Resource-Based Dispute Management: A Guide for the Environmental Dispute Manager

By Larry Long

The Resource-Based Dispute Management System concept proposes a management system that sequences the particular natural resource with cultural diversities to broaden the individuals perspectives within the negotiation and mediation processes.

• Language: English
• Publisher: AuthorHouse
• Release date: Jun 5, 2015
• ISBN: 9781504908948

Larry Long

Larry Long has served in ministry forty years, having been supernaturally delivered from alcohol at a church healing service. His world had gone from light to dark, from Sunday School to “Jungle School.” A spiritual fuse had blown as a result of his service in Vietnam.

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© 2015 Larry Long. All rights reserved.

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Published by AuthorHouse 05/28/2015

ISBN: 978-1-5049-0893-1 (sc)

ISBN: 978-1-5049-0894-8 (e)

Library of Congress Control Number: 2015907267

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FOREWORD

The basic concepts for a Resource-Based mediation management system started as a graduate project during my tenure at the Werner Institute for Dispute Management at Creighton University. Like most graduate projects I started with a simple idea that was developed into a concept, which I then applied to several Environmental Justice (EJ) communities in Southeastern and Southwestern states. The Resource-Based concept evolved over several years and incorporates the fundamentals of different mediation approaches; it is based on the Facilitation Mediation approach. Initially this academic endeavor combined my mediation and, environmental regulatory experiences. I then incorporated an acute knowledge and appreciation of diverse cultures perspectives of environmental and natural resources such that there was a type of natural evolution into a concept that allows for a more balanced systematic approach leading to more successful and sustainable resolutions.

The Resource-Based Dispute Management System concept proposes a management system that sequences the particular natural resource with cultural diversities to broaden the individual’s perspectives within the negotiation and mediation processes. By combining perspectives and processes with systematic evaluative management tools, affords the disputants an ability to objectively create, evaluate and to jointly select resolution scenarios that benefit not only the disputants, but allows for conservation of natural resources and the environment I have created a process that can, if properly applied, provide successful resolutions for protracted natural resource and environmental disputes while providing for conservation of the resource for future generations

The purpose of this book is to introduce a new dispute management system directed toward natural resource and environmental disputes. I have designated the system simply as the Resource-Based system. Resource-Based Management is a conceptual management system that takes into account the differences in negotiation, mediation styles and combined with systematic analytical tools, that allow the disputants to evaluate and select resolution scenarios that provide a greater level of success. Success is defined by the benefit to the disputants while maintaining a high level of conservation for the resource in dispute. It takes into account that not all dispute resolution processes work for all types of disputes. I therefore, introduce systems that are flexible system that the practitioner and/or practitioner’s team can design to fit the needs of the resource, the disputants, that applies within the legal framework of the dispute. The Resource-Based system is a systematic approach for mediators (practitioners) that practice environmental and natural resource management. The Resource-Based system evolved from my working experiences as; an environmental educator, environmental regulator, a hydrologist, and mediator over the past thirty years. The focus of the Resource-Based system is on finding the root causes at dispute.

If applied properly, the Resource-based system has the potential to transform environmental negotiations since it refocuses the self-interest of the disputants by utilizing a balanced systematic approach and places the focus on the root cause(s) of the dispute. The Resource-based system addresses dispute symptoms by integrating these outside issues early in the process and simultaneously analyzing outside issues along with the actual issues at dispute.

The objective of the Resource-Based system is to provide educational opportunities in a technical, historical and regulatory bottom-up conflict prevention process for resolving environmental and natural resource disputes outside of the traditional court system, but within a regulatory and natural resource type management plan as educational tools that provide long term resolution that address the root cause(s) and are truly beneficial to the disputants; the resource and future generations that will manage the resource. This system was designed mainly for large and regional disputes where the issues are technically complex and linked together; where there are a multiple of disputants; that involve protracted interstate and cross-border disputes. Many times protracted disputes evolve in such a way that they require close examination of individual issues accompanied by a systematic approach to evaluate the issues and provide a pathway for successful resolutions.

ACKOWLEDGEMENTS

This book is the product of many years of my personal and professional research in hydrology, environmental and natural resource law, and dispute resolution, for which I hold graduate degrees. Over the years, I have had several professors that allowed me the opportunity to lean and express my ideas. Richard Hawkins (Mr. Curve Numbers) along with Dr. Vincent Lopes, Dr. Charles Gerba, and of course Dr. Gray Wilson, all members of my first Master’s Thesis committee¹, at the University of Arizona. These professors were the first professors that help provide a foundation for which all of my education and experiences to follow are based. I also want to include all of the great professors at Concord Law and The Werner Institute of Dispute Management, at Creighton School of Law. Thank all of you.

