Negotiating Environmental Agreements: How To Avoid Escalating Confrontation Needless Costs And Unnecessary Litigation

By Lawrence Susskind, Paul Levy and Jennifer Thomas-Larmer

When business leaders, government officials, and other stakeholders come to the table in an environmental, health, or safety dispute, acrimony often results, leading to expensive and time-consuming litigation. Not only does this waste precious resources, but rarely does the process produce the best outcome for any of the parties involved.

For the past five years, the authors of this volume have conducted semi-annual seminars at the Massachussetts Institute of Technology and at Harvard to provide business leaders and regulators with the knowledge and skills they need to more effectively handle environmental, health, and safety negotiations. Their strategy, known as the "mutual gains approach," is a proven method of producing fairer, more efficient, more stable, and wiser results. Negotiating Environmental Agreements provides the first comprehensive introduction to this widely practiced and highly effective approach to environmental regulation.

The book begins with an overview of the mutual gains approach, introducing important concepts and ideas from negotiation theory as well as the theory and practice of mediation. The authors then offer five model negotiations from their MIT-Harvard Public Disputes seminar, followed by a series of real-world negotiated environmental agreements that illustrate the kinds of outcomes possible when the mutual gains approach is employed. A collection of writings by leading experts provide valuable insights into the process, and appendixes offer both instructions for conducting model negotiation sessions and analysis of actual game results from earlier seminars.

This is the only prescriptive text available for the many regulatees and regulators involved in environmental regulatory negotiations each year. Anyone involved with environmental negotiation -- including corporate and public sector managers, students of environmental policy, environmental management, and business management -- will find the book an essential resource.

• Language: English
• Publisher: Island Press
• Release date: Apr 22, 2013
• ISBN: 9781610912914

Lawrence Susskind

LAWRENCE SUSSKIND is Ford Foundation Professor of Urban and Environmental Planning at the Massachusetts Institute of Technology, and the Founder and Chief Knowledge Officer of the Consensus Building Institute. He has served on the faculty at MIT for over 40 years. He is also Vice-Chair of the Program on Negotiation at Harvard Law School, which he helped to found in 1982 with Fisher and Ury, and where he co-chairs the MIT-Harvard Public Disputes Program, the Negotiation Pedagogy Project and teaches advanced negotiation courses. He is the author of Good For You, Great For Me. He offers a range of executive training programs every year and has served as a guest lecturer at more than two-dozen universities around the world. Larry is the author or co-author of 16 books, many of which are published in multiple language.

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materials.

Introduction

Hundreds of environmental agreements are negotiated every week in the United States. Many involve the settlement of pending litigation. According to most estimates, 90 percent of these cases are settled before they ever reach a judge or jury, although many require extensive negotiation before they are resolved.

Other environmental negotiations are stimulated by permitting and licensing requirements. The U.S. Environmental Protection Agency (EPA) and the 50 state environmental agencies process hundreds of permit requests under the Clean Air Act, the Clean Water Act, and related statutes. During all these permitting activities, site reviews conducted by regulators are often contested by the companies involved, or by community groups or environmental organizations, leading to complex negotiations involving multiple parties. In literally thousands of jurisdictions—and before hundreds of administrative law judges—proponents, opponents, and regulators, or their hired guns, engage in permit negotiations all the time. These negotiations can take place before, during, or after formal permit requests are filed.

In these legal and regulatory settings, agreements are typically reached only after costly and bitter struggles. These battles—in addition to being the byproducts of regulation and litigation—are signs of our inability as a society to handle policy and political differences in an efficient and cost-effective way. The agreements reached often fall short (from the standpoint of any impartial observer) of addressing the underlying concerns that brought the parties together in the first place. Most represent little more than one side or the other giving up, at least temporarily. Thus, even when regulatory, legal, and policy disputes are settled, it is possible that better agreements could have been crafted—that more could have been done to protect public health, ensure the careful management of scarce resources, or guarantee that the public’s long-term interests are not sacrificed for short-term economic gain. The effectiveness of settlement agreements depends on how well the parties involved are able to deal with their differences through negotiation. Unfortunately, they are not often able to do it very well.

