The Potential of Mediation for Resolving Conflicts Between Irrigation and Urban Water Users
by Joel D. Palmer (originally published in Management of Irrigation and Drainage Systems: Integrated Perspectives, 1993, American Society of Civil Engineers)
We can model conflict as a spectrum extending from mild disagreements to disputes to campaigns to litigation to fighting (Keltner, 1990). Major conflicts generally escalate from minor conflicts, and the parties’ ability to resolve a conflict on their own decreases as escalation occurs and violence becomes more likely. Increasingly forceful intervention may be required in the form of facilitation, mediation, arbitration, litigation, legislation, or police action. Disputes over water are usually engaged at the litigation stage or higher on the spectrum, with the result that “[t]he issue of what is the wisest use of water in the water-short West is in the hands of lawyers representing every conceivable interest [and is] an assurance of job security for an army of legal advisors, and a cause of deeply entrenched animosity” among disputing parties (Carpenter and Kennedy, 1980).
Yet litigation fails to account for “the goals of the contending parties, the use of water supplies to control growth in the metropolitan area, wilderness and other ecological values, and the needs of rural people who hold a deep-seated hostility toward urban demands for this natural resource” (Carpenter and Kennedy, 1980). In dealing with environmental disputes, litigation has earned a reputation for overcrowded courts, long delays, exorbitant expenses, and poor decisions (Kubasek and Silverman, 1988). Often the real source of a conflict cannot serve as the legal basis for a court challenge. Lawyers reframe issues to fit a legal doctrine and the court is not able to address the real issues and tailor an appropriate remedy. Court decisions interpret the law but rarely end a conflict or reconcile conflicting interests (Amy, 1990).
Conflict over allocation and use of water arises as much from the personal motives of individuals and the relationships among the conflicting parties, as from technical or substantive issues. Conflicts are often colored by emotional, psychological or financial issues. Often the parties have convinced themselves they are adversaries because of poor communication or misconceptions (Carpenter and Kennedy, 1980). Parties tend to see conflicts as “zero-sum” games in which one side can prosper only at the expense of the others. “[B]ecause the participants in multiparty, many-issue disputes are usually unable to deal with their differences on their own, assisted negotiation is often necessary” (Susskind and Cruikshank, 1987).
Mediation helps the disputing parties to settle conflicts peacefully, before they have escalated to the point of litigation. Where litigation involves lawyers fighting one another, mediation involves the conflicting parties collaborating to solve problems. Where litigation restricts communication, mediation encourages communication. Where litigation imposes a settlement on the parties, in mediation the settlement is decided by the parties. Where litigation is a coercive process, mediation is voluntary.
This emphasis in environmental mediation on cooperation and consensus-building is part of a larger alternative dispute resolution movement that includes divorce mediation, landlord-tenant mediation, neighborhood dispute mediation (Amy, 1990). Mediation has a longer history of use in labor-management disputes and international conflict resolution.
The traditional labor-management model of the mediator is a neutral third party who has no stake in the content of the agreement reached by the conflicting parties, but acts only to help the parties achieve an agreement on their own. The mediator leads a series of joint sessions and individual party caucuses. The mediator de-escalates the conflict, helps the parties understand one another’s interests and accommodate each other. The mediator ensures that the parties remain aware of the costs of failing to reach an agreement, and that the solutions proposed are realistic. In this “pure” model, the mediator will not promote one alternative over another and generally will not even offer alternatives of his own. “The mediator has no power to render a decision or to impose a solution” (Gray, 1989).
Bingham (1986) published the only comprehensive survey of mediation of environmental disputes. The 160 cases documented from 1973-1984 included 17 water resources cases. Many of the mediated environmental disputes involved only public agencies. Overall, agreement was reached 78% of the time. Even when those with the authority to implement the agreements did not participate directly in the negotiations, the parties reached agreement 74% of the time. Site-specific disputes were fully implemented in 80% of cases while policy agreements were fully implemented in 41% of cases. The likelihood of settlement was not correlated with the number of parties. A fairly comprehensive search of the literature made for this paper discovered no instances of mediation for resolving conflicts between irrigation and urban water users.
But the successes documented by Bingham show that mediation can produce solutions to similar environmental conflicts with which all parties are satisfied and committed to implement. One of the advantages of the mediation process in producing agreements is that it allows the parties to move beyond their preconceptions of the conflict and their stereotypes of each other (Amy, 1990). As a result, much of the conflict often dissolves once the mediator has the parties communicating. The mediator helps the parties to redefine the conflict as a common problem, and to understand that their different interests are not necessarily conflicting interests.