ABOUT THE AUTHOR

Larry Long has spent the last thirty-five years working in the environmental field. He is the CEO of International Dispute Management, and has worked in several regulatory programs with the Environmental regulatory agencies. He holds a B.S in Developmental Biology and Biochemistry, and a M.S. in Watershed Hydrology from the University of Arizona, a M.S. in Dispute Management from the Werner Institute at Creighton School of Law, and an E.J.D. in Law from Concord Law School.

Long is recognized as a didactic leader with persuasive mediation and management styles that incorporates dispute resolution technics in team building, and communication, while in a problem solving rich environment that combined federal, state and local governments, tribal, and private sector stakeholders in a collaborative process providing balanced resolutions of natural resources issues. He is recognized by management and his peers for his technical subject matter expertise; in hydrology, water resources, hard-rock and coal mining, environmental impact analysis, transportation and communication, through awards and publications.

An Introduction to Resource-Based

Dispute Management System

CONTENTS

Chapter 1

Introduction

Framing the Issues in Environmental and Resource Disputes

Resource-Based Management and ADR Concept

Communication Proficiency, Approaches and Processes

The Resource Model

Professional Challenges

Mapping the Nexus

Economic Analysis and Opportunities

Community and Environmental Justice (EJ) Awareness

The confluence of Science, Policy and the Law

Chapter 2

Resource-Based Management

Defining Success

Mediation Approaches

ADR Concept

Formal & Informal ADR Processes

Formal Forms

Informal Forms

Informal Processes

Chapter 3

Communication Proficiency & Processes

Communications Proficiency

Systematic Evaluation Process

Decision Making Processes

Systematic Resource Issue Mapping

Developing a Resource Issue Map

Matrix

Models

Objective Criteria

Creating Resolution Scenarios

Linking Objective Criteria

Strategic Planning

Collaboration and Strategic Planning

Psychology of trust

Confidence Building

Trust Building

The Collaborative Exercise

Negotiation Styles

Chapter 4

The Resource-Based Process Model

THE RESOURCE-BASED MODEL

Establishing Resource Objective Criteria

Economics

Preparation

Establishing the Resource-Based Model

Resource Properties

Legal Considerations

Economic Factors

Disputant Interests

Conducting the Mediation and Reaching an Agreement

Conflict Prevention

Chapter 5

Professional Challenges, Hurdles and Pitfalls

The Role of the Practitioner

Process Design

Strategy

Ripeness

Confidentiality

Neutrality

Beyond Neutrality

Transparency, Sunshine and Open Meetings Laws

Ethics

Power and Positioning

Chapter 6

Mapping out the Nexus

Public Trust Doctrine

Water Rights and the Clean Water Act

Riparian Doctrine

Prior Appropriations

Equitable Apportionment

Clean Water Act Sections

Other Environmental Regulations

Transparency and Decision Making

NEPA

Identifying the Problem(s) using NEPA Processes

List of Alternatives and Reasonable Solutions

Exploring and Eliminating Alternatives

Mitigation Factors

Resource Based

Establishing Legal and Resource Nexus

Chapter 7

Resource Economics Challenges and Opportunities

Resource Economics & Market Systems Tools

Supply & Demand and Cost-benefit analysis

Zero-Sum

Do natural resources have power?

Market Forces

Market Incentives

Information Disclosure

Resource Credits/Banking

Proposed Wetland Banking System

Conservation and Peace Park Concepts

Chapter 8

Introduction to Community and Resource-based Systems

Framing Resource-Based System and Community Issues

Next Steps

CHAPTER 1

Introduction

Since the beginning of time disputes have been a controlling factor of human life with many ending in violence. Dispute mediation has also been a factor of life due to the need to resolve these disputes. As humans evolved they learned quickly to deal with disputes in a manner that served their own special interest. We are often told that we live by the golden rule; which was, by most account as early as 551 B.C., a Confucianism maxim, to define a two-way relationship of equal treatment². But today the general translation is He with the gold makes the rule, or we commonly refer to the phrase only the strong survive, indicating a win-lose type resolution, with success or the spoils going to the victor. How we deal with disputes demonstrate how we as a people have evolved over time, and how we as a community, a country, or how humans globally have evolved to resolve our issues through a peaceful and equal balanced process. With the rising number of global conflicts and acts of terrorism it might be hard to believe that we as a people have evolved.

It is said the Romans believed that to live in peace one must prepare for war³. This type of self-preservation did not necessarily provide well for the Roman Empire, but does reflect on the cultural power structure of that time in history, as well as in cultures today. Many cultures, governments, and individuals still live with this mindset. This level of thought clearly represents a mindset that has its weaknesses, such that one is always repairing for war and never really has the time to live in peace. Living in a country with the world’s largest military and where the budget to support that military, has great impacts on our everyday lives this issue becomes very relevant. We all want to live in peace, but at what cost?