There are at least three reasons why regulatory and policy disagreements concerning environmental protection and public health are not resolved as creatively or cost-effectively as they could be. First, the parties involved often do not realize they are taking part in negotiations. Individuals involved in litigation, administrative appeals, permit discussions, or political action typically view these activities as battles to be won or lost. They are unprepared for and often unwilling to participate in the give-and-take required to produce agreements that meet the interests of all sides. Often, parties are represented by lawyers who are in no rush to settle because they bill by the hour. Second, many regulators claim they are not allowed to negotiate. The government’s job, they assert, is to make decisions and enforce the law. Consistency ensures fairness, they believe, and no one deserves special treatment. The fact that they have enormous discretion is not something they like to admit. Indeed, many elected and appointed officials believe that they do not have the legislative mandate they need to treat these issues as negotiable, even if they could achieve a better result. Finally, the parties to many environmental negotiations are utterly unprepared to pursue their own interests through negotiation. They simply do not have the skills needed to negotiate effectively.

For almost six years, the Environmental Policy Group at the Massachusetts Institute of Technology (MIT) has offered a workshop entitled Negotiating Environmental Agreements. The premise of the workshop is that there is, indeed, something to negotiate when government regulators, the regulated community, and concerned interest groups square off across a table to debate environmental issues. More than 1500 senior executives, government regulators, and interest group leaders have participated in these training sessions. Many report that they are now better able to deal with the problems that arise in legal and regulatory settings. In this book, we have summarized the key ideas and techniques presented at the MIT workshop. In fact, we have packaged the actual overheads, lecture notes, game materials, and background readings that are used in the workshop.

In teaching the workshop, we look at environmental negotiation from three perspectives. From the government’s perspective, the question we ask is, How can we use the discretion available to us to induce the regulated community to exceed minimum environmental protection requirements and voluntarily strive for superior performance? To date, government regulators have rarely looked for opportunities to use their discretion in ways that might encourage the regulated community to go beyond minimum requirements. From the corporate perspective, the question we ask is, How can we get the government to exercise its discretion in ways that allow us to meet legal requirements and community concerns at the lowest possible cost while maximizing our market share and our reputation? Corporate officials have approached most regulatory negotiations as a confrontation. They have rarely tried to put themselves in the shoes of the regulators or help them meet their obligations. From the community’s perspective, the question we ask is, How can we get government and the regulated community to take our concerns seriously? Interested outside parties are typically not just interested in everyone meeting minimally acceptable requirements—they want environmental impacts and public health risks reduced as much as possible. Yet they have rarely sought to encourage joint problem solving between regulators and regulatees or determine how they might contribute to that process.

Understanding the Status Quo

Imagine a typical set of events leading to a request for a permit to expand an existing industrial production facility. Assume the facility provides hundreds of jobs and is located in an industrial area. The company involved, we will call it Big Corp., has all the permits it needs to operate at present levels, but it wants to expand. To do that, it needs a new air-quality permit from the state environmental agency. The county government wants the facility to grow, because that will guarantee additional tax revenue. Government officials in the town of Niceville, where the facility is located, have reservations about the expansion plans because of public health concerns expressed by nearby residents.

The plant produces computers and computer parts, and its normal operation creates several kinds of emissions. The plant owners insist that they have always done everything necessary to meet all environmental legal requirements. Credible experts, however, claim that there is (a) some risk that the plant does not always run as cleanly as the owners claim—for example, during short-term malfunctions; and (b) some risk that even if the plant runs as promised, the health of plant workers and those living in the area could be adversely affected over time. People who suffer from certain respiratory illnesses are thought to be at particularly high risk. Some of the scientists are also concerned that existing air-quality standards are inappropriately low, but those standards are embodied in law and regulation and cannot easily be changed.

Based on these scientists’ assertions, a local environmental advocacy group (we will call them Save the Earth) has filed suit against the company for alleged violation of environmental laws. Their hope is that the suit will, at the least, thwart Big Corp.’s expansion plans. The labor union at the plant, while concerned about adequate protection for its members, does not want to jeopardize the new jobs that would be created if the expansion goes ahead. The mayor of Niceville has asked the state public health agency to review the operation of the plant and provide a guarantee that area residents will not be harmed if the plant expands. Concerned residents have formed a group, called STOP IT!, that wants the plant shut down permanently. They claim they have been penalized long enough, and that because many of them are poor and are racial minorities, the plant owners are guilty of environmental racism. The plant manager is being pressed by senior corporate officials (in another state) to move forward with the expansion. Indeed, the plant manager has gotten strong hints that if the expansion does not move forward quickly, the plant will be shut down, although that is not generally known. The plant operates in a state where the EPA has agreed to let the state take responsibility for issuing air-quality permits because they have adopted higher standards than those prevailing at the federal level. The state regulators are besieged from all sides. They have no choice but to grant a permit if the proposed facility meets all legal requirements, but they fear some of the residents’ concerns are valid.

