Standing Committee Symposium on The Role of Private Institutions in Public Environmental Decisionmaking: Private Facilitating and Adjudicative Functions: C. Experiments in Decisionmaking Processes

Robert C. Barrett

Robert C. Barrett is Program Officer, The William and Flora Hewlett Foundation, Menlo Park, CA.

I was struck, when practicing law, with how much of society's human talent and creative resources were being allocated to litigation processes that appeared to furnish little in the way of problem-solving outcomes. The results seemed certainly not commensurate with the amount of effort invested.

I was led to explore what other processes might be used and where they might be appropriate. It occurred to me that throughout society, in every kind of relationship, differences would arise reflecting the differences in people's genetic make-up, backgrounds, viewpoints, interests, and the like. While conflicts are inevitable, they are neither good nor bad by themselves. What we need to do as a society is to find better ways of managing conflicts — to draw out constructive solutions from the creative tensions that might produce better outcomes.

A year ago, I attended a meeting of the Council on Foundations. It was a large meeting, and we were all listening to a panel about how the public sector and the private sector might cooperate better on finding answers to public problems.

The first speaker, a Congressman, listed several areas where that cooperation might take place. In particular, he talked, in very moving and eloquent terms, about the problem of teenage pregnancy and the great damage that it was doing to the fabric of family life, particularly in the Black community. He suggested a massive governmental program of education and assistance, and he concluded his remarks with a very dramatic appeal for that kind of program.

The second speaker had a different outlook, although he felt compelled by the dramatic presentation of the previous speaker to talk a little bit about teenage pregnancy. He did not have any sense at all that it was a major problem. The one thing of which he was convinced was that the federal government had no responsibility in the area, and the worst thing that could be done would be to start a massive federal program.

The third speaker, a state legislator, had yet another perspective: to provide opportunities for federal and state governmental [17 ELR 10270] cooperation, bringing in resources also from the private philanthropic community. Together they might create a whole of series of experiments, which would allow some good ideas to be highlighted and then repeated.

The panel had been planned so that there were regular exchanges back and forth among the speakers. In successive responses to one another's remarks, the panelists became more heated, dramatizing their particular points of view. And it seemed to me that many in the audience, including myself, and perhaps the speakers as well, felt frustrated by the experience.

It was not that they failed to make good points. Their points were well made, and they concerned an important issue. The problem was that they talked about it in exclusively an adversarial manner. Each panelist had taken a problem, analyzed it from his own point of view, his own value system or belief structure, and then produced a solution, hoping to persuade the other panelists or the people in the audience of its merit. All did so, however, in a setting where none of the people could permit himself or herself to be persuaded.

It was a symptomatic illustration of one of the difficulties in our society. It springs, undoubtedly, from our cultural tradition of individualism and self-reliance, and the competitive ways that we go about dealing with differences. We analyze problems, design solutions, and then go out and try to persuade people that our analyses and our solutions are what should be adopted.

Meanwhile, everyone else is doing the same thing. People go on the public record on behalf of particular solutions, and it becomes very difficult for the good points of all those analyses to be put together in a coherent or concordant way.

The answer — or one prescription for the problem — is for society to develop more knowledge about the process component of problem solving, to balance the attention that is given to the substantive side.

I would like now to provide a quick overview of the diversity of experiments currently underway that focus on process. There are four types: mediated and facilitated negotiations, and private adjudicatory and quasi-adjudicatory processes.

In adjudicatory processes, a neutral third party is asked to play a role as a decider, with power to determine the issue. The subject for decision could be a few preliminary facts, or it could be the entire case in dispute. In the adjudicatory context, the technical nature of a factual dispute at times calls for the help of a technical expert as a decisionmaker. Often-times, arbitration can improve on court processes because of its speed and relative evidentiary informality. A third device is the minitrial, used mostly in the commercial context. A case is prepared for trial, but instead of waiting for a trial date to be set, the lawyers make a simplified presentation of that case to a panel. The panel is typically composed of one decisionmaking authority from each party (the president, one of the executive officers, or an agency decision maker) and a moderator. The presentations are made not to arrive at a decision, but, rather, to educate both sides about the strengths and weaknesses of the case. They can then work in an informed way on settling the case. Although it has been used mostly in the commercial context, it might be applied successfully in enforcement or other pending actions in the environmental field.

Turning to mediation and facilitated negotiation, numerous cases have demonstrated how mediators can help parties to develop ideas, understand one another's interests, and communicate. They can take various roles, depending on the degree of formality in the process. In some cases, mediators simply facilitate meetings, help to carry messages, or help people to avoid conflicts that can be foreseen in the negotiating process itself. In other cases, they wait until disputes are crystalized and then play a "shuttle diplomacy" role, meeting with the parties together or separately, to explore options for agreement.

