRT since
"personality conflicts and unreasonable biases from a previous conflict make it logical
to jump to a higher level [more formal techniques] of resolution".
Background dispute factor 9, dealing with various forms ofprejudice and their importance in DRT selection, received a low consensus of agreement hmthe respondent group. Many respondents suggested that while it is critical to acknowledge prejudices, the importance of this factor in selecting DRTs is minor. As an example, one respondent wrote "while Iprejudices] will undoubtedly come to the surface they are separate fiom the ability of a technique to be effectively utilized". However, even with this level of disagreement there was strong recognition that prejudices do play a role in
DRT seiection. Reasons for supporting prejudices, as a dispute factor comonly, related to past ethnic dislikes that cm affect a dispute, and to the suggestion that prejudice can be "an explosive uigredient, particularly in cultural and ethnic mixes".
Also, according to one respondent, culturally divergent opinions about dispute resolution and third party intervention exist, and "mediation and arbitration suggest a literate, lateral minded public that values third party expertise -- this is not appreciated or understood by al1 cultures". The group was most polarized in rating this dispute factor.
It is important to note that there was no consensus on disagreement about the importance of any background dispute factor in selecting DRTs. However, every dispute factor received some level of strong disagreement fiom some respondents. 4.2.3 Selecting a Dispute Resolution Technique for Background Dispute Factor S tatements
SeIecting a dispute resolution technique for each background dispute factor statement involved respondents considering their experience and deciding on the most appropriate DRT. It is important to recall that the 10 background dispute factors tested for importance were expressed as 11 dispute factor statements. This occurred because the dispute factor related to peoples' attitudes toward certain DRTs, based on past experience, was expressed as two separate dispute factor statements since both were considered worst-case scenarios
(see Table 4.3, dispute factor statements 3 and 11). It is also 1st Choice 0 2nd C hoice important to recall that worst-case scenarios were used for dispute Neg Med Arb Lit Oih factor statements (see Section, DRT Figure 4. l :Overall Firsr and Second Choice Selecrions of 3.5 -2).The respondent group a Dispute Resolution Techniquesfor Background Dispute Factor Statemenîs chose mediation as the preferred
DRT for the background dispute factor statements 42.7% of the time (see Fi,we 4.1).
Arbitration was the most fiequently selected second choice. Respondent reasons for selecting mediation as a first choice involved the ability of a neutral third party to focus discussions, to offer a different viewpoint, and to help to restore communication.
Mediation received the highest selection rate with dispute factor statement 3, Parties thar have had negative experiences with negotiation in the past (see Table 4.3). A common theme for selecting mediation in connection to this statement was the perceived benefits a neutral third party can bring to the dispute resolution process.
66 Table 4.3: Selection of a Dispute Resolution Technique for Background Dispute Factor Statcments
First Choicc for DRT Second Choice for DRT Dispute Factor Statcments Total (Number of Respondents Rcporting) (Number of Respondents Repoiiing ) (worst case) (N=40) (N=40) Neg.- 1 Med. 1 Arb. 1 Lit. 1 Other a Nee.- I Med. 1 Arb. 1 Lit. 1 Other 1 There have been past unresolved 4 19 10 2 3 38 4 5 14 disputes between parties. 1 want to have future 2 5 8 2 O 2 business and/or social interaction. Some parties have had negative experiences with negotiation in the
parties' basic values or principles.
dis~utehave broken down. 6 There is distrust among some parties 5 2 3 6 2 3 in a dispute. 7 Some parties arc not adversely affected by a failure to settle a water related dispute. 8 Parties that have an established long- term water use argue to maintain that use. 9 Data on existing water uses relevant in 20 9 3 1 5 a dispute are unavailable. 1 10 1 Some people express prejudices (e.g., 1 ethnic, religious, social) in a dispute 8 18 7 1 4 situation. 11 Some parties in a dispute have had 1 negative experiences with mediation in 11 9 11 2 4 1 the past. Neg. = Negotiation; Med. = Mediation; Arb. Arbitration; Lit. = Litigation; Other = Examples of respondent reasons for this theme were: "[an] outsider could overcome
negative experiences"; "going for mediation could allow for understanding why
negotiation didn't work"; and, "the use of a third party can deflect confrontation between
parties".
Communication between parties has broken down as a dispute factor statement
also received a high selection rate for mediation. Dominant reasons for selecting
mediation centred on the ability of a mediator to process and enhance dialogue and thus
keep communication flowing between parties. Supporting this view, one respondent
wrote: "a mediator may serve to pinpoint reasons for the breakdown and suggest other
options for continuation.. .". The strength of preference for mediation was substantiated
by dispute factor statement 11, Parties having negative experiences with mediation in
the past. Mediation was selected by 24.3% of the respondent group. Reasons for this
rating were based on the need to "ûy again".
While respondent group preferences for mediation was the highest, negotiation was selected first 27.9% of the time. For dispute factor statement 2, Someparties want future business and/or social interacrion. negotiation was overwhelmingly favoured as a
DRT, at a 67.5% selection rate. Respondents ofien cited business andior social connections and relationships between parties as the reason negotiation would be successfùl. Respondents who supported this view wrote that "both Iparties] have valid and irnmediate reasons to settle the dispute" and "if they want to have fùture interaction they may be willing to talk things out".
When al1 first choice selections for a DRT were considered, 70.6% of the selections were for informal DRTs such as negotiation and mediation, over more forma1 techniques such as arbitration and litigation. For second choice DRT selections,
arbitration, followed closely by litigation and mediation, was favoured. The second
choice data indicated that the second round respondent group favoured more forma1
techniques such as arbitration and litigation in the event that a less formal DRT should
fail or not be available.
The questionnaire ïncluded an opportunity for respondents to suggest other dispute resolution techniques which, in their expenence, had been helpfiil in resolving water resource disputes. The following are respondents' suggestions for alternative dispute resolution techniques:
a peer review process by coequals within the community can help increase
tnist and result in timely settlements;
an independent board can act similar to binding arbitration to reach an
agreement;
a legislated enforceable code would, according to one respondent, alleviate
al1 disputes since the law would have to be upheld; and,
the Ministry of Environment was put forth as a dispute resolution technique.
However, the specific mechanism used within the Ministry was unclear.
Respondent suggestions for appropriate dispute resolution techniques represent informal mechanisms, such as a "peer review" process, and more formal techniques, such as an
" independent board". 4.3 SITUATIONAL DISPUTE FACTORS
Situational dispute factors form because of the dispute. They can be thought of as contextual influences that arise with a dispute and motivate parties to prefer certain dispute resolution techniques.
4.3.1 Experience with Situational Dispute Factors
The first round respondent group reported high experience levels flesl60%) with nine of ten situationai dispute factors (see Table 4.4). The respondent group indiczted that 92% had experienced dispute factor 3 related to the involvement ofparties who strongly believe in the "nghtness" of heir position. This dispute factor had the
Table 4.4: Respondent Group Experience with Situational Dispute Factors
Experience Type of Dispute (%) Situational Dispute Factors Yes (%BI \Vater I Land-Use I Other Increasing personal time pressures (e-g., 1 the pressure on one or more parties to 1 79 1 48 1 42 resolve the dispute as quickly as possible). The number of people involved in a local -, -. 88 57 40 f dispute. 1 1 1 Involvement of parties who strongly 92 52 48 believe in the "rightness" of their position. 4 Parties' desire to maintain their privacy. 38 42 58 Personality clashes between people in the 75 41 48 dispute. 6 The tactics parties use in a local dispute. 83 57 40 The degree to which the main issues in a 83 57 40 ' dimute can be resolved. The degree to which the parties agree on 83 48 48 4 thedefinitionoftheissues. 9 Number of issues in a dispute. 63 54 46 O 10 Presence of imposed deadlines. 71 52 44 4 Suggested Situational Dispute Factors Proximity to the proposed problem. ~etenninin~the best possible solution to the problem. Seasonal factors. Water well interference- gas drilling. Outside interests. highest level of experience for this category. However, respondents reporteci a relatively low level of experience with dispute factor 4 Parties' desire to maintain theirprivacy, with only 38% indicating that they had experienced this factor.
The respondent group expenenced situational factors in several types of local disputes. Water disputes were the most common type of disagreement. This is not surprising since respondents with past water dispute experiences were targeted. Land- use disputes had significant leveis of reçpondent group expenence, which indicates an area of fiequent conflict involving this group. Also, the respondent group experienced situational factors in political, persona1 and family-related local disputes. Overall, situational factors were experienced in al1 contexts, but most fiequently in water disputes.
Situational dispute factors suggested by the firçt round respondent group yielded some possible factors for inclusion in round two of the questionnaire. Suggested dispute factors such as "Proxirnity to the proposed problem", "Deteminhg the best possible solution to the problem" and "Outside interests" were regarded as unfocused and inappropriate for use in the second round. A suggestion relating to "Seasonal factors" appeared to ciosely match a water resource dispute factor related to water quantity and did not warrant a separate entry. One dispute factor, Parties that act cautiously to protect their interests, was added to the second round questionnaire from a first round background dispute factor suggestion. It should be noted that one first round dispute factor, The degree to which the main issues in a dispute can be resolved, was excluded from the second round due to the unfocused nature of this factor. 4.3.2 Importance of Situational Dispute Factors
The second round respondent group reached a high to medium Ievel of consensus on the importance of five of nhe situational dispute factors (see Table 4.5). Of al1 situational dispute factors the highest degree of consensus was reached on the
importance of dispute factor 6, Depning the issues relevant in a water dispute. Common reasons that contributed to a high group consensus for this factor revolved around the need to understand the issues to make sound decisions, and the fact that some DRTs are more appropriate where issues remain undefined. Two representative statements make these themes clear: "cornplex and technical [issues] rnay eliminate possible techniques"; and, the "need to understand the issues before possible solutions can be explored". Only a low consensus on importance was reached for dispute factor 2, The number ofparties in a dispute. Respondents' reasons for opposing this factor related to a difficult and cumbersome process, which can increase time requirements when stakeholder numbers are high. For example, one respondent wrote "except for a timing restriction, it may only affect how a dispute resolution technique is structured". This was a cornmon theme for those who strongly disagreed with the importance of this factor. However, respondents who strongly agreed with this factor suggested that it will affect DRT selection because, as one respondent stated "more parties = more complexity = Iess chance negotiation will be effective". Dispute factor 9, The extent to which parties act cautiously to protect their irtterests. also received a low group consensus on importance. A cornmon theme for strongly supporting this factor was a recognition that the more parties have at stake in a dispute the more cautious and stubbom they may be. The following statement represent Tablc 4.5: linportance of Situationnl Dispute Factors
(NUMBERS OF RESPONDENTS SITUATIONAL DISPUTE FACTOR -SA* WA* Time pressure on any party in a dispute will influcnce the 24 High 1 SS-WS selection of a dispute resolution technique. - The number of parties in a dispute will influence the type of 18 Low SS-WS dis~uteresolution techniaue chosen. 1 The presence of parties who maintain the "rightness" of their position will influence the type of dispute resolution 16 Medium SS-WS technique chosen. - Maintaining privacy is an important factor when deciding on 13 an appropriate dispute resolution technique. - Personality clashes between parties play a role in the 2 5 High 1 SS-WS selection of a dispute resolution technique. - Defining the issues relevant in a water related dispute is 28 High SS important before selecting a dispute resolution technique. 1 The number of issues in a dispute will affect the type of 13 dispute resolution technique chosen. - The presence of an imposed deadline will affect which 2 1 Medium 1 SS-WS dispute resolution technique is used. - The extent to which parties act cautiously to protect their interests will affect which dispute resolution technique is 1O Inw / SS-WS used. - trongly *+SS = Strong Support; WS = Weak Support; None = no clear position on support this view: "If there is a lot on the line - the harder the fight". Altematively, respondents who strongly disagreed on the importance of this factor argued that cautiousness is good and can occur with any DRT.
No consensus on the importance of situational dispute factors occurred with dispute factors 4, Mainfainingprivacy, and 7, nenumber of issues in a dispute. Some respondents viewed maintainingprivacy as an important factor related to trust between parties, control over the process, and enhancing confidence in the process. However, a cornmon theme for a "strongly disagree" rating centred on maintainhg the transparency of the dispute resolution process since "water is a public domain" or a "public resource so any dispute over it cannot be anything but public". The number of issues in a dispute. as a dispute factor, received the greatest number of "strongly disagree" responses and the highest degree of agree/disagree polarity . While reasons strongly supporting this factor cornrnonly focused on the complicated nature of handling many issues as a reason for importance, other respondents contended that the number of issues merely affects the degree of difficulty and is not important in the selection of a DRT. A respondent who strongly supported this factor wrote, "as the number of issues increases, the more complex the problem may be perceived". Examples of opposite opinions were that "the number simply changes your approach during the process" and "it makes some of the mechanisms more difficult but does not rule them out".
4.3.3 Selecting a Dispute Resolution Technique for Situational Dispute Factor Statements
In the second round questionnaire, 45.8% of the respondents' DRT selections were for mediation as a first choice (see Figure 4.2). Negotiation had significant support f?om the second round respondent group and was selected 27.1% of the time as a first choice DRT. Together mediation and negotiation received 72.9% of fkst choice DRT selections. More specifically, there was strong support for using mediation, at a 71 3% selection rate, to resolve Personality clashes between people in a dispute (see Table 4.6).
A common reason for this selection related to the capacity of a third party, or mediator,
to diffüse tensions due to 1 personality clashes. According to one respondent, a mediator can help parties "focus on the issues, rather than on the personalities". Neg Med Arb Lit 0th Negotiation was most frequently DR7 Figure 4.2:Overall First and Second Choice Selecrions selected first for dispute factor of a Dispute Resolution Techniquefor Situarional Dispute Factor Statemenfs statement 1, Parties under comiderable time pressure, dispute factor statement 4, Maintaining privacy, and dispute factor statement 7, Working with an externaiiy imposed deadline. Cornmon reasons for selecting negotiation for these dispute factor statements is that negotiation "may Save tirne" when time pressure is considerable or when an extemally imposed deadline exists and, also, negotiation "is the only method with a modicum of privacy", where privacy is important.
The respondent group selected arbitration 34.7% of the time as the "second best"
DRT for resolving water disputes. There was also a strong group preference for mediation as a second choice, at a 30.4% selection rate. Overall, there was a more even split in the group preference for a second choice between informal and forma1 DRTs
(informa1 43.6%, forma1 50.6%) in this dispute factor category. The tendency to prefer Table 4.6: Selection of a Dispute Kesolution Technique for Situational Dispute Factor Statements
First Choice for DHT Second Choice for DRT Total Total Dispute Factor Statcnient (Number of Rcspondents Re1 trt hg) (worst case) (N-40) Ot her m=W 7 1 1 Some parties are under 1 1 1 considerable time pressures to reach an agreement. , A large number of parties are
of their position.
