Peter Williams, Associate Director
Making decisions and resolving disputes are two of the most basic human activities. Yet, aside from academics and lawyers, few people think much about the details of what is involved, especially during a collaborative process.
Today, as various federal land management agencies pursue changes in environmental analysis and decision making, more attention is being paid to how those decisions are made and how to resolve disputes that can arise during a decision process or as a result of a decision. In some ways, the basic issue is whether a process encourages looking over the horizon at longer-term issues and interests.
Here, we take a closer look at how federal land management agencies make decisions and resolve disputes, sometimes with the help of a third party. There can be a range of approaches to third-party dispute resolution during public land management efforts. But first, let’s define a few things.
- What is a third party or neutral third party? When a dispute occurs between two groups or “parties” (an agency and a private organization, for example), a third party—neutral to the dispute of the other parties—can help reach agreement. Even when more than two parties are in dispute, the neutral party is called the third-party, neutral to the dispute, yet an advocate for the process.
- What is a dispute? A dispute occurs between two or more parties when one party makes a claim or demand, like taking a position, and at least one other party rejects it, often by taking a different position. Disagreements, if left unresolved, can escalate into a dispute.
So, imagine a dispute. How might the parties reach an agreement or resolution? Often times, a third-party mediator or arbitrator (sometimes called an arbiter) will use “Alternative Dispute Resolution” (ADR) skills or techniques, including mediation and arbitration, perhaps along with other ADR techniques like collaboration and negotiation.
What’s the difference between arbitration and mediation? The answer lies in who makes the decision. During an arbitration process, an arbiter has the authority to make a legally binding decision if the parties fail to reach agreement. In this sense, parties who agree to arbitration give up some of their authority to the arbiter.
During a mediation process, a mediator guides the process and the parties make their own decision, even if it is to not reach agreement. There are exceptions, such as non-binding arbitration, where there is no enforcement on the parties of the arbiter’s decision. Because in non-binding arbitration the parties are not bound by the decision, the arbiter’s authority is obviously limited.
And remember, first, the techniques of mediation and arbitration overlap, as when arbiters use mediation techniques or mediators use negotiation techniques. Second, note that collaborative processes are generally facilitated, so the formal role of a mediator or arbiter doesn’t apply even though the techniques of mediation, non-binding arbitration, and even negotiation often have important roles within a collaborative process.
ADR and environmental decision making: Process matters. The 1996 Administrative Dispute Resolution Act (ADRA) authorizes federal agencies to use ADR techniques to supplement other dispute resolution methods when the parties agree.* Yet, ADRA encourages agencies not to use ADR techniques if other parties not involved in the proceeding may be significantly affected.**
A key point is that, with natural resource management planning and public land management planning, there are a large number of parties—individuals, groups, organizations, or agencies—who could claim an arbitration decision does or would affect them. Based on ADRA language, this suggests formal arbitration might not be a good fit for addressing or resolving these types of disputes unless the dispute is relatively narrow and involving the affected parties is feasible and possible. Instead, another approach to ADR—collaboration—might be a better fit for several reasons.
Collaboration and ADR. Collaboration is now widely applied to public land management for some very good reasons. One ADR-related reason is that most public land management decisions affect a large number of interests and parties, well beyond the narrower scopes of typical disputes of business or administrative issues. Arbitration and mediation work with a fairly small number of parties, whereas a collaborative approach is well suited when there are more participants involved and larger issues at stake.
With a collaborative approach, a third-party with relevant process expertise (like facilitation and process design) supplements traditional expertise on the various issues and subject matters, or on implementation and management. Part of the understanding that emerges among the participants is about interests, as opposed to positions. During more traditional planning or decision processes, positions stated at the beginning of the process are treated as fixed, with the parties encouraged to give up or modify some or all of their positions to reach agreement. In contrast, during a collaborative approach, all parties are encouraged to reframe positions and to understand the interests underlying those stated positions. Instead of giving up something, with everyone losing, a collaborative approach encourages participants to see alternative ways to meet their interests, to build up from shared interests instead of down from opposing ones.
In addition to working well with larger numbers of participants, collaboration also can occur in ways that supplement other dispute resolution methods and any formal procedural requirements. For example, a healthy collaborative process can address:
- Public engagement required under the National Environmental Policy Act (NEPA),
- Information collection constraints under the Paperwork Reduction Act (PRA),
- Sunshine requirements under the Federal Advisory Committee Act (FACA),
- Additional procedural requirements or preferences identified during the process design phase.
The “Willing-To-Live-With-It” Standard. When done well, a collaborative approach has a notably high-level of integrity because it protects the decision authority of all participants, including that of the land management agency. For example, a collaborative process can protect the decision authority or rights of participants to challenge an eventual decision even as the process works to find a decision that most or even all participants are willing to live with. Another way to think about this is that a good collaborative process protects the due process rights of all the parties, including any that choose not to participate in collaborative activities and, instead, to engage only in more formal, legal processes. Similarly, a collaborative process can protect the decision authority of federal agencies even as participants work with the agency to find innovative and insightful options for moving forward.
Another point to consider is that a collaborative approach is fundamentally learning-oriented. The process itself is about jointly coming to understand the issue, context, history, and implementation-oriented options. In this sense, it is a “diagnostic” approach, as opposed to traditional expert-oriented ones (like prescriptive, descriptive, and predictive approaches). A shared understanding emerges from the broader group and the willingness to live with it standard is sought, meaning that most if not all participants learn enough about the issue and options, as well as about the fairness of the process, that they become willing to live with the outcome even if it isn’t what they might have preferred most at the beginning.
Collaboration looks over the horizon to implementation. There is another important distinction between collaboration and the other ADR approaches: Arbitration and mediation tend to be one-off processes that address a narrow set of disputed issues. The goal, generally, is to resolve those issues that are most immediate.
A collaborative approach to decision making, however, opens up the participants to a collaborative approach to everything else: implementation, monitoring, evaluation, and other forms of feedback. In effect, collaboration looks over the horizon, beyond the decision itself.
Arbitration and mediation are solid techniques in the category of adversarial dispute resolution, alternatives to resolving a dispute through traditional, adversarial legal processes. Collaborative approaches, in some regards, could be placed into a separate category because it takes careful, intentional work to move from an adversarial relationship to a collaborative one.
Returning to the idea of “due process” described earlier, we should recognize that collaborative efforts still allow for disputes to be addressed through ADR or even adversarial processes, like administrative appeals or lawsuits. In other words, parties can work in a collaborative way while also recognizing that adversarial disputes occur. When a dispute arises, a solid foundation of collaboration often allows those disputes to be resolved more quickly and constructively. Often, when the dispute is resolved, the parties can return to their collaborative approach.
When all is said and done, collaboration can be viewed as a category of approaches that includes planning, decision-making, learning, evaluation, and assessment. Perhaps most importantly, collaboration includes working together, on the ground. Collaborative parties not only find a willingness to live with a decision, they also agree to help each other get the work done, looking over the horizon at a future well beyond any immediate decision or dispute.
So, if you are looking for a practical approach to bring people together, pay attention to how you might use a collaborative approach to avoid or resolve some disputes, identify common ground, and keep disagreements from escalating. Most importantly, pay attention to how a collaborative approach can grow a willingness to help get the job done.
* 5 USC 571-584. Be careful not to confuse ADRA with the 1998 Alternative Dispute Resolution Act, which deals with processes within the judicial system.
** The language is “…shall consider not using…”, which is strong, but short of a requirement or mandate.