There have been some recent examples of private facilitating and adjudication that are worthy of note. One was begun by the Institute for Resource Management (IRM), an organization set up by Robert Redford with assistance from Stewart Udall, Congressman Phil Sharp, and others. They convened a process involving some 30 to 40 parties, including the Natural Resources Defense Council (NRDC), the principal representatives on Outer Continental Shelf (OCS) leasing from some fifteen oil companies (typically the vice presidents of worldwide oil exploration), representatives of commercial fishing operations, Alaska native organizations, and other public interest organizations, to explore whether improvements could be made in the Department of Interior's process for deciding which areas should be open for OCS oil and gas leasing.

To make the process manageable between the environmentalists and the industry, IRM tried to help the parties determine what areas would be of highest importance to each side, to determine which ought to be in the leasing plan and which should be out. They avoided the California coast and Bristol Bay and concentrated on the Bering Sea. After ten months of negotiations facilitated by IRM, they reached an agreement on the contents of the leasing plan and a process for resolving further areas of dispute.

At first the government was excluded, because it was felt that the process was complicated enough with the number of parties already present. The participants do intend to bring in the government in a second phase, however, and intend this as a model for dealing with even more difficult OCS issues.

A second example involves an organization known as Accord Associates. In one of their cases, they were called upon to develop a public involvement mechanism for radiation monitoring in the area around the Three Mile Island Nuclear Power Plant. They served as process consultants, and made recommendations (e.g., for a citizens' advisory committee) about ways that all the affected parties could communicate better with one another.

A third example is the Northwest Renewable Resources Center, an organization that was set up by three constituencies that were in perpetual conflict over fishery resources. Their membership includes corporate people, tribal representatives and environmental representatives. Under a treaty from the last century, Indian tribes were entitled to catch 50 percent of certain fish returning to traditional fishing grounds in the Columbia River. Because of habitat degradation and overfishing, that catch was declining each year. The parties had a history of fighting over the declining resource with increasing hostility. They formed the organization as a way of encouraging a joint management approach to the fishery resource. As a result, they drew up plans to conduct joint research, to begin fish stocking programs, and eventually to work with the state fishery resources agencies toward improving the resource.

As an example of the difference it has made in their relationship, in 1983 there were 66 court actions that involved the parties. By 1984, after the plan had been agreed to, there were none. Because of the Center's success, they are continuing to design a variety of other joint management approaches to fishery and other renewable resource problems in the Northwest.

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A fourth example is a group that has been around for a long time, The Mediation Institute, which assisted oil companies and fishermen to resolve chronic problems relating to oil exploration in the Santa Barbara area. Seismic operations had been conducted in fishing areas, tearing nets, disrupting fish schools, and the like. Together, the parties worked out a joint management system that has served the interests of both sides better than the system of times past.

A final example concerns a group that was set up by state compact, the Tahoe Regional Planning Agency. TRPA had spent four years revising a plan for protection of the Lake Tahoe Basin, after a court challenge had found the prior plan inadequate. In the usual fashion, the agency tried to meet what they perceived to be the interests of the various parties and designed a new plan. As soon as it was approved, however, lawsuits were filed by both environmentalists (claiming it was not sufficiently protective) and the development community (claiming that it was too restrictive). The case was tied up in litigation, and meanwhile there was no plan, and no regulation, on the lake.

The court was anxious to have the parties settle, and the parties did try for a year, using typical settlement approaches. Their efforts were unsuccessful. As a last ditch effort, just as they feared that the state legislatures would simply give up on the Regional Planning Agency, they decided to use a facilitated consensus building approach. They contacted a well known meeting facilitator in California, an organization known as a Forum on Community and the Environment (FCE). FCE was able to help them first to focus on overall goals and, later on, to develop a plan by consensus.

There are many ways to categorize these techniques, based on the policy level, the site-specific level, the objectives sought, or the relative formality of the process. Such distinctions, however, while individually useful, fail to capture the essence of what is taking place. We are building, it seems to me, a body of knowledge about the processes — focusing not on the question of what we as a society ought to be doing, but, rather, how we ought to decide what to do.

There is an analogy with the development of the field of medicine. Hundreds of years ago, once systematic study was begun and people became able to diagnose problems and suggest treatments for them, there followed a gradual accumulation of knowledge about how sickness and diseases could be treated. Similarly, we are now confronted with situations where problem-solving processes break down. As in medicine, our knowledge about disputes is increasing, so we have better ideas about what might help to get them back on track. A great variety of processes might be employed in any given situation.

I do not accept completely the view that conflict resolution or mediation is simply a step added to previously existing processes. Litigation itself, for example, involves a number of steps where conflicts might occur; the adversarial fact finding process might be quite appropriate at some of these steps, and a mediated process more appropriate at others. As we acquire more experience with these approaches, we may develop a more complex, sophisticated, and interwoven response to the shortcomings of modern legal processes.