1 4 1 d&ng the dispute resolution process. Personality clashes occur among
unclear . 1 1 1 An extemally imposed deadline 1 7 1 on al1 parties limits the time
be discusscd in thc dispute. Some parties act vcry cautiously in order to protect their interests. Neg. = Negotiation; Med, = Mediation; fonnal techniques, as a second favoured technique, was not as strong as with bac kground dispute factors
4.4 CAPABILITY DISPUTE FACTORS
Capability dispute factors characterize the ability of parties to participate effectively in the dispute resolution process. For example, ability or capacity can refer to a party's financial resources, ski11 level, or ability to understand specialized information.
4.4.1 Experience with Capability Dispute Factors
Analysis of first round respondent group experience revealed high expenence
Ievels (Yes 2 60%) with four of six capability dispute factors (see Table 4.7). The data indicated that 96% of respondents ( highest for this category) had experienced dispute factor 1, D~firencesin financial resources. and 83% experienced dispute factor 3,
Ability of parties to use and understand technical and otherforms of specialized information. The least frequently experienced capability dispute factor was 2, The potentiai of parties to leam unfumiliar cunjlict resolution techniques, with only 37% indicating that they had experienced this factor. A low level of experience was received for dispute factor 5, Parties' willingness to risk an unfavoumble outcome, with only
46% indicating that they had experienced this factor.
The respondent group experienced capability dispute factors in diflerent types of local disputes. Water resource disputes were most fiequently experienced with capability factors, while land-use disputes were somewhat less fiequently experienced by the first round respondent group. Also, the respondent group experienced capability dispute factors in political and persona1 related local disputes. Table 4.7: Respondent Group Experience with Capability Dispute Factors
Erperience Type of Dispute (%) Capabiiity Dispute Factors Yes (./O) Water Land-Use Other 1 Differences in financial resources 96 51 42 7 available to the parties in a dispute. 2 The potential of parties to lem unfarniliar dispute resolution 37 54 46 O techniques. 3 Parties' abilities to use and understand technical and other forrns of 83 54 38 8 specialised information. 4 Level of ski11 among participants in r 62 50 41 9 using dispute resolution techniques. 5 Parties'willingnesstoriskan 46 47 47 6 unfavourable outcorne. 6 The capacity of the parties to 58 38 50 12 implement agreements. Suggested Capability Dispute Factors To what degree is the person(s) going to go to resolve a dispute. Most timesihese problerns are abou&ople, they are rarely about water resources. Finances are extremely important. Resû-ict large livestock operations until safeguards in place to protect groundwater. These ~roblemsare about ~eode.
Respondents suggested four first round capability dispute factors that were
reviewed for inclusion in the second round questionnaire. The suggested factor "To what degree is the person going to go to resolve the dispute" was similar to an existing factor relating to a parties' willingness to risk an ur$avourable oufcome and thus it was not
included separately in the second round of the survey. One suggestion "Finances are extremely important" appeared to be a reiteration of the dispute factor relating to dlflerert ces in fitancial resoiirces. The suggestion "Restrict large livestock operations until safeguards in place to protect groundwater" was considered a prescriptive measure and not a dispute factor. Therefore, inclusion in the second round questionnaire was not considered appropriate. The suggestion that "These problems are about people" appeared to be a general observation and not a dispute factor suitable for this study.
78 4.4.2 Importance of Capability Dispute Factors
In the second round questionnaire the respondent group reached a high to medium level of consensus on the importance of four of six capability dispute factors
(see Table 4.8). For two dispute factors, no consensus on importance occurred. It is important to note that no capability dispute factors received a consensus on disagreement.
The dispute factor Direrences infinanciaf resources received the strongest consensus on importance of al1 capability dispute factors. Respondent reasons for a strong agreement rating related to the perceived cost of effectively representing a party's interests, and the power inequalities that result fiom differences in fmancial resources.
Some examples of respondent reasons supporting this view are given betow.
Cost will dictate how far parties will go to resolve differences.
Of course: a favouite of OMNR. This is in fact what often guides a policy of
assuming new mandates knowing that any new opposition will be unable to
match the legal resources available to the stronger Party, even if the issue is
one which represents gross intrusions into another's holdings, or clearly will
lead to grossly unfair consequences to the other party
The David and Goliath case study. However, participants should remember
David only needed a rock he picked up dong the wayside.
The respondent group indicated no agreement on importance for dispute factor 2,
7ïw potential ofparties to fearn unfamiliar DRTs. A cornmon theme derived fiom respondent reasons was that people are capable of learning new DRTs with guidance fiom neutral third parties. However, according to one respondent, "dispute resolution Table 4.8: Iniportance of Capability Dispute Factors
KTANCE BER OF INDENTS CONSEN- CAPABILtTY DISPUTE FACTOR BLANK SUS - .r SA* WA* SD* - II- Differences in Financial resources available to parties in a dispute will affect which dispute resolution technique is 29 2 High used. - The potential of parties to leam unfamiliar dispute resolution technique(s) is a major consideration when 13 9 deciding how to resolve a dispute. The ability of parties to understand technical and other specialized information is an important factor in sclccting 12 7 a dispute resolution technique. The skill each party has in using dispute resolution 13 4 Medium SS-WS techniques will affect which technique is selected. - - Parties' willingness to risk an unfavorable outcomc is 18 6 Medium SS-WS important when selecting a dispute resolution technique. The capacity to implemcnt an ascement is essential when 7 High SS-WS considering dispute resolution technique. 1 - - 1 - *SA= Strongly Agree; WA= Weakly Agree; WD= Wcakly Disagree; SI: 1 Stron; y Disagree **SS = Strong Support; WS = Weak Support; None = no clear position on support techniques assume that the participants can understand and appreciate the process".
Overall, a cornmon view regarding the importance of this dispute factor was that it
should not affect the technique seleclion process, but that it would Likely affect the time
needed for implementation due to parties' tirne requirements to leam new skills. This view was reflected by these respondent comrnents: "It is not rocket science, so it should not be a factor" and "Iearning takes a bit longer". The ability ofparties to understand technical and other specialized information as a dispute factor received no consensus
fiorn the respondent group. Some respondents shared the opinion that disparities in understanding and power differences play an important role in DRT selection. One respondent, in supporting the importance of this dispute factor, commented that
"Disputes are ofien caused by a misunderstanding of technical information" and another wote "In practice one side has al1 the 'understanding', and the other very little. This may make for a quick settlement, but, probably a very unfair one.. .". However, one respondent who strongly disagreed on the importance of this factor suggested that technical consultants can be used with any DRT, and, as another respondent wrote, "an ability to understand specialized information is generic to al1 techniques". Thus, according to a nurnber of respondents who strongly disagreed on importance, this dispute factor should not impact the DRT selection process.
4.4.3 Selecting a Dispute Resolution Technique for Capability Dispute Factor Statements
Selections by second round respondent of dispute resolution techniques (DRTs) for each capability dispute factor statement produced data about respondent procedural preferences and accompanying reasons. Analysis of second round respondent selections revealed that 43.4% of fmt choice selections were for mediation (see Figure 4.3). While mediation received overall greater support as a first choice DRT, negotiation had greater
support in 4 of 6 dispute factor statements (see Table 4.9). In other words, it appears that overwheiming support for
mediation for two dispute factor
statements (3,4) has skewed the results to favour mediation.
Mediation was overwhelmingly
Neg Med Afb Lit supported for dispute factor DR1 staternent 3, Parties with lirnited Figure 4.3: Overall First and Second Choice Selecrions of a Dispute Resolution Technique for Cupability Dispute Factor Sraremenls a bility or willingness to razderstand and use technical or specialized infonnation. and dispute factor statement 4,
Parties with limiteci negofiafionskills. The reasons for selecting mediation when lirnited negotiation skills are prevalent generally related to the need of a neutral third party to offer assistance in the negotiation process to compensate where skills are hited.
Respondent comments such as "a mediator can make a party aware of an obvious imbalance in the negotiahons.. ." and a "mediator can help make up for weak negotiation skills" fairly represent respondents' reasons associated with selecting mediation. Where understanding technicai or specialised infonnation is an issue, a common theme for selecting mediation related to the ability of a mediator to help sort through technical issues, which cm help those with limited understanding to effectively represent their interests. The comment "a mediator can facilitate informal discussions and assist parties' ability to understand" fairfy represents this common view. Table 4.9 Selection of a Dispute Rcsolution Technique for Capability Dispute Factor Statemcnts
First Choice for DUT Second Choicc for DRT Total Dispute Factor Statcmcnts (Nuiilber of Rcspondcnts Reporting) (worst case) (N=40) - I Nce. 1 Med. 1 Arb. 1 Lit. 1 Othcr Yeg. 1 Med. 1 Financial resources that can be t used for dispute resolution arc 5 16 limited for some parties, but not others. 3 - 2 Some parties are unwilling or unable to leam to use unfamiliar 2 8 dispute resolution techniques. - - 3 Some parties have limited ability to understand and use technical 4 7 and other specialized information, 1 - - 4 1 Some parties have limited c 9 I 1 1 J 1 3 1 4 4 negotiation skills. 5 Some parties are unwilling to I c O' 3 16 1 1 risk an unfavorable outcome. 1 '" 1 -. 6 Some parties have limited capacity to imptemcnt an 14 9 4 10
agreement. 1 Neg. = Negotiation; Med. = Mediation; Arb. = Arbitral ln; Lit. = Litigation; O Negotiation, as stated earlier, received greater support in 4 of 6 capabiiity dispute
factor statements. Where Financial resources are limited, some respondents suggested
that negotiation was the least costly DRT, and when Someparties are unwilling or
zrnuble zo learn to use unfamiliar DRTs,the reasons stating that it is "the simplest form of communication" and that it "is a good starting point" fairly represent respondent views for selecting negotiation. Where Some parties are unwiifingtu risk an zrtffavuurable outcorne. negotiation was selected primarily because it gives parties the rnost control over the outcome and can "result in decisions parties can live with". In cases w here Parties have limited capacity to impliment an agreement, the reason that
"Parties can negotiate an agreement to their limitations" fairly represents the views of respondents that selected negotiation for this dispute factor.
Analysis of respondent group second choice DRT selections revealed that mediation received marginally greater support than arbitration (mediation 30.2%, arbitration 29.2%). However, litigation, arbitration and mediation were favoured, as second best DRT, for two dispute factor statements. Overall, forma1 DRTs were preferred as second choice DRTs over the use of informai techniques (informal 44.6%, forma1 55-4%).
Overall, the respondent group preferred mediation for both the first and second choice DRT selections. However, first choice data revealed that informa1 DRTs were s trong I y favoured (74.8%) compared to formal techniques. Second selections appeared to marginally favour forma1 techniques with a 5 1.0% support rate. 4.5 WATER RESOURCE DISPUTE FACTORS
Water resource dispute factors are characteristics of water supply and demand that can affect the selection of a dispute resolution technique. For example, the availability and quality of water resources can influence how a dispute unfolds and how it is resolved.
In the fmt round of the questionnaire, respondents were asked to indicate the type of dispute (e.g., water, land-use) in which the dispute factor played a role. Since water resource dispute factors were already focused on water disputes, indicating the type of dispute was considered redundant. instead, when indicating experience with water resource dispute factors, respondents were asked to briefly describe important aspects of a water dispute experiences in which the dispute factor played a role.
4.5.1 Experience with Water Resource Dispute Factors
In the first round questionnaire the first round respondent group reported high experience levels (Yes r 60%) for six of six water resource dispute factors (see Table
4.10). Experience levels were similar for al1 six dispute factors. It should be recalled that people with pst expenences with water resource disputes were targeted for participation in the study.
Suggested first round water resource dispute factors were reviewed for inclusion in round two of the study. The suggested factor regarding environmental impact on water resources was included in the second round of the survey. A respondent suggested the dispute factor "amount of water consumption". However, it was not included since it closely matched other water quantity dispute factors and would be difficult to define. Table 4.10 Respondent Group Experience with Water Resource Factors
Water Resource Dispute Factors Experience I Yes(%,. . The impacts of a disputed water use (e.g., 87.5 groundwater contamination). Perceived consequences of disputed activity (e-g., fear 87.5 of a water shortage). Resource availability (e-g., the amount of water 91.7 SUPP~Y1- Availabiliiy of temporary or permanent water 75 .O surmlies- 1 .. 1 5 tv~e water .O l The of use (ex..W. domestic vs. commercial). 1 75 1 -. . 1 6 1 Uncertainty over scientific and technical information. 1 83.3 Suggesteà Water Resource Dispute Factors Amount of water consumption. Environmental impact on our watercourses or natural environment. Cost of water. Future expansion.
The other two suggestions were not included due to the unfocused nature of these suggestions.
Respondents were asked to describe specific types of water disputes associated with the experience of water resource dispute factors. While water dispute descriptions were specific in nature, an analysis of 1 15 water dispute descriptions revealed some common types of disputes where
Qwntity Quality Agricuiture Env. water resource dispute factors Impact Typa of Watw Dhputm played a role. Respondents Figure 4.4: Percent of Respondent Group thct Experienced Dispute Factors for Each Type of Water Dispute described disputes related mainly to water quality, water quantity, environmental impacts, and impacts on agriculture (see
Figure 4.4). For exarnple, respondents described agricultural disputes as involving agricultural runoff, irrigation and drainage. Environmental disputes were described as impacts on wetlands and water levels in streams. Analysis of water dispute descriptions reveaied that 46% of the disputes described related to water quantity issues, 20% concerned water quality, 15% related to agricultural disputes and 10% concemed disputes over environmental impacts. The respondent group experienced roughly equal levels of agricultural, domestic and commercial disputes regarding dispute factor 5, Type of \-vateruse. However, respondent experience with municipal water disputes was comparatively lower. The final dispute factor in this category related to uncertainty over technical or scien t@c questions (dispute factor 6). Technical andor scientific uncertainty in water disputes was cornrnonly described by respondents as a problem of understanding technical information, believing technical or scientific experts, and/or problems with unreliable data.
4.5.2 Importance of Water Resource Dispute Factors
In the second round survey, respondents rated the importance of water resource dispute factors in selecting DRTs. The respondent group reached a medium to low level of consensus on the importance of three of six water resource dispute factors (see Table
4.1 1). The respondent group indicated no agreement on the importance of three water resource dispute factors. No dispute factors received any consensus on disagreement.
The degree of negative impact of a disputed water use, as a dispute factor, received medium consensus fiom the respondent group. A common theme for this rating is the effect on parties that are negatively impacted. Some respondents suggested that
"when risks are very high, we will tend to depend on highly formalized or Tablc 4.1 1 lmporfancc of Watcr Hcsourcc Dispute Factors
(NUMBER OF I I I RESPONDENTS 'ONSEN-SUS WATER RESOURCE DISPUTE FACTOR REPORTMG) BLANK SUPPORT** (N = 40) SA* I WA* I WD* I SD* I I I The degree of negative impact of a disputed water use is important to assess when choosing a dispute 20 7 4 7 2 Medium SS-WS resolution system, Water resource availability will influence which 15 4 9 9 3 None None dispute resolution technique is selected. The availabiliîy of a temporary water supply will impact the selection of a dispute resolution technique. The type of water use (e.g., domestic vs, commercial) will influence the selection of a dispute resolution technique. Uncertainty over scient i fic andlor technical questions will affect what dis~uteresolution techniaue is used. The perceived consequences or impacts of a disputed activity will affect the choice of a dispute resolution
I technique, *SA= Strongly Agwe; WA= Weakly Amce; WD= Weakly Disagree; SD= Strongly Disagree **SS = Strong Support; WS = Weak Support; None = no clear position on support legalistic mechanisms" especially "when precedent setting is an issue". The availabiiify of a temporary wafersi~ppfy, as an important dispute factor for DRT selection, received low consensus on agreement. According to some respondents, a temporary supply gives more time to resolve a dispute and it is an unimportant factor in deciding the approach to resolve a dispute. An example respondent comment relating to this theme states that
"this will allow time to make sure the dispute gets resolved, no matter what technique is used".