In the negotiation world, we look at situations like this and ask how each side views its BATNA—its best alternative to a negotiated agreement (Fisher, Ury, and Patton, 1991). That is, what is most likely to happen to each group if no agreement can be worked out among them? If a group’s members are optimistic about getting what they want by pursuing litigation or appealing to their elected representatives, they will not be inclined to negotiate. If, however, those same group members are pessimistic (or unsure) about the outcome of legal or political action, they have good reason to explore the possibility of a negotiated settlement.

We can only wonder how carefully Big Corp., Save the Earth, STOP IT!, and the state environmental agency have calculated the likelihood of winning in court (or in the court of public opinion), and whether they have considered the costs associated with achieving victory. Have they really stepped back and made a hard-headed estimate of their BATNA? In our experience, the senior officials at Big Corp. are inclined to view the situation through a legal lens, knowing that if they meet the letter of the law they cannot be turned down. They will likely be following the advice of their lawyers, some of whom stand to benefit financially if the case drags on. Members of STOP IT! will feel relatively powerless and will probably turn to their elected representatives for help in shutting down the facility if something is not done to reduce the risks. They are unlikely to realize that they can negotiate an agreement with Big Corp. that would leave the neighborhood substantially better off. Save the Earth’s leaders are not concerned about the economic or social impacts of shutting down the plant, they are just interested in satisfying their members’ desire to take immediate action to protect the environment. The group is therefore likely to pursue the lawsuit no matter what the chances are of losing; they view negotiations as selling out. State and federal regulators are likely to assume that their job is limited to interpreting the relevant statutes and deciding whether or not the applicant has met the necessary requirements. The idea that these same regulators might take part in a face-to-face conversation (perhaps facilitated by a professional mediator) aimed at meeting everyone’s interests (and certainly exceeding everyone’s BATNA), is not in the forefront of anyone’s mind.

A Better Way of Handling Environmental Disputes

Let’s consider what a negotiated settlement in this case might include, and think about the steps involved in achieving it. We can imagine at least one deal that would allow everyone to come close to meeting their interests at an acceptable cost. Under such an arrangement, Big Corp. would be allowed to expand, but it would have to invest in pollution-prevention technology and change its operations sufficiently to minimize current waste streams and reduce the risks associated with a plant malfunction to a level below that currently mandated by law. In other words, the expanded plant would have to run cleaner than the existing facility (which already meets federal and state requirements).

Extra governmental monitoring arrangements, perhaps involving a nearby university and residents (who would be trained in the technical issues at the company’s expense), would exceed anything the federal or state government is empowered to require. Big Corp. might also offer to underwrite a community-managed fund, perhaps in conjunction with a local hospital or public health agency, to track changes in the health of employees and community members.

Save the Earth would receive a promise of superior environmental performance from Big Corp.—performance exceeding what government regulators have the power to mandate. This promise could take the form of a legally enforceable contract spelling out penalties for noncompliance. Save the Earth would also get credit in a joint press release for having helped Big Corp. find new ways of preventing (rather than just cleaning up) pollution and ensuring that plant workers and residents of Niceville are protected. They might also get Big Corp. to contribute to a local land trust, which would then purchase an ecologically sensitive area near the plant that neither the county nor the state is willing to buy. In return for these gains, Save the Earth would drop its lawsuit.

STOP IT! would receive a promise from Big Corp. that any demonstrable environmental damage that the plant has already caused or might cause in the future (as determined by a scientific committee jointly appointed by Big Corp., the state, Save the Earth, and STOP IT!) would be mitigated or compensated. Also, Big Corp. and the county would promise to insure property values in the area so that homeowners who sold their homes after the expanded plant was in operation would be held harmless if the expansion had an adverse impact on the value of their property (i.e., they would be compensated for any loss in value at the time of subsequent sale).