The Hewlett Foundation has begun supporting organizations engaged in theory development at universities around the country. We are encouraging scholars to look at the whole concept of conflict and its resolution, to collect data on areas ranging from the family to international affairs, and then to apply their insights to actual cases. The goal is to assemble data on what things seem to work, under what conditions, and how they can be improved.

We are making other grants to organizations that serve as practitioners of dispute resolution. Our work has thus extended beyond environmental disputes, on the theory that our understanding is primitive at this point and largely intuitive, and it needs the kind of experimental work that arises in a diversity of situations.

Our renewed attention to process reveals that there are some procedures already institutionalized that have very effective features, but which might be improved with the knowledge currently being developed. Most of my practice in environmental law was in the National Environmental Policy Act¹ (NEPA) and state NEPA areas. These are good illustrations of what I mean. There are five processes that represent effective process fundamentals:

(1) The scoping process is a way of making sure that the stakeholders in an issue are at the table, are involved in the process, and their concerns are known to the entire group.

(2) The preparation of documents can be undertaken at different conceptual levels of decisionmaking. An environmental impact statement, for example, can be prepared on a policy-oriented basis or a very site-specific basis, corresponding to the ways that mediation has worked at either level.

(3) The environmental impact statement process is a dynamic process. It is not simply for the purpose of developing a document, but to develop a document in draft form that invites responses and critiques. It then comes out in a final form, which itself may be revised as new facts came to light. More than a document, it becomes an interactive process.

(4) The document attempts to assemble a common data base, open to everyone, showing facts that ought to govern a decision and the best consensus thinking about the implications of different possible actions.

(5) The environmental impact statement focuses not just on the proposed action itself, but on alternatives and mitigation measures. That is: what can be done, including not building the project, that might satisfy the interests of parties? It is an illustration of the openness of the agenda that characterizes mediation sessions.

Private action supplementing governmental action is not a new concept, and if one looks beyond the pollution control area to, for example, land conservation, numerous efforts can be seen to supplement the work of the Park Service, the Fish and Wildlife Service, and other agencies. There are national efforts, such as The Nature Conservancy, and there are very localized efforts, with land trusts and a variety of other organizations.

The nonprofit or public interest sector is very much alive and very active all throughout environmental issues. It can only increase, as the trend toward more participation and more actual hands-on problem solving spreads throughout the society.

Conflict resolution or mediation is attempting to strike a new balance between two aspects of our cultural heritage that are often in tension: one, our fixation on competition, individualism, and self reliance; the other, our recognition that we do have common interests, that we are in a profound way a community, whether as a family, a local community, a state or a nation.

Let me return for a moment to that panel discussion on teenage pregnancy. If the panel had been formed not merely to give intelligent remarks, but actually to address and solve [17 ELR 10272] the problem of teenage pregnancy, they would have had to restructure their talks. First they would have had to focus on whether a consensus existed that there was a problem. Second, did they have a consensus that it was a problem that they ought to try to solve? Third, did they have a consensus about how to decide what to do? And finally, they should have opened the question of what to do.

We must resist the temptation to start with a statement of the problem followed by our prescriptions, without going through the other steps that allow our efforts together to succeed.

Discussion

PARTICIPANT: Have there been mediation cases to resolve traditional NEPA-type disputes?

BARRETT: I think the NEPA process itself contains the essential elements of a mediation process, but it is not necessarily so recognized. There are a couple of features though, that must be adhered to in order to preserve the integrity of the process. There is a danger that the agency responsible for the document preparation will see itself as having a separate mission and thus will see the NEPA process simply as a paper-work requirement and a diversion. The decision must spring from the ideas presented in the course of the process rather than being already made, which is then simply supported by the document. This is perhaps the biggest problem with it.

Let me suggest a solution. When there is a NEPA document underway, someone should be appointed to safeguard the process. The person would make sure that the time requirements are met and that a great effort is made to get people out to the scoping meetings. Perhaps a series of scoping meetings should be held to make sure that the issues do come out. The person should see to it that the issues are addressed in good faith and in sufficient detail. The person should be entirely nonpartisan and separate from the agency's decisionmaking function. Duties should be confined to ensuring that the document and the process serve their purpose.

PARTICIPANT: Sandra, has Clean Sites ever been served with a subpoena duces tecum with respect to the confidential records or documents that you have received in these cases; and if so, have you been able to resist that subpoena to protect the documents?

RENNIE: We have not. It is an issue that the parties raise very frequently prior to sharing confidential documents with us, often before people have anything specific that they want to share. We have done a little bit of research to determine how the mediation community has been treated in this matter, and we can find no examples of the court ordering the release of confidential documents that have been acquired during a mediated negotiation. Courts are probably sensitive to our defined role, and we suspect that if we were to step over a rather fine line, they might not afford us such protection. We are very sensitive to the possibility, but we have not yet been served with a subpoena. We expect that it will happen at some point.

1. 42 U.S.C. §§ 4321-4347, ELR STAT. 41009.