THE CHARACTERIZATION OF PUBLIC SECTOR MEDIATION BY Robert Zeinemann * INTRO DU CTIO N ................................................................................................ 4 9 I. GENERAL JUSTIFICATIONS FOR THE USE OF MEDIATION ................................... 51 II. CONCERNS OVER THE USE OF MEDIATION ............................................... 52 III. M ULTIPARTY PUBLIC D ISPUTES .................................................................... 53 A. Why Mediation's Use in Public Disputes Is Growing............................. 53 B. Environmental Disputes Are Unique .................................................. 54 C. The Differences Between Environmental Mediation and Private Tw o-Party M ediation .............................................................................. 55 IV WHICH DISPUTES SHOULD OR SHOULD NOT BE MEDIATED ............................. 59 CO N CLU SIO N .................................................................................................. 6 2 INTRODUCTION The rise of the field of Alternative Dispute Resolution (ADR) has produced an array of informal dispute settlement approaches. This Article focuses on the ADR process of mediation, specifically public environmental mediation.1 The modern popularization of ADR approaches started in the late 1960s as an effort to expand ADR from the labor-management arena to communities. ADR's initial expansion was partly the result of deliberate efforts by foundations * Robert Zeinemann is a Program and PlanningAnalyst at the Wisconsin Departmentof Administration, Office of Land Information Services. Mr Zeinemann holds a Bachelor of Science degree from the University of Wisconsin, Whitewater,and a Master of Arts degreefrom the La Follette School of Public Affairs at the University of Wisconsin, Madison. He is currently enrolled in the Centerfor Dispute Resolution Education at Marquette University. He thanks Professor Heather Hartley of Portland State University for reviewing a draft of this Article and giving helpful comments, and ProfessorKevin Gibson of Marquette Universityfor his encouragement. ' See Susan L. Senecah, Current Issues Facing the Practice of Environmental Mediation, 17 MEDIATION Q. 391, 392 (2000). - 49 - ENVIRONS [Vol. 24, No. 2:49 such as the Ford Foundation to expand the ADR arena.2 In the mid-1970s, mediation was applied to an environmental issue for perhaps the first time-a dam proposal on the Snoqualmie River in Washington state. Over the past de- cade mediation has become institutionalized, another tool used by public sector officials and administrators confronted with increasing numbers of complex dis- putes over the allocation of scarce resources. Governments seem at times unable to resolve these disputes, and they are turning to mediation for help. Public sector mediation is increasingly supplementing and supplanting traditional leg- islative and judicial processes. The most common form of public mediation is environmental mediation. There is a unique set of characteristics exhibited by public environmental disputes. 3 Environmental disputes may display all or some of the following char- acteristics: multiple stakeholders, undefined or unorganized stakeholders, ex- ternalities, intergenerational impacts or irreversible effects. Various parties may have different values and negotiations may be highly technical or deal with com- plex natural systems. Multiple parties may claim to speak for the public interest even though there is imperfect knowledge about natural systems. These charac- teristics make the traditional private two-party mediation analogy insufficient. In the collective bargaining model, the mediator is almost exclusively con- cerned with the process. Many environmental mediators assume the additional responsibility of obtaining a favorable result from the process.4 The differences between these two concepts, and the mediator's role with respect to them, are products of different dispute characteristics. This Article will explain the positive aspects of mediation, why it is used, and explore a few general criticisms of mediation. The next section sets out to explain both why mediation's use in the public sector is growing, and its advan- tages over traditional legislative and judicial decision-making processes. Special attention is given to environmental mediation because it represents the vast majority of all public sector mediation. In mediation literature, environmental mediation is nearly synonymous with public sector mediation. The Article also 2 See id. 3 Environmental mediation is actually a sub-category of public mediation, a distinction some authors' consider very important. See, e.g., E. FRANKLIN DUKES, RESOLVING PUBLIC CONFLICT: TRANSFORMING COMMUNITY AND GOVERNANCE 1 (1996). However, the terms "public mediation" and "environmental mediation" will be used interchangeably These two terms are often used nearly synonymously in mediation literature. 