Mediation explicitly accounts for the different values, perspectives and motives of the parties as they craft alternatives to the problem (Carpenter and Kennedy, 1980). The mediator helps ensure that any agreement reached is technically, financially and politically feasible to implement (Cormick, 1982, Cassady and Orenstein). By emphasizing the parties’ responsibility for solving their own problems, mediation can produce a strong commitment to implementation of the eventual solution (Crowfoot and Wondolleck, 1990). Because mediation results in a consensus solution, parties are more likely to consider the process fair, abide by the settlement, and negotiate future disputes instead of suing one another (Muller, 1984).
One of the greatest advantages of mediation for managing conflict is that the process encourages solutions that transcend each parties’ negotiating positions. Figure 1 (after Pruitt and Rubin, 1986) illustrates the point. The perceived benefit of a particular outcome to a conflict is plotted along one axis for Party 1 and along the other for Party 2. Each party’s aspiration or best expectation for resolving the conflict has been drawn as a line separating the solution space into four parts. Point A represents an alternative that benefits Party 1 at the expense of Party 2, while Point B represents an alternative that benefits Party 2 at the expense of Party 1. Point C is a compromise by both parties. Point D indicates an alternative that exceeds both parties’ expectations. Mediation explicitly seeks to create alternatives of this type.
The skillful mediator is able to discover the elements of such transcendent alternatives and keep them before the negotiating parties (Gray, 1989). He transforms the conflict by moving the parties from a “zero-sum” framework to an integrative bargaining framework. If the parties can externalize the conflict as a common problem, they can often cooperate in finding solutions. “The transformation involves exploiting the multidimensionality of most conflict situations.” (Susskind and Cruikshank, 1987).
The capable mediator generally does not need specific technical knowledge of a given conflict, and in fact this can be a potential problem as “the more the agreement is likely to be a result of the mediator’s ‘leading’ the parties and the less committed the parties will be to the difficult task of implementing the agreement” (Cormick, 1982).
Gray (1989) has listed the tasks mediators can be expected to perform:
* assessing readiness to collaborate
* getting the parties to the table
* minimizing resistance
* ensuring effective representation
* establishing a climate of trust
* modeling openness, optimism, and perseverance
* designing and managing the negotiation process
* managing data
* getting consensus
The nature of mediation makes it appropriate only under certain conditions. The mediator’s first task during the entry or conflict assessment phase is to evaluate the state of the conflict and whether it is “ripe” for mediation, or if the situation is too far escalated for mediation to be effective (Cormick, 1982). The mediator has extensive exploratory discussions with the parties before any commitment is made to negotiate the issues. If the parties are able to negotiate on their own, mediation will be of little value and the mediator’s presence may be a hindrance. Similarly, if the parties believe they have more to gain by stalling agreement or proceeding with a lawsuit, mediation will not be useful.
If after this evaluation the mediator decides to proceed, he must carefully “shape the table” by deciding who will take part, and how organizations will be represented. The mediator should determine who would be able to block implementation of an eventual agreement, and endeavor to include them in the mediation (Bingham, 1989).
The specifics of the process and the mediator’s style varies from case to case (Gray, 1989), but a differentiation, or problem-definition stage followed by a collaborative, or problem-solving stage is usual. Bingham (1989) describes a two-stage process for mediation of complex, multi-party disputes. The mediator first convenes the parties’ scientific and technical personnel to establish the facts of the case, what is known and not known, and what is presently in dispute...Next, a larger session, perhaps lasting days, is held with representatives of all identified interests.to negotiate a settlement. Bingham’s 1986 survey showed that the median duration of all cases from entry to settlement was 5-6 months, while 10% took more than 18 months.
“The mediator is, at the most basic level, a facilitator of communication between parties” (Kubasek & Silverman, 1988). He must enforce ground rules yet allow the venting of angry feelings in a safe atmosphere. He must overcome power imbalances and ensure that parties are at all times aware of the alternatives to continued negotiations (Susskind and Cruikshank, 1987). He must foster a mutual understanding of the needs and concerns of all parties, and help them generate, assess and select alternatives that satisfy all interests and can be implemented (Carpenter and Kennedy, 1980).