If we look around us throughout the world the Roman mindset is clearly represented in almost very thing we do, and is clearly demonstrated in most countries foreign policy, as well as the way we view our global and national natural resources. To some extent where the area has been locked in bitter battles for hundreds of years the Roman mindset may be deemed necessary and become the politic of fear, and fear is a very strong tool of persuasion.

This mindset of fear is also very obvious in many resource disputes where the interest-based system is used to resolve the issues and provide resolution based on those perceived needs. To reverse this type of thought patterns is extremely difficult because everyone wants their slice of the global pie⁴. Given this how might a practitioner propose to resolve a dispute where the disputants have a history of self-preservation and no clear sight for the future conservation of the resource? That my friend is the trillion dollar question and this book will only try to analyze one very small slice of this global pie, and that is the natural resource question, after all, outside of religion, natural resources are a major cause of war even in the twenty-first century. All countries seek to protect or lets’ say cover their assets. Politicians generally speak of the need to protect national interests.

The traditional method for solving disputes in a civilized society outside of war is by litigation through the courts. The learned people of the courts may only provide solutions based on law that is available to them and that only lead to a monetary type of settlement. We may not always agree on the decisions handed down by the courts, but that is the process that most civilized countries follow for resolving disputes. Overloading of the courts and the need for a more cost efficient alternative is clear as the courts and society turn to alternatives to the courts.

The intent of this book is to provide the legal and scientific environmental and resource dispute mediator (practitioner) with a process to develop a resource management approach that is specifically designed and constructed for a mediation team. The members of the mediation team must not only possess the necessary mediation skills such as issue spotting and conflict prevention technics, they must also be able to communicate technical issues to the disputants using mathematical models, legal cases studies, and regulatory requirements to help create resolutions that are balanced and focus on the root causes specific to the environmental or resource dispute at hand.

To construct this team we need to address what and how the different professional disciplines contribute to the process and how they communicate. We also need to define the critical terms such as success. Several process and technical terms are defined throughout the book. Various scientific and legal disciplines do communicate their definition of success differently. Therefore, the expectation level of success is measured in different ways. Where engineers and scientists communicate using a quantitative approach and speak in terms of statistical analysis, legal professional communicate with the intent of providing their clients with the best possible settlements generally based on a monetary standard. The achievement of an agreement can be perceived as success in most types of disputes. Success for the purpose of the resource-based management process is more than a mere agreement or monetary award. Success in a resource-based management system is based on the conservation of the resource, as well as, the continual beneficial use of that resource.

Many scientists also convey their ideology based on observation. Regulators and attorneys frame their communication based on regulation and a logical legal argument. The overall objective of all disciplines should be to find the true or root cause of the dispute, unfortunately this is seldom reality. The role of the practitioner is to combine all of the different ideologies and communicate that information in a process that is easy for the disputants to understand. Success for natural resource disputes should be defined as; a lasting resolution that addresses all parties concerns and provides resources based on the limitation of that resource for current and future generations. Success in most mediation is the signing of an agreement and is more symbolic than it is subjective. That is why we see litigation many time after the agreement is signed.

Frequently the litigation is brought by the original disputants or by third or fourth party disputants that were not considered in the mediation process and were damaged from the agreement of the original disputants. This establishes that insufficient research and consideration for third and fourth party’s harm went into the original agreement, if considered at all. Natural resources do not exist as closed ecological systems and do not exist in a vacuum. Dispute agreement for environmental and natural resources that only addresses the perceived needs of the disputants, without taking into consideration how that agreement might impact the surrounding environment, is constructed in a vacuum.

To provide the necessary information the team needs to go on a fact finding mission. Our goal here is to find the root cause(s). In the legal arena there are rules for compulsory discovery, which uses interrogatories, depositions, request for admission and request for production to obtain such information. It should be noted that attorneys are taught to provide the best case for their clients, not necessarily the best resolution to a dispute and seldom a resolution that meets the criteria for a successful and lasting resolution that takes into consideration conservation of the resource. The attorneys based their research on providing documentation that supports their client’s self-interest claims. The legal practitioner seeks to discover the history and the potential causes of the dispute based on state and federal resource laws, to better position her client’s position. This type of resolution is temporal at best and at worst destroys the resource, baring future generations’ access to that resource.

In scientific terms the practitioner must look at the anatomy of the dispute, to the benefit of the patient. The practitioner must examine the dispute much like a doctor examines a patient with a recurring ailment such as, an ulcer. I use the case of an ulcer as a metaphor with an overlap with reality, because most people can relate to the discomfort associated with an ulcer and in fact the stress created by disputes are very capable of causing ulcers both physically and socially.

I do believe that many disputes function much like an ulcer on society. Many times I have discovered that a dispute is much like an ulcer that eats away at all parties and can cause great discomfort only to go away in a few weeks, but then return later and sometime several times later creating greater harm while the parties are driven further and further apart, over and over again. The patient may succumbs to the ulcer unless the doctor can find the true root cause or causes of the ulcer.