The respondent group reported no consensus on importance with three water resource dispute factors. Dispute factor 4 relating to the type of wafer use. received the greatest degree of disagreement. Although reasons for a strongly disagree rating commoiily involved a simple statement of disagreement, some respondents suggested that this is not a definitive factor when selecting a DRT unless the financial resources associated with the use types differ greatly. Uncertainty over scientific and/or technical questions as a dispute factor received no support. Some respondents supported this dispute factor and suggested that formal DRTs, such as Iitigation, require greater certainty than less forma1 techniques. However, some respondents suggested that uncertainty can be clarified during the process and thus should not be a factor in determining a DRT. Comments associated with this theme include "litigation is less likely to solve a dispute if uncertainty exists" since "litigation requires greater certainty".
However, one respondent suggested that "there will always be uncertainty [but] it shouldn't affect the selection of a technique". 4.5.3 Selecting a Dispute Resolution Technique for Water Resource Dispute Factor S tatements
Analysis of selections of DRTs for water resource dispute factor statements indicated that negotiation was selected 35 -0% of the tirne by second round respondents
(see Figure 4.5). This contrasts to other categones where mediation was the j~lstChoice. most preferred DRT. --O 2nd Choice :
However, in five of seven dispute factor statements, Neg Med Arb Lit Otti mediation received support DRT Figure 4.5: Overall First and Second Choice SeZections levels approaching those of of a Dkpute Resolution Techniquefor Water Resource Dispute Factor Statements negotiation. Negotiation had a particularly high selection rate as a first choice for dispute factor statement 2, The water resource is limited (see Table 4.12). Reasons centred on the low cost and flexibility of negotiation as a DRT. Respondent reasons refiecting this view included: "It is a less costly process" and "it allows consideration of multiple interests". Negotiation was also strongly preferred, at a selection rate of 4U%, where a temporary water supply is unavailable to affected water users in a dispute. Some cornmon themes related to respondent reasons are that negotiation is the quickest and the most cost efficient
DRT.However, arbitration as a first choice for this dispute factor statement received selection rates approaching those of negotiation. The reason for this selection centred on the time efficiency of arbitration coupled with the need for Table 4.12 Sclection of a Dispute Rcsolution Techiiique for Water Hesource Dispute Factor Statcments
First Choice for DRT Sccond Choicc for DRT Dispute Factor Statcments Total (Number of Respondents Reporting) Total (Number of Respondents Reporting) (worst case) (N=40) (N=40) Nen.- 1 Med. 1 Arb. 1 Lit. 1 Other Nez. 1 Md. 1 Arb. 1 Lit. Other A disputed activity has highly negative impacts on water 1O 9 6
resources. 1 1 I The water resource is limited. 17 6 4 A temporary water supply is unavailable to affected water 14 6 9 users in a dispute. 1 1 1 A domestic water supply is affected by the disputed use. bll 1 A commercial user is affected by 11 9 6 a dispute. There is a high degree of uncettainty over scientitic andor technical issues conceming a water resource. There are signi ficant impacts of a disputed activity on water 9 9 6 A- Neg. = Negotiation; Mcd. = Mediation; Arb. = Arbiîration; Lit, = Litigation; Other = Other technique a definitive decision that is binding on al1 parties. Arbitration, according to one
respondent, would provide "a definite course of action in a short the".
Respondent second choice DRT selections revealed a group preference for litigation for
water resource dispute factor statements followed by mediation and arbitration,
respectively. This category is the only one in which litigation is supported as a second
choice DRT.
Similar to other dispute factor categories, informal DRTs were favoured as a fint
selection at a 59.5% selection rate. This is contrasted by the preference for formal
techniques, as a second choice DRT, at a selection rate of 56.6%.
4.6 SUMMARY
The data gathered in this research are substantial and they provide the basis for designing a dispute resolution management system addressing the stated objectives in
Chapter One. The two round iterative questionnaire was structured to cornpiete three tasks: first, the exploration of dispute factors by testing for experience and requesting suggested dispute factors; second, the testing of dispute factors for their importance when selecting DRTs; and, third, the selection of DRTs for each dispute factor.
It is important to note that while the response rate for the two questionnaires was
Iow, the respondent group, in both rounds of the survey, rated and commented on the majority of dispute factors and related statements. More specifically, on average 95.4% of the questions were completed by both respondent groups. in other words, the respondents completed almost al1 questions presented to them. This is significant considenng the length of the second round questionnaire. Respondent expenence with dispute factors revealed that 23 of the initial 27 dispute factors had been experienced by at least 60% of the respondents. Also, respondents encountered dispute factors in water, land-use and other types of local disputes. Water disputes comprised 52% of the local disputes where dispute factors played a role. Surpnsing is the high experience rating of land-use disputes, at 46%, since the participants in this study were targeted for their expenence with water resource disputes. This may indicate that land-use disputes occur more fiequently than water disputes. However, it is important to note that land-use and water issues ofien occur in conjunction with each other (Mitchell, 1995)
The second round respondent group revealed that dispute factors are important when selecting a DRT. Of 3 1 dispute factors, 24 received high to medium consensus on importance, while 7 received ambiguous consensus from the respondent group. Two dispute factors were found to have a strongly polarised consensus fiom the respondent goup. It should be stressed that no consensus on disagreement for importance was reached for any dispute factor.
Testing the respondent group for DRT preferences indicated that the respondent group preferred the use of mediation when dispute factor statements were expressed as worst- Neg Med Arb Lit ûth DR1 case scenarios (see Figure 4.6). Figure 4.6: Percentage Respondent Support for Dispute Resolution Technique with AI1 Dispute OveraII, informal DRTs such as Factor Statements mediation and negotiation were overwhelmingly preferred, with a selection rate of 70.7%, compared with more formal techniques. Formai techniques were selected 54.5% of the time over informal techniques when respondents were asked to select a "second best" DRT. However, it is interesting to note that mediation still had strong support as a second choice technique.
For 10 of 33 dispute factor statements, mediation was selected as a first choice
DR?' by at least 50% of the second round respondent group. Negotiation was selected for 2 dispute factor staternents by at lest half the respondent group, and litigation and arbitration received less than 50% respondent group support for a11 dispute factor statements. For second choice DRT selections, mediation received at least 50% respondent group support for only 2 dispute factor statements while arbitration was chosen by at least 50% of the respondent group for 4. For second choice DRTs, litigation and negotiation were selected by less than 50% of the group.
When a 40% selection rate was used to measure ktchoice DRT support, negotiation and mediation were selected by at least 40% of the group for 7 of 33 and 14 of 33 dispute factor statements respectively. However, for al1 dispute factor statements, arbitration and litigation failed to gain at least a 40% support rate from the respondent group. For second choice DRT selections, at least 40% of the respondent group selected arbitration for eight dispute factor statements, mediation for six and litigation for five.
Negotiation was not selected, as a second choice DRT, for any dispute factor statement by at lest 40% of the respondent group.
It is important to note that the questionnaire results showed no evidence of similar attitudes and DRT selections according to professional backgrounds (e.g., farmers, local govemment). in other words, an analysis of questionnaire results did not indicate that respondents with similar backgrounds had similar attitudes toward the
importance of, and DRT selections for, dispute factors.
In summary, the majority of dispute factors (in al1 categories) were experienced
by the respondent group in local disputes. Also, important first round suggested dispute
factors were significant contributions to the second round of the survey. The respondent
group had a medium to high level of consensus on the importance of the dispute factors
when selecting DRTs. High experience ratings for dispute factors coupled with
importance suggests that the consideration of dispute factors are integral to selecting
DRTs. However, water resource dispute factors did not receive a high consensus on
importance when compared to other dispute categories. This suggests that water
resource factors may not be as important as other categories of dispute factors when
selecting DRTs. Mediation had strong support as a first choice DRT with significantly more dispute factor statements than negotiation. Arbitration received the strongest support as a second choice selection followed by mediation. CHAPTER FM
DESIGNING A DISPUTE MANAGEMENT SYSTEM
5.1 INTRODUCTION
Dispute resolution techniques @RTs) are often used in an ad-hoc, unstructured and piece-meal fashion. Therefore, DRTs are often structured for isolated dispute situations. However, many authors have determined that people, organizations and cornmunities in dispute situations often utilize a number of identifiable and linked procedures to reach settlements (Sarat, 1976; Amold and Cimivale, 1992; Pmitt et al.,
1992). Therefore, instead of seeing a series of disputes within a particular institution or cornmunity as individual incidents, researchers have recognized various connections arnong those disputes and how they are resolved as systerns (Carpenter and Kennedy,
1988; Ury et al., 1989; Constantino and Merchant, 1996). For water resource disputes, viewing the management of disputes and the use of DRTs as systems provides opportunities to learn critical information about patterns of water resource disputes, what resolution techniques are appropriate, when to use DRTs, and how they are used (Ury et al., 1989; Constantino and Merchant, 1996). In other words, a dispute management system is as much a conceptual aid for the analysis of disputes as it is a dispute settlement or resolution process.
Designing a dispute management system involves consideration of both the
"macro" and "micro" aspects of managing disputes. Macro aspects involve primarily an assessrnent of the organizational framework associated with water resource dispute resolution in Ontario (see Chapter Two). Micro aspects involve a consideration of many variables that help determine when to use another DRTs to resolve water disputes, what
DRT should be used, and how a dispute management system should be used.
The aim of the questionnaire "Discovering Coinmon Ground" was to gather data
that would assist in the creation of a dispute management system (see Chapters Three and Four). The data enabled the development of a dispute management system for water disputes in Ontario. This chapter outlines this dispute management system. It begins by establishing the context in which DRTs appear best suited. This is accomplished through the identification of preferred DRTs for individual dispute factors, a process, which helped to determine when to use DRTs and rvhen to change fiom the use of one DRT to another. Next, a system of DRTs is proposed that details what DRTs appear appropnate.
Then six principles are outlined that suggest how the system should be used.
5.2 DEFINING THE WEN,WHA T AND HO W OF TEE DISPUTE MANAGEMENT SYSTEM
In this study, the development of a dispute management system was related to three areas. First, the preferences of the respondent group were assessed to detennine an initial (first choice) DRT selection. Second, the reasons for first choice DRT selections helped define the context in which specific DRTs best operate. Third, respondent preferences for a "second best" DRT were analyzed to help determine alternate DRTs.
The resulting information helped establish the when, what and how of a dispute management system.
5.2.1 Determining an Initial Selection for a DRT
A main focus of the questionnaire was determining the link between dispute factors and respondent preferences for DRTs. This heiped to detennine when and under what circumstances DRT use is appropriate. Table 5.1 sumarizes the links between dispute factors and the degree of support for a !ht choice DRT, which helped define the conditions under which respondents supported the use of specific DRTs. Once again, it is important to recall that 'support' for a dispute factor indicated the degree to which the respondent group endorsed the importance of a dispute factor in selecting a DRT.
'Consensus' is a rneasure of the degree of agreement or disagreement the respondent group reached on the importance of a dispute factor.
As described in Chapter Four, mediation received moderate to strong support
(240%) for fourteen of thirty-three dispute factor statements (Table 5.1). For a majority of background (6 of 11) and situational (6 of 9) factors, mediation was the preferred fkst choice DR?. It was also the first choice DRT for 2 of 6 capability dispute factors.
Additionally, mediation received close to the same level of support as negotiation for five of seven water resource factors (see Chapter Four). Also, there was a moderate to high degree of consensus within the respondent group on the importance of nine of fourteen factors associated with mediation. Only two dispute factors received no support for their importance when selecting DRTs. It is apparent that mediation is supported in the context of the greatest number of dispute factors. Therefore, under many dispute conditions that worst-case dispute faftors characterize, mediation should be a strongly considered for an initial attempt at reaching a senlement.
Respondent preference for mediation differs from the preference for negotiation found a study by de Loë-Kreutmiser (1998). The different findings appear linked to water resource use as the central focus of the dispute scenarios in the de Loë- Table 5.1 Linking Dispute Factors with Dispute Resolution Techniques
Dispute Resolution Dispute Factor Statements Technique (worst case) (First Choice)* = Some parties want to have future business andlor social interaction. Data on existing water uses relevant in a dispute are unavailable. Parties that have an established long-term water use argue to maintain that use. = Some people want to maintain privacy during the Negotiation dispute resolution process. Financial resources that can be used for dispute resotution are limited for some parties, but not others. The water resource is limited. A temporary water supply is mavailable to affected water users in a dispute. There have been past unresolved disputes between parties. Some parties have had negative experiences with negotiation in the past. Communication between parties in a dispute has broken down. There is distrust among some parties in a dispute A large nurnber of parties are involved in a dispute. Personality clashes occur among people involved in a dispute. The issues in a dispute are unclear. A large number of issues need to be discussed in a Mediation dispute. Some parties have a limited ability to understand and use technical and other specialized information. Some parties have limited negotiation skilis. There are fundamental differences in parties' basic values or principles. Some people express prejudices (e.g., ethnic, Moderate religious, soçiaI) in a dispute situation. (240%- m Some parties are involved who strongly maintain 49.9%)) the "rightnessttof their position. Some parties act very cautiously in order to protect their interests.
* Arbitration and litigation received less than 40% group support as first choice DRTs Kreutzwiser study . Also, that study did not incorporate impediments to resolution, which are sirnilar to worst-case scenarios that better contextualise dispute situations. The respondents in "Discovenng Common Ground" îndicated that the importance and use of water resource dispute factors, which is sirnilar in content to the information in the three dispute scenarios in the de Loë-Kreutzwiser study, is questionable when selecting DRTs and perhaps are unreliable indicators of respondent DRT preferences. However, it should be noted that the de Loë-Kreutzwiser study identifiai several situation-specific variables, such as finances available to each participant, level of trust arnong participants and ski11 levels of participants and third parties, which participants found extremely important. It is possible that incorporating a subset of these variables into the dispute scenario designs may well have resulted in an overall different DRT preference outcorne. It is important to note, again, that mediation was selected using worst-case scenarios for dispute factors in an attempt to represent realistic dispute conditions (see section 3.52).