Mediation can be a powerful means of managing conflict productively. It can help mutually interdependent parties with different long-term interests and objectives to identify and implement cooperative actions. But “the search for joint gains does not require everyone to be ‘nice’ or to make concessions...” (Susskind and Cruikshank, 1987). “Mediation does not lead to a resolution of the basic differences that separate the parties in conflict ... [it] can help the parties agree on how to make the accommodations that will enable them to co-exist despite their continued differences.” (Cormick, 1982). Mediation is not a cure for ongoing environmental conflict.
Compared to the labor-management model, the environmental mediator may have a more complex task and additional responsibilities. Initiating the process is generally harder, and identifying the parties and issues can be difficult. Some writers in dispute resolution argue that the less-structured context of environmental conflict demands a more activist role than the labor-management-style mediator. Susskind and Cruikshank (1987) state that mediators need special knowledge of public sector operations and an ability to “sell” mediation to the parties. Others suggest that mediators should sometimes propose their own solutions to conflict, as an impetus for the parties to negotiate. However, Lentz (1986) warns that once the mediator starts leading the process actively, the traditional role of mediation is lost. Such activists run the risk of becoming a party to the dispute and destroying their impartiality.
Another caveat is expressed by Cormick (1982): “A danger we now face is that the overselling of the process and its misapplication by inexperienced interveners anxious to enter the field will result in costly failures that could broadly discredit the mediation process.” One potential problem is that mediators, controlling access to the negotiations to facilitate settlement, may exclude less powerful or less organized parties. Mediation may be unable to cope with significant imbalances of power, negotiating ability, or technical expertise. Some detractors of environmental mediation aver that certain issues generate such fundamental disagreement that simply to agree to negotiate is to compromise one’s values (Amy, 1990).
But perhaps the best measure of mediation’s value is its success at resolving conflicts and here the literature is unanimous. Mediation does produce consensus agreements, improves the relationships among the parties, and decreases the chances of the conflict recurring (Ury, Brett and Goldberg, 1988, Kubasek and Silverman, 1988).
As employees of, and consultants to rural and urban water interests, the members of the irrigation engineering community are in positions to advocate the use of mediation. By endorsing this alternative conflict resolution process, we promote integrative, collaborative problem-solving, and create substantial opportunities for creative technical and managerial solutions to water development problems.
References
Amy, Douglas J. (1990). “Environmental dispute resolution: the promise and the pitfalls.” Environmental policy in the 1990’s, Norman Vig and Michael Kraft, eds., CQ Press, Washington, DC.
Bingham, Gail (1986). Resolving environmental disputes: a decade of experience (executive summary). The Conservation Foundation, Washington, DC.
Bingham, Gail (1989). “Must the courts resolve all our conflicts?” National Forum: Phi Kappa Phi J., 69(Winter), 20-21.
Carpenter, Susan L. and W. J. D. Kennedy.(1980). “Environmental conflict management.” The Environmental Professional, 2(2), 67-74.
Cassady, Jane and Suzanne Orenstein. “Mediating wetlands disputes.” Source unknown.
Cormick, Gerald W. (1982). “The myth, the reality, and the future of environmental mediation.” Environment, 24(September), 14-17, 36-39.
Crowfoot, James E. and Julia M. Wondolleck, eds (1990). Environmental disputes: community involvement in conflict resolution, Island Press, Washington, DC.
Gray, Barbara (1989). Collaborating: finding common ground for multiparty problems, Jossey-Bass Inc., San Francisco, CA.
Keltner, John (Sam) (1990). “From mild disagreement to war: the struggle spectrum. In Bridges not walls, J. Stewart, ed., McGraw-Hill, New York, NY.
Kubasek, Nancy and Gary Silverman (1988). “Environmental mediation.” Am. Bus. Law J., 26(fall), 533-555.
Lentz, Sydney (1986). “The labor model for mediation and its application to the resolution of environmental disputes.” J. App. Behavioral Sci., 22(2), 127-139.
Muller, Frank (1984). “Mediation: an alternative to litigation.” Am. Water Works Assoc. J. 76(February), 42-43.
Pruitt, Dean G. and Jeffrey Z. Rubin (1986). Social conflict, escalation, stalemate and settlement, McGraw-Hill, Inc., New York, NY.
Susskind, Lawrence and Jeffrey Cruikshank (1987). Breaking the impasse: consensual approaches to resolving public disputes, Basic Books, Inc., New York, NY.
Ury, William, Jeanne Brett and Stephen Goldberg (1988). Designing systems to cut the costs of conflict, Jossey-Bass Inc., San Francisco, CA.
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