State, county, and local officials would all be able to claim a share of the credit for bringing the conflict to a successful conclusion in a way that saved the cost of litigation, ensured that legal standards of environmental protection were exceeded (voluntarily), and restored some measure of confidence in government.

Obviously, when all the financial implications of this agreement are tallied, Big Corp. must come out ahead or it should not agree to such a settlement. If the long-term benefit of plant expansion is not greater than the short-term costs implied by the various payments and commitments enumerated above, it might be possible for the county, state, and federal government to provide subsidies or grants to Big Corp. (thereby reducing the company’s cost) on the grounds that new jobs will be created, additional tax revenue will flow from the expansion, the cost of enforcing environmental standards will be reduced in the future (because the company will invest in new pollution-prevention equipment), and a terrific precedent will be set. The lesson of this story is that, by trading across issues that the parties value differently, a package can be constructed that leaves everyone better off than they had a right to expect, given a realistic appraisal of the probable outcome of going to court or continuing to fight it out politically.

Hundreds of agreements of this sort have been worked out around the country. Several are described in detail later in this volume. Every element of this hypothetical agreement has appeared in a real settlement somewhere in the United States. Settlements like this do not emerge full blown from the minds of individual corporate managers or elected officials, however. It takes intensive, face-to-face conversation among all affected parties, usually over several months, in which many options and constraints are considered. Also, it is often necessary for the parties involved to have the help of a professional mediator or facilitator. At the outset, no one trusts anyone else, and everyone works hard to maintain their other options. Over time, though, with the help of the mediator, the various stakeholders work with their constituents and each other to produce a package that exceeds their best estimate of what would happen if they walk away from the table. They do what they can to invent ways of meeting everyone’s interests at the lowest possible cost. They apportion costs and responsibilities in a written agreement, and formulate a detailed implementation plan.

If all goes well, it should be possible to measure the success of such negotiations in three ways. First, the parties themselves should be satisfied that their interests have been met. All stakeholders should feel that they have achieved a better result at a lower cost than what they would have achieved if they had been forced to fight on. Only the parties themselves can make this assessment. Unfortunately, parties are often tempted to compare what they get via a settlement with what they wish would have happened. This is inappropriate, of course. They should, rather, compare the negotiated result with a realistic assessment of their BATNA or walk-away option.

Second, the outcome should be efficient. There are two ways to interpret efficiency. Efficiency might mean that the parties spent less time and money to achieve a specific result than what it would have taken to get that result using any other method. This can only be judged after the fact, and even then it involves a great deal of subjectivity. Measuring efficiency might also involve examining the agreement to see whether it can be embellished in a way that would produce additional gains to one side without leaving anyone else worse off. If not, we can presume that the result is truly efficient (i.e., optimal). It is important to have both an efficient process and an optimal outcome.

The third measure of success is the state of the relationships among the parties after the situation is settled. The parties should be in a better position to deal with their differences in the future as a result of having worked together. (Using more traditional, confrontational approaches, the opposite is usually the case!) The level of trust should have increased. If implementation becomes difficult later on, the parties should be able to reconvene easily, without having to resort to legal challenges or other escalatory moves. Not only the participants, but their organizations and their individual successors, tend to benefit when relationships are enhanced.

The Mutual Gains Approach to Negotiation

In the most general sense, all multiparty, multi-issue negotiations move through four stages: preparation, value creation, value distribution, and follow through (see Figure I.1). Unfortunately, many participants in environmental negotiations begin without doing the proper preparation. Then, they skip over value creation (the steps they can take to make the pie larger) because they are afraid that appearing too cooperative at the outset will be viewed as a sign of weakness. Unfortunately, once a negotiation moves to the third phase—value distribution—it is too late to go back, and the parties are stuck dividing a small pie. Although the third phase is predominantly competitive (gains to one side almost always require losses to others), value distribution can be handled so that relationships are left intact. Usually, though, participants in environmental negotiations seem so intent on getting a big piece of the pie for themselves that they fail to proceed in a way that maintains or builds relationships. Finally, most negotiators spend far too little time clarifying the details of implementation—what might go wrong and how to handle it—before signing an agreement. Once agreements begin to fall apart, it is almost always too late to address these difficulties in a collaborative and productive way.

According to the theory of mutual gains negotiation, a number of things must be done at each of these four stages to ensure the best possible results.