Negotiation received significant overall support, with a 33.2% selection rate (see
Chapter Four). However, it only received a strong consensus (250%) with two of thirty- three dispute factors and moderate support (2 40%) for five dispute factors. According to respondent DRT preferences, negotiation is appropriate where the maintenance of long-term relationships is important and where there is significant uncertainty about data on existing water uses. Also, conditions for the use of negotiation appear to be associated with water resource dispute factors, such as The water resource is iimited and
A temporary supply is unavaiiable, and situational dispute factors associated with privacy and iim ited financiai resources. It appears that negotiation was preferred when dispute factors relating to water
quality, availability and use were considered. Also, negotiation received the highest
support for water resource dispute factors (see Chapter Four) with a 35.0% selection
rate. A conflict management study by de Loe and Kreutzwiser (1998), utilizing a
different methodology, came to a similar conclusion. Specifically, workshop
participants, when presented with three groundwater dispute scenarios, supported the use
of negotiation to reach a settlement. The content of the dispute scenarios was focused
mainly on water resource considerations such as the type of water use and the associated
impacts on water quality and quantity for affected users. When considering only water
resource characteristics and associated dispute factors, negotiation, in both this and the de Loë-Kreutzwiser study, was supported as an appropriate DRT.
While the link between negotiation and water resourçe dispute factors appears clear, respondents in this study showed the least support for the importance of water resource dispute factors when selecting DRTs. in other words, according to many questionnaire respondents, water resource dispute factors or characteristics should not be major factors when selecting DRTs. Therefore, basing DRT selection on types of water use and their impact on user water quality and quantity appears inappropriate. Since the
importance of water resource dispute factors when selecting DRTs received no to low overall consensus fiom the respondent group, recommending the use of negotiation to overcome the worst-case manifestation of these factors appears inappropriate.
Limitedfinancial resources, according to the literature, is a compelling factor in selecting negotiation as a first choice DRT. For instance, organizational and labour dispute literature cite this dispute factor as a compelling reason to use negotiation (Ury et al., 1989; Constantho and Merchant, 1996). This dispute factor also received
exceptionally strong support for its importance in selecting a DRT. This suggests that
under conditions of limited financial resources negotiation can be instrumental in
reaching an agreement.
Arbitration and litigation received comparatively low support Erom the
respondent group as a first choice DRT. However, arbitration received sorne support
(but not as a first choice) where parties' past experience with mediation was negative, where time pressures on parties were considerable, where fiindamentai differences in parties' basic values and/or beliefs existed, where past unresolved disputes between parties existed, and when parties believe strongly in the "rightness" of their position. It appears that arbitration can be linked with dispute factors that are difficult to handle.
Arbitration appears to warrant consideration, as a first choice DRT, when quick resolutions are needed -- especidly where parties' positions and interests appear
irreconcilable. Litigation, as a first choice DRT, received the lowest support fiom the group. The strongest support for this DRT was associated with the dispute factor statement related to when a disputed activity has highly negative impacts on water resources. Respondents indicated that litigation appears appropriate for disputes that require precedent setting, or involve legal issues. Also, legal proceedings can stop disputed activities quickly before and during the dispute resolution process.
5.2.2 Responden t Reasons for Selecting DRTs
In "Discovenng Common Ground" respondents were asked to give reasons for the seIection of a dispute resolution technique. An analysis of the reasons revealed some recumng themes for the first choice of a DRT. Themes ofien related to strengths and Table 5.2 Characteristics of DRTs from Respondent Comments
Mediation Better residual Helps to keq~ Win-lose outcomes Ensures follow feeling efforts focused possible through of settlement Least costly Helps move Helps to ensure Good forum for process along follow through of powerful parties the settlement Less pressure, Win-win outcome Can be the quickest Last ditch effort fewer demands possible process It is a quick start More control than Can stay away fiom Expensive process negotiation sensitive areas Potentiaiiy the Helps Factually focussed quickest communication approach process Win-win outcome Equality possible More pressure can possible be apilied to reach an agreement *The respondent group tlad a low selection ra : for arbiîration and litig ion as a first choice DRT. The reasons presented for these DRTs were taken fkom respidents selecting these as first choice DRT selections. weaknesses of the technique favored (see Table 5.2). For exarnple, many respondents described negotiation as a technique that is cost effective, potentially the quickest in reaching a settlement, and that can result in a win-win outcome for al1 parties. The literature indicates that negotiation is ofien associated with these attributes (e-g., Ury et al., 1989; Constantin0 and Merchant, 1996; Dukes, 1996). However, respondents also describe arbitration as a potentially quick process. The possibility of a win-win outcome is similarly associated with mediation. This suggests that some of the major advantages of negotiation cm find expression in other techniques and are not, of themselves, reasons to use negotiation as a first step toward a settlement. Least cost was not strongly linked to any other DRTs, and, as Ury et al. (1989) stated, cost is a particularly compeliing reason to consider the use of negotiation.
Although mediation was not described by respondents as low in cost, it has distinct advantages that relate to its use. A mediator can assist parties to communicate
1O3 and keep efforts focused. As de Loë and Kreutzwiser (1998) stated, workshop participants "stressed the importance of communication" when considering tools for solving groundwater disputes. Ah, this technique appears to help neutralize power dispari ties wi thin a group and, thus, enhances equality between parties. Overall, many of the benefits respondents ascribe to mediation stem fiom the mediatofs role as a facilitator to the parties in a dispute.
Arbitration involves a third party to decide the settlement (binding or non- binding) based on cases presented. Respondent reasons for this selection related to the greater degree of assurance that parties follow through with a settlement. Also, arbitration, involving significant third party control of the dispute resolution process, can ensure quick settlements through edorceable time limitations. Furthemore, the high degree of third party control that arbitration affords can result in increasing the focus on factual information, and decrease the ernphasis on sensitive areas such as personality differences. A principal drawback of this technique is that win-lose outcomes can oflen result, especially when settlements are binding. Aiso, according to respondent background information, respondents appeared to have the least experience with arbitration (see Section 3.5.5).
Litigation is associated with win-lose outcomes. However, it ensures the follow through of settlements. Also, respondents tend to view litigation as the preferred forum for powerfil parties since this technique is expensive, and thus can favor moneyed interests. Respondents, through their DRT selections and comments, saw litigation as a
"last ditch" effort to reach a settlement. 5.2.3 Respondent Selections for Second Choice DRTs
in the second round questionnaire, respondents were asked to select a second
DRT for each dispute factor statement (see Table 5.3). Overall, the data fiom this selection exercise indicated that arbitration was slightly favoured to mediation as a second choice DRT. This points to the preference for more fomal DRTs should less
forma1 techniques prove unsuccessfiil in resolving a dispute. Specifically, when situational and capability dispute factors are important, arbitration appears appropnate as a "second best" technique to use. However, mediation received significant support, and thus its use as a second choice DRT should not be discounted. Litigation had moderate support as a second choice DRT when negative impacts on water resources and/or water users are hi&. This appears to be a situation where precedents and law may be main considerations, and litigation should be used to settle disputes involving these factors. Negotiation received low support (< 40%) as a second choice DRT. This is not surprising since preferences for second choice DRTs favoured formal techniques.
5.3 A SYSTEM OF DISPUTE RESOLUTION TECHNIQUES
Dispute system design literature recognizes that parties will often utilize a number of approaches to reach settlements. The most commoniy cited sequence of
DRTs begins with negotiation, as an initial step, followed by mediation, arbitration, and, finally, litigation as a last approach to reaching an agreement (Ury et al., 1989; Arnold aiid Carnivale, 1992; Constantin0 and Merchant, 1996). A breakdown or failure of a
DRT is oflen cited as a sufficient reason for progression to the next DRT (Sander and
Goldberg, 1994). However, the literature fails to document conditions for changing Table 53 Linking Second Choice DRT Selections with Dispute Factors
Dispute Factor Statements (worst case)
Some parties want to have future business andor social interaction. Data on existing water uses relevant in a dispute are unavailable. A temporary water supply is unavaiiable to affected water users in a dispute. Some people want to maintain privacy during the dispute Moderate resolution process. (240%-49.9%) rn Some parties are unwilling to face an unfavourable outcome. Some parties have limited capacity to implement an agreement. Some parties have had negative experiences with negotiation in the past. 8 Communication between parties in a dispute has broken Strong down. (250%) Personality clashes occur among people involved in the dispute. Some parties have limited negotiation skills. rn Some people express prejiidices (e-g., ethnic, religious. social) in a dispute situation. rn Some parties in a dispute have had negative experiences with mediation in the past. ** The issues in a dispute are unclear. Some parties have limited ability to understand and use technical and other specialized information. Parties that have an established long-term water use argue to maintain that use. Some parties in a dispute have had negative experiences with mediation in the past. ** Moderate Some parties have limited capacity to implement an (240%-49.9%) agreement. The disputed activity has highly negative impacts on water resources. There are significant impacts of the disputed activity on water users.
** Both arbitration and litigation chosen for this factor. DRTs prior to a breakdown or failwe of a DRT. A significant change in dispute conditions may highlight the need to consider the use of alternate DRTs before a complete failure is realized.
This study proposes a system, rather than a sequence, of DRTs. The linear nature of a DRT sequence appears inflexible, with little capability to allow for de-escalation initiatives among the parties. A systems approach allows a dynamic and flexible combination of techniques that can bener meet stakeholder dernands. There fore, a system of DRTs is proposed in conjunction with conditions (related to dispute factors) for selecting alternate approaches should a technique prove inadequate. The inclusion of conditions for changing techniques will help disputants recognize the need for alternative DRTs before the consequences of failwe materialize.
The second round questionnaire was structured to compile data on first and second DRT preferences of respondents under the consideration of a set of dispute factors (see Figure 5.1). Analysis of the link between first and second choices for DRTs reveals that mediation is overwhelmingly preferred as a second choice when negotiation was selected £kt(N-M). When mediation was selected as a first choice DRT,arbitration was most strongly preferred as the next best technique. Also, litigation received some support as a second choice. This indicates a preference for the use of formal DRTs when more informal techniques either fail or are inappropriate. Interestingly, negotiation had significant support when mediation was initially selected indicating that under some circurnstances there is a preference for maintaining an informal environment for reaching a settlement. This apparent contradiction illustrates what Ury etd. (1 989) calls a "loop-back" mechanism, in which the disputants have an opportunity to use less formal
DRTs after using more ionnal DRTs.
N-M N-A N-L N-O M-N M-A M-L M-O Negotiation as a First Choice Mediation as a Fimt Choice
X-axis Notation N = Negotiation: M = Mediation: A = Arbitration: L = Litigation: O = Other The linkage between DRTs indicates the number of times a first DRT selection (represented by the first letter) was followed by the selection of a particular second choice DRT (represented by the second letter). For example, the letter pair N-M indicates the number of times negotiation as a fust choice DRT was followed by the selection of mediation as a second choice DRT
Figure 5.1 :Number of Secortd Choice DRT Selecfionsfor Nego tiation and Mediation.
This loop-back mechanism also existed when mediation was chosen as the second best DRT in cases where arbitration was chosen initially by the respondents (see
A-M in Figure 5.2). When arbitration was selected as a first choice DRT, litigation was the technique most preierred as a second choice. Litigation received low support overall as a first choice DRT. However, when it was selected first, arbitration was seen as the A-N A-M A-L A-O L-N L-M L-A 1-0 Arbitration as r Fi- Choice Litigation ri a Fint Choice Figure 5.2: Nurnber of Second Choice DRT Selecrionsfor Arbirration and Lirigation x Axis Notation (see Figure 5.1) N = Negotiation: M = Mediation: A = Arbitration: L = Litigation: O = Other next most viable technique. This loop-back mechanism is used by the courts especially when Iaws or precedents are not issues (Dukes, 1996).
Overall, three themes are evident fiom the analysis of first and second DRT choices. First, there is strong preference for a single second best DRT for each first choice made by respondents. Second, there is a strong preference for more forma1 DRTs if less formal techniques fail to resolve a dispute. Third, there is some support for selecting less formal DRTs when more formal techniques fail or are unavailable. This is re ferred to as a loop-back mechanism.
5.4 PROPOSED DISPUTE MANAGEMENT SYSTEM
From the first and second choice results, and with consideration of overall support for DRTs, it is possible to develop a system of DRTs, which, according to respondent group preferences, is appropriate for local water resource disputes in
1O9 Ontario.-A system of dispute resolution techniques outlines the relatiomhip between
each tool. The proposed system of DRTs (see Figure 5.3) provides a structure in which
goals and interests of
parties can be Negotiation Vediation effectively met, k ----cc according to
respondent group
preferences. The ~iti~ation Arbitration Legend
proposed dispute
management system ------+ Loopbac k Mechanism differs somewhat fiom Figure 5.3 System of DRTs
the most commonly cited sequence of DRTs in the literature. As stated earlier, this
sequence begins with negotiation followed by mediation, arbitration and frnally
Iitigation (Ury et al., 1989; Arnold and Carnivale, 1992; Constantin0 and Merchant,
1996). nie results of this study support the same sequence of DRTs. However, the
research does not support the use of negotiation as a ktor initial DRT in al1 dispute
situations. This research suggests mediation as an appropriate beginning, depending on the dispute characteristics dominant in a dispute. Additionally, this study brings to the
fore the concept of looping back.
In this study, loop-back mechanisms had some support when respondents selected DRTs that were less fonnal than their first choice. Ah, the use of loop-back mechanisms in dispute systems has support in the literature. Loopback strategies are considered essential to dispute resolution systems because they provide the parties with an opportunity to utilize more forma1 (nghts-based) DRTs at anytime without relinquishing the opporhuiity to move back to less forma1 DRTs. For example, by moving fiom mediation to nonbinding-arbitration, stakeholders cm obtain a ruling on perceived rights to water, without the use of the courts, and can then proceed toward an agreement by looping back to mediation. Non-binding arbitration is proposed since binding decisions can ofien result in a win-lose outcome that can jeopardize the implementation of the settlement. Also, allowing parties in a mediation to obtain a ruling in a non-binding arbitration, and then to return to mediation to reach a settlement, increases flexibility in the system. The same loop-back mechanism may be used behveen negotiation and mediation. For example, if communication breaks down in negotiations, then a mediator may be instrumental in opening up discussions to an extent that parties are able to proceed unassisted toward a negotiated agreement. Loop-back mechanisms may also be used in cases where litigation is selected. Court-sanctioned arbitration has been used in the past, and appears to be a viable way to resolve disputes efficiently without taking up court resources (Murray, 1990; Acland, 1995).
The dispute management system, as sumrnarized in Figure 5.4, integrates the most strongly supported dispute factors for each dispute resolution technique. This accomplishes two related tasks: first, the conditions in which each DRT is best suited are summarized; and, second, the dispute factors help define the conditions for switching
DRTs. In other words, the model outlines what DRT is appropriate under a given set of conditions and when to consider changing DRTs. The model was structured to allow an initial review of the dispute factors Iisted under each dispute resolution technique. The dispute factors describe some of the conditions in which each DRT is best suited. The Media tion Tlicrc is disinisi ainong soiiic piiriics in a dispuic. Review These The issues in a dispuic arc Dispute Factors unclcar. When Sclecting Tticrc lravc bccn pai unrcsolvcd a DRT, disputcs bctwccn partis. Pcrsoniility clashes are occhng Choose the DRT among pcoplc. that Best Communication bctrvccn parties Matches Your in a disputc has brokcn âown, Situation Sompartics bave tiad negativc cxpaicnccs with ncgotiation in thc put.