4 See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION, NEGOTIATION, MEDIATION, AND OTHER PROCESSES 180 (3d ed. 1999). Spring 20011 PUBUC SECTOR MEDIATION explains the unique characteristics of environmental mediation. These charac- teristics create unique difficulties for public sector, environmental mediation. Therefore, in the last section, this Article will argue that practitioners should carefully consider what types of public disputes are suitable for mediation. I. GENERAL JUSTIFICATIONS FOR THE USE OF MEDIATION Voluntary dispute resolution methods such as mediation work well in cer- tain situations because parties are given the opportunity to directly shape the outcome. Satisfaction with settlements is higher when parties are able to partici- pate and shape outcomes, rather than have a judicial decision imposed. 5 Volun- tary dispute resolution is also more likely than litigation to lead to settlements addressing interests and underlying problems.6 Settlements that reconcile un- derlying interests, rather than determine who is right or who is more powerful, are typically less costly.7 The hope is that voluntary resolution methods will result in solutions that are more suited to the parties' needs, transform relation- ships, reduce reliance on laws and lawyers, and give relief for nonparties af- fected by conflict - such as children of divorcing couples. Some commentators go as far as believing greater use of alternative dispute resolution may lead to the rebirth of local communities.8 Advocates of mediation techniques, such as courts, American Bar Associa- tion ADR sections or community and religious groups, have different goals and justifications for its use. Below is a list of the most often heard justifications for the use of mediation. 1) To promote understanding of other peoples' perspectives, including persons of other backgrounds, racial groups and cultural backgrounds; ' See id. 6 See LawrenceJ. MacDonnell, Natural Resources Dispute Resolution: An Overview. 28 NAT. RESOURCESJ. 5, 17 (1988). 1 "Ury, Brett, and Goldberg distinguish among processes based on whether the aim is to reconcile the disputants' underlying interests, determine who is right, or determine who is more powerful. Reconciling interests typically occurs during negotiation processes, and involves 'probing for deep-seated concerns, devising creative solutions and making trade-offs.' The prototypical rights-focused procedure is adjudication. Power procedures include strikes, wars and 'power-based negotiation, typified by an exchange of threats.'" GOLDBERG ET AL., supra note 4, at 6. 8 See id. at 8. ENVIRONS [Vol. 24, No. 2:49 2) Enhance party's control and self-determination; 3) Lower court caseloads and expenses; 4) Provide speedy settlement of those disputes that were disruptive of the community or the lives of the parties' families; 5) Improve public satisfaction with the justice system; 6) Encourage resolutions that are suited to the parties' needs; 7) Increase voluntary compliance with resolutions; 8) Restore the influence of neighborhood and community values and the cohesiveness of communities; 9) Provide accessible forums to people with disputes; and 10) Teach the public to try more effective processes than violence or litigation for settling disputes.9 II. CONCERNS OVER THE USE OF MEDIATION Criticisms of mediation come from a relatively small number of scholars.'0 They tend to focus upon power imbalances, collective and class harms, and the benefits of litigation. Some of the more fundamental criticisms are: 1) Powerful parties can impose their will on weaker parties, partly because mediation's informal setting provides fewer safeguards than more formal forums; 2) Mediation's focus on individual disputants will hide from public view disputes with societal implications; 3) Mediation's emphasis on accommodation and compromise may drain energy from collective action that would be of greater benefit to disadvantaged groups than a series of individual decision; 4) Mediation may deter large-scale structural changes in political and societal institu- tions that can only be corrected through the judiciary and not through mediation; 5) Co-option of less powerful groups by more powerful groups. This might occur when mediation is used by powerful groups to give weaker groups a false sense of partici- pation in decisions. Groups can do this by skillfully limiting the perceived range of choices to those most beneficial for the powerful group." The problem is that the 9 Id. l0 Criticisms are fewer relative to the number of articles in favor or even promoting mediation.