Preparation. The preparation stage begins with an effort by each set of stakeholders to clarify their negotiator’s mandate. Each group or organization needs to estimate its BATNA in the most realistic way possible. Each should also think about its interests, by asking What are our real, underlying concerns, and why? and What are the things we need to accomplish, and in what order of importance do we rank them? This should be followed by an effort to think through the other sides’ likely estimate of their BATNAs and interests. Before the negotiation begins, each party should try to improve its BATNA and clarify its interests. For example, doing some background research, finding technical help, and figuring out a way to generate still another walk away option are all self-help strategies that can be used to improve one’s BATNA. Polling members of the organization, role playing various trade-offs, and imagining the consequences of different outcomes can force a more clear-headed assessment of interests. The preparation stage is not complete until each stakeholder group has tried to formulate a mutually beneficial proposal—one that will meet its own interests well and the likely interests of others tolerably.

e9781610912914_i0003.jpg

Figure I.1

Mutual Gains Approach to Negotiation

© Consensus Building Institute, 1996

Value Creation. Making the proverbial pie larger is not as difficult as many people think. The key, as our colleagues Roger Fisher, Bill Ury, and Bruce Patton have spelled out in their best-selling book, Getting to Yes (1991), is to separate inventing from committing. Even people who are suspicious of each other need to put aside their animosities long enough to brainstorm packages of options that will help everyone do better than walking away. This is in every stakeholder’s interest. Inventing options in this way requires listening carefully, to what others have to say, agreeing to suspend criticism, and investing heavily in option generation without worrying until later about making any commitments. Sometimes a neutral facilitator can help, if the parties cannot do this on their own. The parties may need to adopt a ground rule that says no one has made an implicit commitment when they think out loud about possible options; commitments come later.

Value Distribution. There are all kinds of ideas about how to get the most for yourself when a fixed pie is about to be divided. Some people think the key is to bid high and then trade concessions for concessions. This approach depends on being able to bluff or mislead, however, which undermines trust and works against the goal of building long-term relationships. Instead, as Fisher, Ury, and Patton (1991) suggest, the parties should use objective criteria, or reasons, to explain why they think a particular distribution of value is fair or appropriate. Often, the parties may need the help of a neutral to suggest possible plans for distributing value. Presumably, once all the value is distributed, the parties have reached agreement.

Follow Through. Once a tentative agreement is reached, the parties should think carefully about all the things that might make it difficult to achieve what they have promised. Monitoring arrangements should be discussed, along with penalties for noncompliance. Organizational changes aimed at ensuring that everyone has their internal incentives and control properly aligned should also be reviewed. Dispute handling mechanisms and ways of ensuring ongoing communication should be specified before problems arise.

These are just some of the elements of the mutual gains approach to negotiation that can help parties involved in environmental disputes achieve better agreements. These elements are reviewed in more detail in Part 1 of this volume.

Obstacles to Using the Mutual Gains Approach

Although the theory and methods of mutual gains negotiation have been readily available for more than a decade, most participants in environmental conflicts in the United States continue to seek all-out victory through litigation or political maneuvering. Or, they approach negotiation as a win-lose proposition. This suggests that either the theory of mutual gain is flawed or the obstacles to using it are substantial. Because we have seen so many examples of this approach applied successfully, we reject the former explanation. The latter—the existence of formidable obstacles—is more convincing.

The first obstacle worth noting is the presumption of powerlessness that many parties, particularly community groups, sometimes feel. They assume that large corporations will get their way, so there is no point opposing them, or that regulators do not have the power nor the will to oppose economic growth. So, they hesitate to enter into negotiations of the sort undertaken by Save the Earth and STOP IT!

Linked to the feeling of powerlessness is the sense some groups have that they do not have the skills required to advance their interests. This presumes that groups must represent themselves rather than hire agents to negotiate on their behalf. This is not true. Groups are often well-advised to secure legal assistance. Similarly, some would do well to hire negotiators to represent them (Mnookin and Susskind, in press). Also, organizations sometimes fail to realize that they have skilled negotiators within their ranks, even though these may not be the elected or appointed officers in those organizations.