Ii-œœœœ Option 1 dispute factors that most closely match a particular dispute situation may indicates an
appropriate DRT. Each DRT contains a different number of dispute factors. The number of dispute factors for each DRT roughiy represents the overall degree of support each
DRT received fiom the respondent group. For example, mediation was preferred for the greatest number of dispute factors, therefore, in the model, mediation contahs the greatest number of dispute factors. This refleçts the broder spectnun of conditions in which mediation appears to be appropnate.
The model outlines two options to help disputants switch DRTs once it is determined that an initial selection is either inappropriate or unavailable. The ktoption advocates the movement fiom less forma1 to more forma1 DRTs. This feature integrates the overwhelming respondent group preferences for the sequence of DRTs (negotiation, rnediation, arbitration and litigation) outlined in section 5.3. Therefore, when selecting a second DRT the model indicates a next possible DRT based on the initial selection. The second option integrates the loop-back mechanism previously discussed in section 5.4.
Figure 5.4 indicates some dispute factors to consider in evaluating the first option. This option outlines some conditions for moving fiom more forma1 DRTs to less forma1 ones
(Figure 5.4). This option, according to respondent group preferences, received far less support than the first option.
In sumrna., the dispute management system brings together DRTs and the context (dispute factors) in which each DRT is best suited. By matching dispute factors with the characteristics of an emerging or ongoing water dispute, an initial or altemate DRT may be identified. However, to effectively use the dispute management system several principles, as derived fiom the literature and the data, should be considered.
5.5 PRINCIPLES OF THE DISPUTE MANAGEMENT SYSTEM
As noted at the beginning of the chapter, the system involves the consideration of both the "macro" and "micro" aspects of managing disputes. Macro aspects of the design involve primarily an assessment of the organizational fiamework associated with water resource dispute resolution in Ontario (see Chapter Two). The micro aspects of the design involve the consideration of many variables that help detennine the when, what and the how of a system. A set of principles has been developed fiom the analysis of questionnaire data and the literature, which directly impact not only the development of a dispute resolution system, but also how the system should operate. In general, principles will help dispute management system administrators and users resolve water resource disputes. f Vit en To Use Dispute Resolution Techniques
Princip le 1: Contintcally assess the characteristics (conditions) of a dispute to
neternzine ifand when to nlove to an altemate DRTselection. Disputants should be
encouraged to review the dispute factors or conditions strongly linked to DRTs and
compare them with the characteristics of their dispute. This can help to determine
when a DRT is appropriate for water resource disputes. Also, a continua1 assessment
of a dispute cm uncover andlor highlight new relevant information that can affect
how a dispute unfolds. Whar Dispute Resolution Technique To Use
Principle 2: Match the dispute factors or characteristics of a dispute with the dispute
resolution technique. Aside £?om community and senior governent organizational
fit, the process should be agreeable for the parties that are învolved. The DRT
chosen should meet the interests of the particular dispute and the interests of the
disputants. The appropriate DRT will depend on such dispute factors as "past dispute
between parties", "difference in financial resources available to parties in a dispute"
and "time pressures on each party". Next, matching impediments to settlement
(worst case statements of dispute factors) with the attributes of particular DRTs (see
section 5.2.2) allows the selection of an appropriate DRT.
Principle 3 : Try to resolve disputes with fessformai dispute resolution techniques.
The respondents dearly preferred the use of less formal DRTs, such as rnediation
and negotiation, when resolving water disputes. The literature related to
organizational theory supports this hding and suggests that disputes should be
resolved with the least bureaucracy and formality possible (Hatch, 1997).
PrincipIe 4: Uriiize DRTs that are simple to use, and which resolve the dispute early
rvith the leas2 bureaucracy. The respondent group indicated a preference for informal
DRTs such as negotiation and mediation. These techniques maximize stakeholder
control of the process. In order for parties to choose infonnal techniques, they must
be easier to use, faster, and more effective than traditional dispute resolution
methods. Also, an infonnal technique minirnizes the involvement of bureaucratic
influences that are common in iitigated disputes. How To Use Dispute Resolution Management System
Princi ple 5 : Make sure that disputants have the necessary knowledge and skiii to
choose and use the dispute resolution techniques. This principle stems fiom
suggestions and comments about capability dispute factors. As stated in Chapter
Four, many respondents agreed that capability dispute factors, such as the ski11 of
parties in using negotiation and mediation, parties' ability to understand technical
information, and willingness of parties to risk unfavorable outcomes, are important
but can be handled outside the DRT selection process. The DRT chosen should
allow for the education and skill-enhancing opportunities that appear nccessaxy for
effective dispute resolution. This can result with settlements to which al1 parties can
agree.
Principle 6: Wherever possible allow disputants ro main maximum control over the
cltoice of the DR T and the selection of a neutral third party. The literature indicates
that disputants are likely to be more resistant to a dispute resolution process if they
are not involved in seiecting it, and even more resistant if they have little voice in
determining the selection of the neutral third party (Society of Professionals in
Dispute Resolution, 1995). The respondent group, in its selection of DRTs, favored
the maximization of control for disputants, and reasons for DRT selections often
referred to control over the process as a reason for technique selection.
5.5 SUMMARY
The data gathered in this research were substantial and provided the basis for developing a dispute management system for water resource disputes in Ontario. The first round of the questionnaire allowed for the investigation of respondent expenences with dispute factors and the request for suggested dispute factors fiom the respondents.
The second round of the questionnaire was focussed on measuring the importance of each dispute factor and determinhg the respondent preferences for DRTs for each dispute factor statement. From these data it was possible to develop the dispute management system.
The dispute management system is structured to be flexible to disputant needs; however, unlike dispute systems describeci in the literature, this design proposes the use of mediation rather than negotiation as an appropriate first DRT selection in many dispute situations. As stated earlier, respondent preferences support the use of mediation over negotiation for many dispute factors. The use of the dispute management system is enhanced by the inclusion of conditions, as derived fiom dispute factors, for changing
DRTs. This allows the dispute system to act both as a dispute assessrnent tool and as an aid to effective water resource dispute resolution. More specifically, it can help those facing water resource disputes to diagnose the dispute and select an appropriate dispute resolution techique(s). Further, when this dispute management system, which can actively involves stakeholders through openness and participation, is combined with the recommended principles, the likelihood of durable, effective and equitable settlements may be increased. CHAPTER SIX
CONCLUSIONS
6.1 INTRODUCTION
The final chapter of this thesis is divided into four sections. The three research objectives (see Section 1.2) are addressed individually. This are followed by concluding rernarks on research opportunities.
6.2 RESEARCH OBJECTIVE ONE
The fmt objective of this research was to develop a preiiminary set of dispute factors that described the context in which water disputes exist. Although the effects of dispute factors, such as financial resources available to disputing parties and the number of parties, are well documented in the literature, they are predominantly described in tenns of dispute outcornes. However, dispute factors are also relevant characteristics of procedural selection or choice in dispute situations Furthemore, the literature revealed little evidence of an attempt to organize dispute factors either to research dispute outcornes or procedural choice. As a result, the Dispute Factor Classification Schente
(see Section 2.4.2) was developed and represents a theoretical contribution of this research. The classification scheme summarizes and organizes contextual characteristics that affect dispute procedural choices. It was used to organize the data gathering phase
(see Appendix A and B), some aspects of the analysis, and the discussion of findings in this thesis (Chapter Four).
For research purposes, the Dispute Factor Classr/ication Scheme has a number of merits. First, the classification scheme provides opportunities to evaluate specific water resource variables within the context of other influences in dispute situations. Similarly,
118 the study of dispute factors hmother dispute factor categories can be isolated and
investigated to determine, for example, power relationships, historical influences on disputes and situation-specific infiuences. Seconci, the classification scheme provides a
means of evaluating a wide spectnim of resource dispute situations. The classification
scheme, while structured for water disputes, can be modified to substitute dispute factors
fiom other resource types. This can be accomplished by replacing water resource dispute factors with dispute façtors relating to forestry, mining, and wildlife, to name a few.
According to Thibauit et al. (1 974), Kelrnan (1 984)- and Constantho and
Merchant (1 996)- the success of an agreement is, in part, associated with determining the satisfaction people have with the process, relationships and the outcome. In other words, agreements that have not successfùlly addressed significant influences or dispute factors, such as negative impacts on the water resource and maintainhg trust, may be short lived. Therefore, the degree to which problematic dispute factors have been resolved can be an indicator of agreement sustainability. The Dispuie Factor Cfassz~cafionScheme identifies many dispute factors that can be used for assessing agreements and the success of dispute resolution processes.
6-3RESEARCH OBJECTIVE TWO
The second objective of this research was to evaluate dispute factors and develop a dispute management system. As discussed in Chapter Three, the evaluation method used was a two round iterative questionnaire which was successfully used to answer the second half of this objective -- to develop a dispute management system.
The two round questionnaire was structured to involve a broad range of respondents, utilizing an exploratory phase (round one) and an importance testing and DRT selection phase (round two). The questionnaire approach was cost efficient compared to other research methods, notably workshops and interviews. Also, it dlowed ample time for respondents to think about each question in context of their past experiences. Furthemore, this approach provided confidentiality, which allowed respondents to express ideas and issues without adverse reaction from other participants.
In other words, those respondents that are uncornfortable expressing ideas and opinions in fiont of others were allowed anonymity in this process.
The shortcornings of this approach were related to the design of the questionnaires. The second round questionnaire was theconsuming to complete for respondents. This had two possible effects. First, the questionnaire length may have had an effect on the response rate, as indicated in Chapter Three. Specifically, the tow response rate was, in part, due to the 1-2.5 hours needed to complete the second round.
However, the data gathered were sufficient to compile a sizable and nch database for purposes of analysis. Another problem associated with the swey length was that a small number of questionnaires exhibited a drop off of question completion toward the later stages. While this happened to a small minority of questionnaires, the questions residing at the back of the questionnaire (water resource dispute factors) may not have received the sarne level of attention as earlier questions.
Another àraw back of the questionnaire design was the repetitive nature of the questions. Each of 63 questions, in the second round, was structured in a similar fashion
(see Appendix A and B). This possibly resulted in a tiresorne and repetitive exercise for the respondents to cornpiete. A problem associated with using dispute factors and worst-case expressions revolves amund the problem regarding context. The questionnaire asked respondents to think about and respond to individuai dispute factors. However, as expressed by a few respondents, dispute factors rarely, if at dl, occur in isolation fiom other factors. To consider them individually appears to create unrealistic conditions for the selection of
DRTs. A possible alternative route to realizing the objectives of this research could be to create a set of dispute scenarios with two or three dispute factors playing a role. This would allow each dispute factor to be expressed within two or three different contexts throughout a questionnaire. However, one of the main aspects of presenting each dispute factor separately was to have the respondents rely exclusively on their own experiences.
In spite of the shortcomings, the results obtained with this approach were satisfactory. The strengths of the two round iterative questionnaire outweigh the drawbacks, and it is an effective, inexpensive way to test attitudes, gather opinions, and expIore issues.
The second part of objective two was to develop a dispute management system for resolving water resource disputes in Ontario. Through research using the Dispute
Factor Classrfication Scheme. a dispute management system was developed (see Section
5.4). This represents both a theoreticai and practical contribution of the research. A DRT
Selectiort Model was developed that surnrnarizes and identifies dispute factors important in the selection of particular DRTs. in a practical sense, the model can help those facing a water dispute assess the character of a dispute and link the dispute characteristics to a possible DRT. Also, the model can be introduced in ongoing dispute resolution efforts to help disputants assess the possible use of altemate DRTs. In other words, the model provides a way of tracking and evaluating dispute situations through assessing dispute
factors that either become problematic or are successhrlly addressed. Therefore, the
model cm be used when selecting a ktchoice DRT and as an evaluative tool with
ongoing dispute situations.
The dispute management system, as represented by the DRT selection model, has some shortcornings. The model appears to be sensitive to the scale of dispute situations- Large scale disputes with many parties and issues may contain enough worst- case dispute factors to compromise the usability of the dispute management system. in other words, the volume of problematic dispute factors can diminish the ability of the rnodel to reliably indicate an appropriate DRT. This problem may be solved by expanding the number of dispute factor statements to include expressions of dispute
factors beyond the worst-cases used for this study.
6.3 RESEARCH OBJECTIVE THREE
The third objective of this research was to provide recommendations for using the dispute management system. Six principles of dispute management system use were developed (see Section 5.4). The pnnciples outline the what, when and how of the dispute management system. The principles provide fùrther clarification that people require to analyze a dispute as a new and unique phenornena and fashion an approach that will fit the conditions, the people that are involved, and the issues they are facing.
6.4 FUTURE RESEAItCA OPPORTUNITIES
Several opportunities exist regarding the investigation of conflict management for water disputes. This research is lirnited to disputes in which al1 parties recognise the advantages of CO-operativeDRTs. Therefore, research is needed to investigate the motivations of parties to take part in CO-operativemeasures to resolve water disputes. in other words, what motivates parties to seek CO-operativesettlements rather than using other techniques, such as courts or separate action?
The conflict management literature lacks information regarding process evaluation for resource disputes. While outcomes are adequately docurnented, procedural analysis of successfu1 and failed dispute resolution efforts is lacking, especially in resource management. Therefore, research is needed to assess dispute resolution techniques and dispute resolution systems to assess efficiency, effectiveness and satisfaction in resource disputes.
The dispute management system and the Dispute Factor ClassrJication Scheme can be utilized for Merresearch. Opportunity exists to utilize the classification scheme and the dispute management system to analyze water resource dispute situations.
Investigation of dispute factors in both successful and failed dispute resolution cases would provide avenues to refine and improve the DRT selection model. Also, classification scheme can be adapted to investigate dispute resolution efforts in other resource types, such as forestry and wildlife resources.
Overall, people must determine dispute resolution strategies that best serve competing interests. An array of problem solving techniques exists to help people achieve settlements. With some assistance people within communities and organizations can perform many of these techniques. The techniques include analyzing disputes, finding needed data, selecting DRTs, and working with others to reach agreements. This research contributes some understanding of water resource disputes and how they can be resolved. REFERENCES CITED
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First Round Cover Letter
July 7, 1998
Hello, my name is David Van Veen and 1 am a graduate student at the University of Guelph. I am undertaking a research project under the supervision of Prof. Reid Kreutzwiser. This study, which is supporteci by the Ontario Ministry of Agriculture, Food and Rural Affairs, airns to gain an understanding of local water resource conflicts and to develop tools that can help disputants to select appropriate dispute resolution techniques. We are writing to ask for your participation in this study. Your role would be to share your opinions and insights on factors of local resource disputes. If you are interested in participating, we have attached a statement giving more details about the study, a questionnaire containhg characteristics of local conflict situations and two business-reply envelopes. Whether or not you participate in this study, we would appreciate if you could take a moment to send us the narnes of other people (with current or past experience) whom you think would be willing to participate in this study. For this purpose, we have included a fom entitled "Narnes of Potential Survey Participants" and a small business-reply envelope that you can mail back to us. Please do not hesitate to cal1 Dr. Kreutzwiser or myself if you have any questions or concerns about the survey.