Another obstacle is the failure of leadership. Some heads of organizations, particularly elected or appointed officials in the public sector, presume that any willingness to negotiate will be read as a sign of weakness. The concept of facilitative leadership—in which leaders achieve success by unleashing the full capacity of an organization rather than doing all the work themselves—has not yet permeated all quarters of society (Schwarz, 1994). The notion that a leader can help a group meet its interests by negotiating effectively on its behalf (as opposed to hanging tough and risking everything on a court case) is still not widely understood. Furthermore, competition within an organization can work against the search for negotiated solutions. A person who wants to unseat a current leader is likely to claim that the leader’s willingness to negotiate is an indication of weakness and a sign that change at the top is needed. Thus, the pressure to play to an internal audience sometimes gets in the way of an effective settlement negotiation.

Still another obstacle to the use of mutual gains techniques is the way the press covers public conflicts. Typical newspaper, television, and radio coverage almost always suggests that there are good guys and bad guys. That is, one side is portrayed as doing the right thing, and their opponents, by implication, are doing the wrong thing. Rarely do the media provide sufficient background information for the public to make up its own mind about the claims on all sides. Furthermore, the media refuse to play the educative role many of us would like them to accept, settling instead for reporting the news as their only responsibility. Settlement negotiations are sometimes covered by the press at the outset, as part of a portrayal of the conflict. But reporters and editors rarely consider ongoing negotiations to be news (Kunde, 1999). Thus, it is not surprising when groups in conflict see little or no reason to sit down together to work out their differences; even if they succeed, it will not be news, and no one will get credit for having done the right thing.

In the absence of any formal rules of the game, a great many parties are uneasy about the prospect of entering negotiations. To some, the time spent trying to find agreement seems wasted. They are particularly annoyed when others want to spend time on process issues, or negotiations over how the negotiations will proceed. If mutual gains-style negotiations were more common, parties could move more quickly to deal directly with the substance of their disagreements. As it is now, a great deal of time must be spent working out ground rules and clarifying how informally negotiated agreements will relate to other decision-making processes. Until the rules of the new game are fully understood, it will be necessary to make up-front investments of time to clarify how negotiations will proceed.

Another key obstacle is opposition from the legal field. Some attorneys graduated from law school before negotiation (or alternative dispute resolution, as it is now commonly called) was the popular elective it is today. So, they are uninformed. If this were the primary obstacle, however, it would soon be remedied, given the requirement of continuing legal education. In our experience, the problem is more pernicious. Some members of the bar apparently believe it is in their best interest to encourage litigation, even when the interests of their clients would be better served by a settlement. When we encounter parties to environmental disputes who are hesitant to come to the negotiation table, they have usually been told by counsel that if they participate in a negotiation they might compromise their chances of winning in court. The presumption is that if they reveal their true interests (what they would be willing to accept) in an informal context, this will put them at a disadvantage if the case goes forward. Putting aside the fact that the rules of evidence do not allow settlement offers to be cited in subsequent trials, it is not clear how clarifying one’s interests can ever lead to an inferior outcome. Each party always retains the right to say no to any settlement it does not like, for whatever reasons. How can anyone expect to achieve their goals if they will not reveal to their negotiating partners what they want to accomplish?

The confusion, we believe, grows out of a failure to distinguish interests (underlying needs and concerns) from positions (stated demands), as Fisher, Ury, and Patton have so elegantly shown (1991). If we presumed that negotiation involved primarily an exchange of positions, then yes, it would be a mistake to reveal the minimal amount we would accept. The negotiation would move quickly to that level. However, we believe that the goal of negotiation is to help all sides exceed their BATNA by the greatest amount possible. The way to do this is to trade across interests that the parties value differently. Thus, it is crucial for each side to have a clear picture of the other’s rank-ordered interests. Then, if one side can give something to its opponents (at low cost) and get something it values highly in return (at low cost to the other), value can be created and agreement will be much easier to reach.

If one is going to court, it should be because all other strategies have failed, or because there is a larger objective, like setting a legal precedent. It is not possible to know whether a settlement can be achieved if a party refuses to enter into good-faith negotiations. We can only assume that some lawyers put their own interests ahead of the interests of their clients when they advise them not to participate in settlement negotiations.

Ways to Overcome These Obstacles

Despite these obstacles, the mutual gains approach has been used countless times to achieve better environmental agreements. This section describes the keys to overcoming the most difficult obstacles.