Thank-you for your attention and CO-operation.
Sincerely,
David Van Veen
David Van Veen Prof. Reid Kreutzwiser Department of Geography Department of Geography University of Guelph University of Guelph Guelph, Ontario, N1G 2W 1 Guelph, Ontario, N1G 2W 1 Office (5 19) 824-4 120 Ext. 2560 Office (5 19) 824.41 20 Ext.2 174 Home (519) 837-1385 CONFLICT RESOLUTION FOR LOCAL WATER RESOURCE DISPUTES IN ONTARIO
INTRODUCTION
Water resource disputes in Ontario can involve, among many issues, codicts over water quality and the allocation of water among competing uses. Water resource disputes have been handled through the court system or tribun& like the Ontario Municipal Board. However, these forums are costly, time consuming and adversarial. Recent developments in the use of alternative dispute management techniques have led to important and distinctiy diflerent outcornes than have been the experience with litigation. Practitioners of dispute resolution agree that tools or methods, such as negotiation, mediation and arbitration, sometixnes can resolve disputes in a timely, cost efficient fashion and maintah important working or social relationships. However, the successfiil use of various dispute resolution techniques depends on making an appropriate match between the technique and the particular factors of a dispute situation and the interests of people within a dispute.
THE PURPOSE OF THIS STUDY
This research project attempts to develop an approach that can help people, faced with a local water resource dispute, gain insight into the dispute and identim appropriate conflict resolution techniques. This approach attempts to help disputants progress toward an agreement by first identiwng key factors underlying the dispute. Once the factors have been identified, the strengths and weaknesses of dispute management tools, such as negotiation and litigation, may be matched effectively to the main factors of a dispute. The product of this research will be a guide to help people assess their local water resource dispute through the identification of key dispute factors, and to help them select an appropriate dispute resolution technique that best matches these factors.
The first step in this approach is to compile factors related to local dispute situations. Local dispute factors have been categonsed into four groupings: background factors; situational factors; capability factors; and, water resource factors. The second step is to assess these factors for water resource disputes in Ontario through surveying water resource managers, dispute resolution practitioners and people with experience in water resource disputes. The guide will incorporate the information you have provided in this survey and will help those involved in water resource disputes to understand the problems better and make more effective proposals within a dispute.
YOUR ROLE IN THE STUDY
If you agree to take part in this study by retuming this questionnaire, please do so by using the large post-paid envelope supplied. We would appreciate if you couId retwn the questionnaire by Tuesday, September 8,1998. AAer we have received and analysed al1 the retumed questionnaires, we wiil be sending you a second round questionnaire which, contains al1 the fktround factors and coniments of others taking part in the survey. This way we can obtain an assessrnent of the arguments and statements the respondent group made in the btround.
This process acts like a workshop without you having to leave your community or place of work. Please keep in mind that:
your participation in this study will be strictly confidentid; at no tirne will there be any indication of who said what; and, if you agree to participate, you are fiee to drop out at any tirne.
We would like to know whether or not you object to being listed as having participated in the study. Please indicate whether you do or do not in the appropnate place on the last page of the questionnaire. Agreeing to be Iisted does not reduce Our cornmitment to keeping your responses confidential.
DISTRIBUTION OF FINDINGS
If you are interested, we would be pleased to send you a summary of the research findings. Please indicate "YES" or "NOby circling your response on the last pageof this questionnaire.
INSTRUCTIONS FOR COMPLETING THIS QUESTIONNAIRE
The dispute factors compiled for this study are based on preliminary research. They include general factors of local disputes, as well as factors that motivate parties to prefer certain approaches to resolving disputes over others. As the factors presented here were obtained from a variety of disciplines and dispute types (e.g., labour, Iegal and environmental), we need to assess ifthey are relevant to focal water disputes. Below are steps we need you to follow to complete this questionnaire.
------1. For each of the four categories of dispute factors, review the factors and indicate by circling YES or NO whether ,in your experience, you have encountered these factors in local disputes. Then, if you have answered YES, indicate, by checking the appropriate space, the hdof dispute in which you encountered this factor. Our aim here simply is to inventory experiences with selected factors.
2. Your main contribution in this first round of the survey cornes next. For each category, suggest factors that we have missed and that you have either experienced or you think are important Please use the space on the back of each page-
3. Finally, we ask that you complete some background information about yourself. This information will be used only to prepare a general profile of our respondent F'UP SOME CONSIDERATIONS BEFORE YOU BEGIN
This study is mainly interested in local disputes. Local disputes are small in scale, oflen confked to one or a few communities. An example might be a water dispute about contaminated well water that invoives neighbours and perhaps some local and/or provincial governent representatives. The factors associated with local disputes have been organised into four categories: background factors; situational factors; capability factors; and, water resource factors. These categones are merely a way of organising the dispute factors and are not intended to be the focus of the research. However, feel free to suggest changes to this categonsation on the back of this sheet.
In the foiiowing pages the questionnaire will ask you if you have seen the various factors listed above in local disputes. If you answer YES to a factor you will be asked to indicate, by checking one of three possible categones, the type of dispute that this factor played a role. While water resource disputes are the focus of this research, it is important to include expenences respondents may have had in other local disputes since they may prove relevant to water disputes.
The first category is Land-use disputes which includes resource disputes with issues about mining, forestry and air pollution disputes as well as local land-use planning disputes. The second category is rvuter disputes which can include both surface and ground water issues. The third category captures any Other dispute type that is not related to other categones and this may include family or other persona1 disputes. For this last category we ask you to use key words to indicate what kind of dispute that this factor played a role.
If you have rny other concerns or questions feel free to contact us and thank-you again for taking part in this study. Background Factors
Background factors exist prior to the dispute. They help to determine how the dispute unfolds.
-- - - In your experience, have you If YES, in what kiad of dispute did seen these factors playing a role this factor play a role? in the way a local dispute (check al1 that apply) un folded? (circle appropriate answer) 1 - Laud-use dispute (e.g.,planning /resource) YES 1 Past disputes bstween - Water dispute parties. NO - Other (e.g.,family/personal disputes) (please sp=W
-- The prospect of fùture - Land-use dispute (e,g.,planning /resource) business and /or social YES - Water dispute interaction between - Other (e.g.,famil ylpersonal disputes) (please parties in a dispute. NO sp=iSl)
Attitude toward certain - Land-use dispute (e.g. ,planning /resource) conflict resolution YES - Water dispute techniques due to past - Other (e.g.,fmily/personal disputes) (please expenence with them. NO speciS.1
- Land-use dispute (e.g. ,planning/resource) - Water dispute - Other (e.g ., familylpersonal disputes) (please sp=iSl)
Extent to which parties - Land-use dispute (e.g., planning / resource) have communicated. YES - Water dispute - Other (e.g.,fmily/personal disputes) (please speciS.1
PIease make your suggestions regarding other background factors on the back of this page. SITUATIONAL FACTORS
Situational factors exist because of the dispute. In other words. these are factors that corne to exist only when the dispute occurs.
In your experience, have you If YES, in what kind of dispute did seen these factors playing a role this factor play a role? in the way a local dispute (check al1 that apply) unfolded? (circle appropriate answer) - hcreasing personal time - Land-use dispute (e.g.,planning kesource) pressures. In other words, YES - Water dispute the pressure on one or - Other (e.g.,famity/personal disputes) (ptease more parties to resolve the NO sp=ifl) dispute as quickly as possible. ------Land-use dispute (e.g.,planning /resource) YES - Water dispute The number of people - Other (e.g. ,farnily/personal disputes) (please involved in a lo&l dispute. sp-ifl) No I - Land-use dispute (e.g.,planning /resource) Involvement of parties who - Water dispute strongly believe in the - Other (e-g.,famil y/personal disputes) (please "rightness" of their position. NO speciQ)
- Land-use dispute (e.g.,planninp/resource) - Water dispute 1 Parties' desires to YES - Other (e-g.,family/personal disputes) (please maintain their privacy. I sp=iQ) - Land-use dispute (e.g., planning / resource) Personality clashes between YES - Water dispute people in the dispute. - Other (e.g.,family/personal disputes) (please sp=iQ)
Please make your suggestions regarding other situational factors on the back of this page. - In your experience, have you If YES, in what kind of dispute did seen these factors playiiig a role this factor play a role? in the way a local dispute (check a11 tbat apply) un folded? (circle appropriate answer)
YES The tactics parties use - Land-use dispute (e.g.,planning/resource) in a local dispute. - Water dispute NO - Other (e. g.,family/personal disputes) (please *=if3
The degree to which the YES - Land-use dispute (e.g.,planning /resource) main issues in a dispute - Water dispute can be resolved. NO - Other (e.g.,family/personal disputes) (please sp=iIjf)
The extent to which the YES - Land-use dispute (e.g.,planning /resource) parties agree on the - Water dispute definition of the issues. NO - Other (e.g.,family/personal disputes) (please sp=iSl)
Number of issues in YES - Land-use dispute (e.g.,planning /resowce) the dispute. - Water dispute NO - Other (e.g.,family/personal disputes) (please SD&)
YES - Land-use dispute (e.g., planning / resource) Presence of imposed - Water dispute deadlines. NO - Other (e.g.,family/personal disputes) (please sp=ifY)
Please rnake your suggestions ngarding other situational factors on the back of this page. 1 CAPABILITY FACTORS 1 Capabilityfactors are related to the abifiîy of parties to participate effectively in the dispute resolution process.
In your experience, have you If YES, in what kind of dispute did seen these factors playing a role this factor play a role? in the way a local dispute (check dl that apply) unfolded? (circle appropriate answer) Differences in financial YES - Land-use dispute (e.g.,plannïng /resource) resources available - Water dispute to the parties in a dispute. - Other (e.g.,family/personal disputes) (please NO sp=ifY)
- Land-use dispute (e.g.,planning /resource) The potential of parties to YES - Water dispute learn unfarniliar conflict - Other (e.g.,farnily/personal disputes) (please resolution techniques. NO sp=iSl)
------Land-use dispute (e.g.,planning /resource) Parties' abilities to use and YES - Water dispute understand technical and - Other (e.g.,family/personaI disputes) (please other fonns of specialized sp=ifl) information. NO ------Level of ski11 in using - Land-use dispute (e.g.,plannindresource) dispute resolution YES - Water dispute techniques among - Other (e.g.,family/personal disputes) (please participants. NO speciSl)
- Land-use dispute (e.g., planning 1 resource) Parties' willingness to YES - Water dispute risk an unfavourable - Other (e.g.,family/personal disputes) (please outcorne. NO sp=ifY)
YES - Land-use dispute (e-g., planning / resource) The capacity of the parties - Water dispute to implement agreements NO - Other (e.g.,family/personal disputes) (please sp=W
Please make your suggestions regarding other capability factors on the back of this page. 140 In the previous three categories we have asked you to comment on general factors of local disputes. We would now iike you to tum your attention to the issue of water resources and the disputes that sornetimes arise over their use and management. Below are dispute factors that relate to water resources. Please answer as before, and if you have suggestions about factors that we have missed, please include them on the back of this sheet. WATER RESOURCE FACTORS Characteristics of water resource supply and demand that can affect the dispute resolution process.
In your experience, have you Please use a few key words to seen these factors playing a role describe the kind of dispute. in the way a local dispute unfolded? (circle appropriate answer) I YES The impacts of the disputed water use.For example, NO
Perceived consequences YES of disputed activity. For example, fear of a water NO shortage. Resource availability. In YES other words, the amount of supply of the water in the NO dis~ute. AvailabiIity of temporary YES 1 or permanent water supplies.
- The type of water use. YES (e.g., domestic V.S. commercial). NO
Uncertainty over scientific I and technical questions.
Please make your suggestions regarding other water resource factors on the back of tbis page. 141 First Round Background Questionnaire
VERIF'ICATION OF NAME AND ADDRESS
Please complete to indicate that there are no mors in our information:
Narne: Organisation: Address: City: Postal Code: Phone: E-mail: Fax:
RESPONDENT BACKGROUND
It is important to know something about the background of the participants. We will use this background information oniy to develop an aggregate picture of the charac teristics of the group. Your responses will remain strictiy confïdential.
1. Have you been involved in a local dispute of any kind in the last 10 years? YES - NO - If you answered YES to the above question, please answer (a, b, and c)
a. in what ways were you involved in the dispute? (check al1 that apply)
- As a third party helping to resolve the dispute - As a disputant with an interest in the outcome - In another way? (please speciQ below)
b. Of the local dispute(s) you have been involved in, were any of those water resource disputes?
c. Were any of these conflict resolution techniques used in the dispute(s) in which you were involved? (please check as many as apply) -Negotiation -Mediation -Arbitration -Litigation -mer tool or approach used to resolve the dispute? (please specie) 2. What is your educational background? (check the highest level you have achieved)
- High School - College Diploma - Bachelor's Degree - Graduate Degree - Other (please specie)
3. What is your professional background ancilor field of empioyrnent? Note: If you need more room for your answer please use the back of this sheet.
4. How many years of work or other expenence(e.g., volunteer) do you have in the fo 1lowing areas?
Area Years Kind of Experience
Water management
Conflict resolution
Land-use planning
Agriculture
Other (please speciQ)
PERMISSION TO LIST YOU AS HAVING PARTICIPATED IN THE SURVEY
May we list you as a participant in this study? YES - NO - Note: when you answer YES this does not rnean that any of your statements will be identified as belonging to you. Al1 respondents are anonyrnous in the survey.
RESEARCH FINDINGS
Would you like a copy of the findings? YES - NO - APPENDIX B
SECOND ROUND QUESTIONNAIRE Second Round Cover Letter
November 30,1998
HelIo, my name is David Van Veen and 1 am a graduate student at the University of Guelph. I am undertaking a research project under the supervision of Prof. Reid Kreutzwiser. This study, which is supported by the Ontario Ministry of Agriculture, Food and Rural Affairs, aims to gain an understanding of local water resource conflicts, and to develop ways to help disputants select appropriate dispute resolution techniques. Participants in this study should have some experience with local disputes that involve some aspect of water resource use. This experience could corne fiom involvernent in agriculture, land-use planning, drainage, fisheries, or water management. I am writing to ask for your participation in this study. Your role would be to share your opinions, insights and experience about local water resource disputes. If you are interested in participating, 1 have attached information giving more details about the study, a copy of the questionnaire, and a business-reply envelope. If you are unable to participate in this study, 1 would appreciate if you could forward this package to someone whom you think would be willing to participate in this study. Please do not hesitate to cal1 me or Dr. Kreutzwiser if you have any questions or concerns about the study.
Thdyou for your attention and CO-operation.
Sincerely,
David Van Veen Department of Geography University of Guelph Guelph, Ontario, N1G 2W 1 Office (5 19) 824-4 120 Ext. 8 1 13 Home (519) 837-1385 \ CONnICT RESOLUTION FOR LOCAL WATER RESOURCE 1 DISPUTES IN ONTARIO
INTRODUCTION
Water resource disputes in Ontario can involve, arnong many issues, conflicts over water quality and the allocation of water among competing uses. Water resource disputes have been handled through the court system or tribun& like the Ontario Municipal Board. However, these fonuns are costly, tirne consuming and adversarial. Recent developments in the use of alternative dispute management techniques have led to important and distinctly different outcornes than have been the experience with litigation, Practitioners of dispute resolution agree that tools or methods, such as negotiation, mediation and arbitration, sometimes can resolve disputes in a timely, cost efficient fashion and maintain important working or social relationships. However, the successfiil use of various dispute resolution techniques depends on making an appropnate match between a dispute resolution technique, the particular characteristics of a dispute situation, and the interests of people within a dispute.
THE PURPOSE OF THIS STUDY
The purpose of this study is to help disputants' make progress toward an agreement by first identifjing key factors underIying the dispute. Once the factors have been identified, the strengths and weaknesses of dispute management tools, such as negotiation and litigation, may be matched effectively to the main characteristics of a dispute, The product of this research will be a guide to help people assess their local water resource dispute through the identification of key dispute factors, and to help them select an appropriate dispute resolution technique that best matches these factors.
The first step in this approach was to compile factors of local dispute situations. This was accomplished through research and a survey conducted with water resource managers, dispute resolution practitioners and people with expenence in water resource disputes. The survey asked participants to assess their expenence with local disputes, to indicate if the researched factors existed in local dispute situations. Also, participants were asked to suggest factors that were not mentioned in the survey. Local dispute factors have been categorised into four groupings: background factors; situational factors; capability factors; and, water resource factors. The results of this first survey were incorporated into this questionnaire.
This survey is designed to find out how important the various factors are, and which dispute resolution techniques are appropriate for different kinds of water resource disputes in Ontario. This survey has been mailed to those who participated in the first survey, and to others who have been involved in local water resource disputes. A guide, developed from the results of this study, wilt help those involved in water resoufce disputes to understand the conflict and to understand their options.
WHO SHOULD PARTICIPATE IN TslS STUDY? For this study, 1 am contacting in people who may have encountered, and have attempted to resolve, local water and/or water related land-use disputes. Your experiences with these disputes and how they am resolved are important in filling out this survey. However, if other kinds of disputes appear relevant to you, please feel free to include those experiences.
YOUR PARTICIPTION IN THE STUDY
If you agree to take part in this study by retuming this questionnaire, please do so by using the large post-paid envelope supplied. We would appreciate if you could retum the questionnaire by
Please keep in mind that your participation in this study will be strictly confidential, which means that at no time will anything you write be associated with you. However, we would like to know whether or not you object to being listed as having participated in the study. Please indicate whether you do or do not in the appropriate place on the Iast page of the questionnaire. Agreeing to be listed does not reduce Our commitment to keeping your responses confidential.
DISTRIBUTION OF FINDINGS
I would be pleased to send you a summary of the research findings. Please indicate TES" or 'WOby circling your response on the Iast page of this questionnaire.
INSTRUCTIONS FOR COMPLETING TEIIS QUESTIONNAIRE
The questionnaire is organised in two parts. It is important that you complete the survey by starting with Part I, and then completing Part II. While the questionnaire appears lengthy, 1 have structured it to maximise the use of cbeck marks and short written explanations.
PART 1: FACTORS IN LOCAL DISPUTES This first section of the survey includes factors of local water and water related land-use disputes. Your role in this section is to indicate your agreement or disagreement with different factors of local disputes, based on your experiences. The factors have been organised into four broad groupings (background, situational, capability and water resource factors). It is recognised that factors in these groups can be placed in other categones. However, these groupings are not the focus of this swvey.
The following is an example of the statements you will be called on to answer in Part 1. The statement section contains various statements about factors that exist in local disputes. Next, 1 ask you to rate the statements using your experience. Please check only one box. Finally, it is extremely important to give the reason for your rating. Without the rewon, the rathg cannot be used when anhysing the resulk.
TUCT OF A STATEMENT
Please check only one.
Qstrongly Agee ~eak1~Agree Weakly Disagrce Q Strongly Disagree
Reason for your answer
It is very important that you includ. the rorion for your rnswer.
PART II: WATER RESOURCES AND DISPUTE RESOLUTION
This section of the survey is set up similar to Part 1. Your role will be to select a dispute resolution technique that, in your opinion, will best handle each factor. In other words, think of each factor as if it is dominant or very important in a local dispute and
I TEXT OF A STATEMENT in a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. 11 Q Negotiation Mediation 0 Other (please specim) ' Please describe briefly this Il Arbitrarion Litigation disputa remlution technique ' Reason for your answer
It is very important thrt you indude the rertari for your answer.
If your fit choice is unsuccessfil, or for whatever reason cannot be use& what would be your "second best" choice? Pick only one. Q Negotiation Mediation m Other (please spece) Plerse describe briefly this II Arbitration P Litigation dispute remlution technique ' indicate the dispute resolution technique that, you beiieve, will best handle that factor. Next, there is a space to give the reason for your selection. The rewon for your answer is extremely important in this study. Without it 1 cannot use the results of your survey. Finally, please select a "second best" dispute resolution technique for this dispute factor.
As before, the statements are organiseci under four general headings. It is recognised that dispute factors do not exist separately in a dispute situation and that the selection of a dispute resolution technique involves the consideration of many related factors.
A Summary of Dispute Resolution Techniques
The four dispute resolution techniques (negotiation, mediation, arbitration and Iitigation) used in this part of the questionnaire may be familiar to many of the participants of this study. For those participants unfamiliar with any of the dispute resolution techniques a short definition of each is included below. I recognise that these definitions are broad categories only and that there are many variations possible. Negotiation Negotiation is a direct exchange between two or more people with the intention of reaching an agreement or consensus. No third party is used in this process. Mediation Mediation is a voluntary, consensual process in which those involved in a dispute jointly explore and reconcile their differences with the assistance of a neutral third paty. The third party works with the parties to amve at solutions to the dispute. A third party does not have the authonty to impose a settlement. Arbitration Arbitration is a process in which a neutral third party (an arbitrator) renders a decision afier a hearing at which al1 parties have an opportunity to be heard. The decision rendered by the arbitrator can be binding, which means that al1 parties in the dispute have agreed, before the hearhg, to accept the decision. Conversely, the parties may only agree to consider the arbitrator's decision in the dispute. This is often referred to as non-binding arbitration. Litigation Litigation occurs in the court system, in which al1 parties in the dispute must accept the decision, rendered by a judge. BACKGROUND INFORMATION
This part of the sweycontains questions relating to your background. 1 will use this information ody to deveiop an aggregate picture of the characteristics of the group. Piease be assured that your responses will remain strictly confidential. If you bave any questions or concerns feel free to contact me. Thank you again for participating in this survey.
David Van Veen Department of Geography University of Guelph Guelph, Ontario, N1G 2W1 Office (5 19) 824-41 20 ext. 8 1 13 Home (519) 837-1385 E-mail: [email protected] PART 1 FACTORS IN LOCAL DISPUTES
For this part of the surveyslease consider each staternent and indicate, by checking one box, if you agree or disagree with the statement. It is important tbat you give a reason for your answer. . BACKGROUND FACTORS Background factors exists prior to a dispute. They help to determine how a dispute unfolds.
Past disputes between people within a dispute are an important factor when selecting a dispute resolution technique to resoive a dispute. Please check only one. Il p Strongly Agree O Weakly Agree P Weakly Disagree O Strongly Disagree
- -- Il Reason for your an,wer 1
------1.b The prospect of future business andor social interaction between parties II ?is important when choosing a dispute resolution technique. Please check only one. p Strongly Agree Weakly Agree Weakly Disagree u Strongly Disagree II - - Reason for your answer
- . ------People's attitudes towirds certain-dispute resolution techniques, due to past experiences, are important when selecting a dispute resolution technique. ' Please check only one. 1 O Strongly Agree Weakly Agree P Weakly Disagree Strongly Disagree J Reason for your answer Differences in people's basic values or principles are important in 1 determinhg which dispute resolution technique to use. II Please check only one. P Skongly Agree O Weakly Agee O Weakly Disagree Strongly Disagree Reason for your answer
When choosing a dispute resolution technique it is important to determine W the extent to which people have communicated. Piease check on~yii. O S@onglyAgee CL Weakly Agree P Weakly Disagree Strongly Disagree Reason for your answer
Mendeciding on a dispute resolution technique the degree of trust between people is an important consideration. Please check only one. P Strongly Ag= Weakly Agree Weakiy Disagree Strongly Disagrec Reason for your answer
Each party's best alternative to settling a water related dispute is important to consider before choosing a dispute resolution technique. Please check only one.
Reason for your answer The existence of establisbed long-term water uses is important whea selecting a dispute resolution technique.
- - Please check only one. I Strongly Agree O Weakiy Agree O Weakly Disagree # Strongly Disagree
Prejudices, such as ethnic, religious and social, are important factors to Il w consider when chwsing a dispute resolution technique. Please check only one. O Strongly Agree 0 Weakly Agree Weakly Disagree Strongly Disagree
The data on past water resource use are needed and important when selecting a dispute resolution technique.
Please check only one. p Strongly Agree Weakly Agree Weakly Disagree Strongly Disagree
------Reason for your answer SITUATIONAL FACTORS 1 Situational factors exrst because of the dispute. In other words, these are factors that corne to exrst only when the dispute occtrrs. Time pressure on each party in a dispute will influence the selection of a dispute resolution technique.
------Please check only one. Strongly Agree Weakly Agree Weakly Disagree O Strongly Disagree Reason for your answer
The number of parties in a dispute will influence the type of dispute resolution technique chosen. Please check only one. Q Strongly Agree P Weakly Agree u Weakly Disagree Strongly Disagrec
- - Reason for your answer
- The presenee of parties who maintain the Qrightness" of their position will influence the type of dispute resolution technique chosen. Please check only one. P Strongly Agree Weakly Agree Q Weakly Disagree O Strongly Disagree Reason for your answer Maintainhg privacy is an important factor when deciding on an appropriate dispute resolution technique. . . - . - -- Please check only one. Strongly Agree u Weakly Agree Weakiy Disagree Strongly Disagrec Reason for your answer
Personality clashes between parties plays a role in the selection of a dispute resolution technique.
Strongly Agree Weakly Agree Weakly Disagree P Strongly Disagree Reason for your answer
2.f Defining the issues relevant in a water related dispute is important before iS? selecting a dispute resolution technique. Please check only one. II Q Strongly Agree Weakly Agree Weakly Disagree 0 Strongly Disagrec Reason for your answer
2.g The number of issues in a dispute will affect the type of dispute resolution ti'technique chosen. Please check only one. Strongly Agree O Weakly Agree Weakly Disagree Strongly Disagree Reason for your answer 2.h The presence of an imposed deadline will affect which dispute resolution II [SJ? technique can be used. Please check only one. Strongly Agree O Weakiy Agree 0 WeaLly Disagree O Strongly Disagrec
II ~ - -- Reason for your answer
A cautious approach to protecting parties' interests will affect which W dispute resolution technique is used. Please check only one. Strongly Agree Weakly Agree 0 Weakly Disagree 0 Strongly Disagree Reason for yow answer CAPABILITY FACTORS
Capabifie factors are related fo the ability of parties to participate effectively in the dispute resolution process.
The differences in finaocid resources available to parties in a dispute will affect which dispute tesoiution technique is used.
Reason for your amer
- The potential of parties to learn unfamiliar dispute resolution technique(s) is a major consideration when deciding how to resolve a dispute. Please check only one. II P Strongly Agree P Weakly Agree Weakly Disagree Strongiy Disagree Reason for your answer
The abiiity of parties to understand technical and other specialized W information is an important factor in selecting a dispute resolution technique. Please check only one. # Strongly Agree Weakly Agree # Weakly Disagree P Strongly Disagree II Reason for your answer The skill each party bas in using dispute resolution techniques will affect which technique is selected Please check only one. Il 0 Strongly Agree 0 Weakly Agree O Weakly Disagree Strongly Disagrei Reason for your answer
The parties' willingness to risk an unfavourable ootcome is important when selecting a dispute resolution technique. Please check only one. Il p Strongly Agree Weakly Agree CL Weakly Disagree O Strongly Disagre Reason for your answer
-- The capacity to implement an agreement is essential when considering dispute resohtion techniques. Please check only one. p Strongly Agree Weakly Agree Weakly Disagree Strongly Disagrel
-- Reason for your answer 1 WATER RESOURCE FACTORS 1 Water resource factors are related to charactenstics of water supply and demand that can affect the dispute resolution process.
The degree of impact of the disputed water use is important to assess when choosing a dispute resolution technique. -- - Please check only one. 0 Strongly Agree # Weakly Agree Q Weakly Disagree Strongly Disagrec Reason for yow answer
The resource availability (e.g., amount of water supply) wiU influence which dispute resolution technique is selected.
I Please check only one. O Strongly Agree Weakly Agree 0 Weakly Disagree 0 Strongly Disagree
1 Reason for your answer
The availability of a temporary water supply will impact the selection of a Il lXei dispute resolution technique. 1 Please check only one. p Strongly Agree Weakly Agree Weakly Disagree Strongly Disagree1 II -. Reason for your answer
L The type of water use (e.g., domestic vs. commercial) will influence the selection of a dispute resolution technique. Please check only one. Il Q Strongly Agree 0 Weakïy Agree O Weakly Disagree Strongly Disagrec Reason for your answer
Uncertainty over scientific andfor technical questions will affect what dispute resolution technique is used. Please check only one. II Strongly Agree 0 Weakly Agree Weakly Disagree Strongly Disagree Reason for your answer
4.f The perceived consequences or impacts of a disputed activity will affect II li the choice of a dispute resolution technique. Please check only one. II p Strongly Agree Weakly Agree Weakly Disagree Strongly Disagree Reason for your answer PART II 1 1 WATER RESOURCES AND DISPUTE RESOLUTION \
For this part of the survey, please consider each statement and select a dispute resolution technique that would best fit the statement. Again, it is important that you give a reason for your answer. Finally, select an alternate or second dispute resolution technique if for some reason your htselection faiis to resolve the dispute or is unavailable. BACKGROUND FACTORS - 4 Tbere have been put unraolved disputes between parties.