The Help of Professional Neutrals

The number of professional mediators and facilitators with the background and skills needed to help parties settle environmental disputes continues to grow. Indeed, the roster of individuals providing this service on a full-time basis is expanding at a rate of more than 50 per year (Martindale-Hubbell, 1997). The EPA and more than a dozen state offices of dispute resolution maintain rosters of experienced environmental mediators. The quarterly newspaper CONSENSUS, published by the MIT-Harvard Public Disputes Program, carries a regional listing of more than 60 organizations in North America that provide environmental mediation services on a full-time basis (see the Mediation /Facilitation Resources list at the back of this volume). The availability of qualified individuals does not mean that it is easy to match up the right facilitator with the needs of a particular conflict situation, of course. This requires careful thought and consideration, particularly on the part of the convenor (the stakeholding agency or organization willing to raise the possibility of using a mediator and able to host a consensus building process).

Professional neutrals can offer specialized assistance at each stage of a negotiation or dispute resolution process. Table 1.1 enumerates the range of tasks that facilitators and mediators can be called upon to play.

Table 1.1. Tasks of the Mediator: Breaking the Impasse

Source: In Breaking the Impasse: Consensual Approaches to Revolving Public Disputes. New York: Basic Books.

Training

The participants in environmental disputes have many opportunities to acquire additional skills and understanding about the mutual gains approach to negotiation and its application to their situation. Dozens of university-based groups and independent training organizations offer general courses as well as specially tailored on-site programs. Most of the important concepts and methods can be explained in a two-day period; longer courses offer opportunities to practice what has been learned in a variety of simulated settings.

One of the most effective forms of training is a tailored program designed for all the participants in an actual negotiation situation (joint training). By learning the vocabulary and techniques of mutual gains negotiation in the same place at the same time, stakeholders can move a negotiation process forward much more quickly. When negotiators know that the others at the table are operating on the same assumptions they are, they are better able to understand what is happening and to proceed effectively.

Agreement About Ground Rules

Ground rules are mutually agreed-upon guidelines that help parties work together efficiently. Ground rules usually include behavioral guidelines (such as Disagree without being disagreeable), process rules (such as No agreement will be sought on any item in a package until all the items have been discussed by the group), and a detailed description of roles and responsibilities (such as Alternates may be recognized to speak even when the primary participants are present). Several examples of such ground rules can be viewed on the Web page of the nonprofit Consensus Building Institute (www.cbi-web.org). The sooner ground rules can be agreed upon, the more quickly a negotiation can be launched.

To help parties develop ground rules appropriate to their situation, a mediator or facilitator can prepare a pre-negotiation conflict assessment. Such an assessment is based on confidential interviews with the key stakeholders and usually produces a written summary spelling out suggested ground rules, an agenda, work plan, budget, and a recommendation on whether or not to proceed (Susskind and Thomas-Larmer, 1999).

Redefinition of the Functions of Leadership

As mentioned previously, the likelihood of reaching a negotiated settlement in many environmental disputes is often a function of the attitudes of various elected and appointed leaders—in the public sector, the corporate arena, and in the world of nonprofit action groups. Too many leaders have not yet learned that looking strong is not nearly as important as producing results for their constituents. Once they learn of the many benefits of facilitative leadership, they are more likely to adopt a mutual gains approach to negotiation (and, more important, be able to sell it to their members) (Schwarz, 1994).

Tapping New Sources of Power

There are many sources of power in a negotiation. Community groups, who often feel powerless, can form coalitions that have a combined leverage that exceeds the political strength that any one group would have on its own. They can also justify their claims with reference to a principle (such as fairness requires that risk be distributed equally, regardless of income or class), thereby increasing their bargaining power. When they appeal to principle, their strength is not merely a function of their political clout. Community groups can also create power by proposing an elegant solution (of the sort we describe in the Big Corp. case). By finding and suggesting an ingenious way of meeting the interests of all stakeholders, a community group can gain disproportionate leverage in an environmental settlement negotiation.

Adoption of New Norms

The federal government has enacted legislation calling on every federal agency to take a variety of steps to ensure that disputes in which they are involved are settled as quickly and effectively as possible. The Administrative Dispute Resolution Act of 1990 spells out the reasons for using a negotiated approach to settling a range of public disputes. Because of this legislation, a number of federal agencies have made substantial changes in the ways in which they deal with administrative and legal challenges to their activities (Susskind, Babbitt, and Segal, 1993). Similarly, quite a few states have or are considering enacting parallel legislation. All of this suggests that new norms are beginning to take