In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation Other (Please specify) # Arbitration O Litigation C Reason for your answer
If your first choice is unsuccessfii1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) II Q Arbitration O Litigation
- - -- 11 Parties rant Reason for your answer If your first choice is unsuccessfû1,or for what ever reason cannot be used, what would II be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) II Q Arbitration P Litigation People's past experience with negotiation has been negative. ------In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation O Other (Please specify) Lb Arbitration Litigation Reason for your answer If your first c hoice is unsuccessful,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) Q Arbitration Litigation There are differences in parties' basic values or priaciples. - - - - In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation O Other (Please specify) Lb Arbitration O Litigation Reason for your answer If your first choice is unsuccessfd,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. P Negotiation O Mediation Other (Please specifjr) Lb Arbitration Q Litigation II 1 9Parties have communicated about the issues before a dispute has occurred. II In a dispute in which the above factor is very important, which dispute resolution II technique would you recommend? Pick only one. II O Negotiation Q Mediation O Other (Please specie) II P Arbitration O Litigation II Reason for your answer If your first choice is unsuccessfu1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) rArbiaation 162 There is distrust among parties in a dispute. In a dispute in which the above factor is very important, which dispute resclution technique would you recommend? Pick only one. P Negotiation O Mediation O Other (Please speci fy) 5 Arbitration Q Litigation Il Reason for your answer If your first choice is unsuccessfil,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation a Other (Please specie) Arbitration O Litigation Some parties' are not adversely affected by a failure to settle a water related dispute. In otber words, they aren't dependent upon settlement a as others. - - - In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. P Negotiation O Mediation Other (Please specify) Q Arbitration O Litigation Reason for your answer - - If your first choice is unsuccessful,or for what ever reason cannot be used, what would II be your "second best" choice? Pick only one. II P Negotiation Q Mediation O Other (Please specify) II 5 Arbitration O Litigation -- - Parties thnt have an eitablished long-term nater use argue to maint.% that use. II In a dispute in which the above factor is very important, which dispute resolution II technique would you recommend? Pick only one. II P Negotiation P Mediation O Other (Please specifi) II 5 Arbitration O Litigation Il Reason for your answer If your first choice is unsuccessful,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) Q Arbitration O Litigation 163 II 1 9 Data on existing water uses relevant in a dispute is unavaüable. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation a Other (Please specify) O Arbitration O Litigation 11 Reason for yow answer If your first choice is unsuccessfù1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation Other (Please speciQ) O Arbitration O Litigation ~9People express prejudices in a dispute situation * (e.g., ethnie, religious, social). In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation Ch Other (Please specify) O Arbitration O Litigation Reason for your answer If your first choice is unsuccessfiil,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. P NegotiationO Mediation Other (Please specify) P Arbitration P Litigation One or more parties in a dispute has had negative experiences with mediation in the past. In a dispute in which the above factor is very important, which dispute resolution technique wouid you recommend? Pick only one. P Negotiation O Mediation O Other (Please specify) Q Arbitration O Litigation Reason for your answer II - -- If your first choice is unsuccessfii1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. P Negotiation O Mediation O Other (Please specify) O Arbitration Q Litigation 164 SITUATIONAL FACTORS Some parties are under considerable time pressure to reoch an agreement t In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. P Negotiation O Mediation Q Other (Please specify) Q Arbitration Q Litigation II Reason for your answer If your first choice is unsuccessfu1,or for what ever reason cannot be used, what would II be your "second best" choice? Pick only one. P Negotiation O Mediation Other (Please specify) P Arbitration Q Litigation A large number of parties ore involved in a dispute. -- - Ln a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation Cb Mediation Other (Please specify) P Arbitration O Litigation II Reason for your answer If your first choice is unsuccessfÛ1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) Lb Arbitration Q Litieation Some parties are involved who strongly maintain the Wghtness" of their position. In a dispute in which the above factor is very important, which dispute resolution 1 technique would you recommend? Pick only one. O Negotiation O Mediation Other (Please specify) P Arbitration P Litigation --- -- II Reason for your answer If your first choice is unsuccessfÙl,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation Other (Please speciQ) O Arbitration O L=on b 1 ElSome people want to maintain privacy during the dispute resolution Il 1 process. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation Other (Please specim) O Arbitration O Litigation - -- II Reason for your answer If your first choice is unsÛccess~l,orfor what ever remn cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation Other (Please specify) O Arbitration P Litigation IB.5 Personality clashes occur among people involved in the dispute. II In a dispute in which the above factor is very important, which dispute resolution II technique would you recommend? Pick only one. O Negotiation O Mediation O Other (Please specify) II O Arbitration O Litigation Il Reason for your answer If your first choice is unsuccessfi1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation P Mediation O Other (Please speciS) 7- 166 The issues in a dispute are unclear. II In a dispute in which the above factor is very important, which dispute resolution II technique would you recommend? Pick only one. II O Negotiation O Mediation O Other (Please specify) Q Arbitration O Litigation i II Reason for your answer 11 If your first choice is unsuccessfb1,or for what ever reason cannot be used, what would 11 be your "second ben" choice? Pick only oie. II O Negotiation O Mediation O Other (Please specify) 1 P Arbitration O Litigation An externaMy imposed deadline on ail parties limits the time available to reach an agreement. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation O Other (Please specify) O Arbitration O Litigation Reason for your answer If your first choice is unsuccessfu1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. P Negotiation Ci Mediation O Other (Please specify) Q Arbitration Q Litigation A large number of issues needs to be discussed in the dispute. i - - - - In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation P Mediation O Other (Please specify) Q Arbitration O Litigation II Reason for your answer If your first choice is unsuccessfu1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. FL Negotiation O Mediation O Other (Please specifjr) 5 Arbitration Q Litigation - 167 Some parties act very cautioasly in order to protect their interes&. I in a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O NegotiationO Mediation Other (Please specify) Q Arbitration FL Litigation Il Reason for your answer If your first choice is unsuccessful,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation Other (Please specify) Q Arbitration P Litigation CAPABILITY FACTORS ------Financiai resources that crn be used for dispute resolution are limited for some parties, but not otbers. II In a dispute in which the above factor is very important, which dispute resolution II technique would you recommend? Pick only one. II O Negotiation O Mediation O Other (Please specify) II O Arbitration O Litigation II Reason for your answer If your first choice is unsuccessfûl,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) O Arbitration O Litigation - Soome parties-are unnilling or unible to barn to use unfamiliar dispute II - .- resoiution techniques In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation Other (Please specify) Fi Arbitration P Litigation II Reason for your answer If your first choice is unsuccessfûl,or for what ever reason cannot be used, what would II be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) O Arbitration O Litigation Some parties bave limited ability to understand and use technical and other speciaüsed information. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick omly one. O Negotiation O Mediation O Other (Please speci@) Cb Arbitration O Litigation Reason for your answer ------If your first choice is unsuccessfii1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) Cb Arbitration O Litigation In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation Other (Please specifi) Q Arbitration O Litigation Reason for your answer ------If your first choice is unsuccessfit1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) Q Arbitration # Litieation ?, Some parties are unwilling to risk an unfavourable outcome. In a dispute in which the above factor is very important, which dispute resolution technique would you recomrnend? Pick only one. O Negotiation Q Mediation O Other (Please specify) O Arbitration O Litigation - -. R Reason for your answer If your first choice is unsuccessfii1,or for what ever reason cannot be used, what would Il be your "second best" choice? Pick only one. II P Negotiation O Mediation Other (Please specify) II O Arbitration O Litigation 170 Some parties bave limited crrpacity to implement an agreement. in a dispute in which the above factor is very important, which dispute resolution technique woutd you recommend? Pick only one. O Negotiation O Mediation Other (Please speciQ) Ch Arbitration Litigation Reason for your answer If your first choice is unsuccessfiil,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation a Other (Please speciQ) Q Arbitration Q Litigation WATER RESOURCE FACTORS A disputed activity bas highly negative impacts on water resources. in a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation Q Mediation Other (Please specify) P Arbitration FL Litigation Reason for your answer If your first choice is unsuccessfiil,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation Other (Please specify) O Arbitration P Litigation The water resource is limited. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. Ch Negotiation O Mediation O Other (Please specify) Q Arbitration P Litigation Reason for your answer If your first choice is unsuccessful,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. P Negotiation O Mediation O Other (Please specify) P Arbitration P Litigation A temporary water supply is unavailable to aflfected water users in a dispute. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. P Negotiation O Mediation a Other (Please specify) P Arbitration Litigation Reason for yow answer If your first choice is unsuccessfir1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. P Negotiation O Mediation O Other (Please speciQ) A domestic water suppiy is affected by the disputed use. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. P Negotiation O Mediation O Other (Please specify) # Arbitration Q Litigation Reason for your answer If your first choice is unsuccessfu1,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation Q Mediation O Other (Please specify) P Arbitration O Litigation 1 A commercial user of water is affected by a disputed use. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. O Negotiation O Mediation O Other (Please specify) P Arbitration O Litigation Reason for your answer If your first choice is unsuccessfUl,or for what ever reason cannot be used, what would be your "second best" choice? Pick only one. O Negotiation O Mediation Other (Please speciQ) O Arbitration O Litigation 173 There is a high degree of uncertainty over scientific andor technical issues concerning a water resource. In a dispute in which the above factor is very important, which dispute resolution technique would you recommend? Pick only one. P Negotiation O Mediation Other (Please specify) O Arbitration O Litigation -- -- Reason for your answer II If your fktchoice is unsuccessful,or for what ever reason cannot be used, what would # be your "second best" choice? Pick only one. II O Negotiation O Mediation Other (Please speciQ) / There are significant impacts of a disputed activity on water usen. II In a dispute in which the above factor is very important, which dispute resolution II technique would you recommend? Pick only one. II O Negotiation P Mediation 0th(Please specify) 1 O Arbitration O Litigation II Reason for your answer If your first choice is unsuccessful,or for what ever reason cannot be used, what would II be your "second best" choice? Pick only one. O Negotiation O Mediation O Other (Please specify) Pi Arbitration Q Litigation Second Round Background Questionnaire VERIFICATION OF NAME AND ADDRESS Please complete to indicate that there are no errors in our information: Name: Organisation: Address : City: Postal Code: Phone: E-mail: Fax: RESPONDENT BACKGROUND It is important to know something about the background of the participants. We will use this background information only to develop an aggregate picture of the characteristics of the group. Your responses will remain strictly confidential. 1. Have you been involved in a local dispute of any kind in the last 10 years? =s - NO - If you answered YES to the above question, please answer (a, b, and c) a. In what ways were you involved in the dispute? (check al1 that apply) - As a third party helping to resolve the dispute - As a disputant with an interest in the outcome - In another way? (please specify below) b. Of the local dispute(s) you have been involved in, were any of those water resource disputes? c. Were any of these conflict resolution techniques used in the dispute(s) in which you were invoïved? (please check as many as apply) -Negotiation -Mediation -Arbitration -Litigation -Other tool or approach used to resolve the dispute? (please speciQ) 2. What is your educational background? (check the highest level you have achieved) - High School - College Diploma - Bachelor's Degree - Graduate Degree - Other (please specie) 3. What is your professional background andor field of employment? Note: If you need more room for your answer please use the back of this sheet. 4. How many years of work or other experience(e.g., volunteer) do you have in the following areas? Area Years Kind of Experience Water management Conflict resolution Land-use planning Agriculture Other (please speciQ) PERMISSION TO LIST YOU AS HAVING PARTICIPATED IN THE SURVEY May we list you as a participant in this study? YES - NO - Note: when you answer YES this does not mean that any of your statements will be identi fied as belonging to you. Al1 respondents are anonyrnous in the survey. Would you Iike a copy of the findings? YES - NO - APPENDIX C LIST OF RESPONDENTS Note: 52 people agreed to be listed as participants in t&isstudy. The table below contains the names of those participants who agreed to be Listed. Participant List Citv. Province - ROY Pennington Wingham, Ont. Niel Hannah Ontario Vegetable Growers' Trenton, Ont. Marketing Board 1 I - / Jeff 1 Wilson 1 Orton, Ont. Elbert Van Christian Farmers Guelph, Ont. Donkersgoed Federation of Ontario Ken Durham Srnithville, Ont. Albert Wi tteveen Grassie, Ont. Anonymous Thamesford, Ont. Bill Seminiuk Zorra Township and Thamesford, Ont. Member of the OFA Kelly Cabrera Woodwynn Fm Saanichton, B.C. MWf Shabatura Central Erie fîuit and Vegetable Growers' Association. 1 Paul Van Der Borre Ontario Fruit and Vegetable 1 Burgessville, Ont. Growers Association Wilf Ruland Dundas, Ont. Ontario Federation of Tillsonbwg, Ont. Anonymous Agriculture Ernst 1 Hills Township of Snowdon Minden, Ont. Local Government Township of Asphodel- Norwood, Ont. Anonymous Norwood T~v Hem City of Guelph Guelph, Ont. Mike M~Y Regional Municipality of Kitchener, Ont. Waterloo Alex Mitchell Township of Mildmay- Mildmay, Ont. Canick John Puhr Tillsonburg PUC Tillsonburg, Ont. Richard Beare Town of Deseronto Deseronto, Ont. Forbes Symon Bruce County Walkerton, Ont. Clare Ainsworth Township of Bexley Kirkfield, Ont. Township ofÙrell&ton Killworth, Ont. Anonymous North Ray Robinson Ridgetown PUC Ridgetown, Ont. Rob Home City of Cambridge Cambridge, Ont. Louise Hanis Town of Paris Paris, Ont. Robert Skeoch Township of Maryborough Mwrefield, Ont. Chri s LaForest Bruce County Planning Wiarton, Ont. Tim Chadder Township of West Carleton Kinbum, Ont. Gordon Garlough Williamsbiug, I ont. I 1 Gordon Coukell Stayner, Ont. Bob Woolham North Augusta, I 1 Ont. Provincial------Government~- - Bob Stone OMAFRA Brighton, Ont. Murray Blache Minisûy of Environment London, Ont. - 1 Sid 1 Vander Veen 0MAFkA Guelph, Ont. Anonvmous MNR Cambridge, Ont. Jim 1 ~~s1ï.k OMAFRA Fergus, &t. Keith 1 Reid OMAFRA Walkerton. Ont. Jamie S. Comelly Ministry of the Environment Hamilton, -&t. Anonymous OMAFRA Guelph, Ont. 1 1rmi 1 Pawlowski 1 Ontario Ministry of 1 Toronto, Ont. 1 Environment Mike Toombs 1 OMAFRA Port Perry, Ont. Federal Government Agriculture and AM-Food Guelph, Ont. Anonymous Canada Chuck Southam Environment Canada, Water Burlington, Ont. Issues Division Richard Van Ingen Department of Fisheries and Burlington, Ont. Oceans Conservation Autborities Lucy 1 Shaw 1 Niagara Penninsula 1 Allanburg, Ont. Conservation Authority Sonya Meek Toronto and Region Downsview, Ont. Conservation Authority David Watson Niagara Peninsula Allanburg, Ont- 1 1 Conservation Authoritv 1 ~onservabakhoritia (con't) Bill Baskervilte Long Point Region Simcoe, Ont. Conservation Authority Maria Picotti Credit Valley Conservation Meadowvale, Ont. Authority Brian Hunt Grand River Conservation Cambridge, Ont. Authority David Featherstone Halton Region Conservation Milton, Ont. Authority Ken Forgeron Regional Municipality of Thorold, Ont. Niagara Consulting Bill Banks CH2M Gore and Storrie Waterloo, Ont. Limited Bi-ian Beatty Ontario Groundwater Bolton, Ont. Association Other Harold Rudy Ontario Soi1 and Crop Guelph, Ont. Improvement Association i Evert Ridder Huron Stewardship Council Clinton, Ont. Mike Cooper Ontario Fann Cambridge, Ont. Environmentai Coalition Bill Davidson Ontario Groundwater Waterloo, Ont. Asociation