Many times there are more than just one issues associated with the root cause, and many time the causes are complex based in local beliefs after years of mistrust. Much like many resource mediations, if at first the doctors and practitioners treat the symptoms this can make both parties happy for a short time, only to find that the problem keeps returning. It is the practitioner’s role to be able to separate out the symptoms of a dispute from the root causes, only then may all parties involved be able to start work on finding an acceptable resolution. We need to find methodology that not only seeks to discover the history and the anatomy of the ulcerating dispute, but to do so for the betterment of all disputants, for society, and the resource as a whole.

Again history will demonstrate the complexity involved in what might be termed a simple dispute, although my experience has shown that there is no such thing as a simple dispute. All disputes have their own anatomy and evolution and the smallest issue can over time lead to a major or protracted dispute. By combining the legal and scientific fields together the practitioner’s team will provide a holistic approach to resolving environmental and natural resource disputes.

This book proposes to work toward that end and to introduce a concept that serves not only the disputants but society and the environment as a whole, using legal, scientific, and political methodologies to discover the root cause and allow the disputant to arrive at a mutually beneficial resolution that serves not only the disputant but the needs of society and the future needs of natural resources.

Today’s environmental mediation practitioner is faced with an ever increasing demand for negotiation skills that require expert knowledge in the disciplines of policy, science and economics, while maintaining issue spotting and other skills associated with ADR. Skill sets that encompass policy, economic management, and is coupled with an expertise in negotiation techniques that go beyond the traditional interest-based and right-based systems are needed to provide for more balanced technical resolutions that will have positive impacts and provide that resource for future generation.

Traditionally, the practitioner served to help provide solutions based on the perceived needs of the disputants without regards to the resource’s limitations. These skill sets are needed for both national and international and Environmental Negotiations. Without the necessary skills sets the practitioner can be presented with the dilemma of serving the needs of the disputants and by knowingly ignoring the natural resource for which the dispute had originated create more complicated disputes in the future. International disputes do show a growing trend in the conservation of nature resources though the use of Peace Park type projects⁵. Disputes involving natural resources require expert knowledge in the discipline of the natural resource and specialized mediation skill sets in which they negotiates not only for a win-win resolution for the disputants, but also focuses on imbalances between natural resource consumption of the natural resource for which the dispute is centered upon. The balanced solution requires that the solution meet the needs of the current disputants as well as, future needs of that resource. Many negotiations are deemed successful only on the bases of what was achieved or gained by the disputing parties, inferring that the natural resource for which the negotiations are about has an infinite source, or that the resource has less value than the needs of the disputants, which we all know, is not true.

Considering our current political and economic situations while taking into account our dwindling global natural resources, if you had to predict what the world would look in fifty years, what would you envision? Would the world communities be living in peace advancing through collaborative processes that allowed equal sharing of our technical knowledge of science natural resources and thereby advancing our global society, or would the world be locked in an unwinnable global chess match over power and natural resources in a type of energy and natural resource cold war scenario full of conflict? Will we still be living the way of the Romans thinking that to live in peace we must prepare for war? The end of the first cold war was symbolized by the fall of the Berlin Wall and was believed to indicated to all that a global nuclear destruction was no more. People all over the world rejoiced thinking that this could possibly be the end of global conflict and that we would begin a new era of peace.

Unfortunately, since the fall of the Berlin Wall, the world has experienced an escalation of global conflicts with many of these conflict directly linked to the change in the balance of power and to the shortages of energy and natural resources⁶. In the natural resources arena many of these conflicts are the results of direct or indirect disputes enhanced by global climate change with increased demands for natural resources such as water. The crisis in Somalia is believed to have originated from years of drought and the drought was brought about by changing global weather patterns. Without a greater understanding of global climate change we may find ourselves in a world with a disproportional distribution of natural resources, it is understandable that global conflict could very well continue to increase based on the shortages of natural resource.

If we stay on our present course of self-interest and disregarding the environmental factors while only focusing on the economic factors, global conflict has the potential to be a major part of our history much like the escalation of nuclear arm during the first cold war. Practitioners must use their skills in conflict prevention to identify and educate those in power to resolve foreseeable natural resource and energy conflicts before they escalate. This is no easy task as I will point out some the major issues in this book.

More emphases must be placed on the natural resources themselves with a greater understanding of how they relate to global economy and the limitations of the natural resources. Economic factors will greatly influence how these resources will be distributed. The economic model that has the greatest promise is the free-market. A free-market system is loosely defined as an economic system that is free from government regulations. True free market system tends to rise and fall based on supply and demand. This is the system that most of learned about in college Economics 101. However, all market systems are regulated to some extent, therefore what we are really experiencing is economic distortion. "Economic distortions arise because there really is no free markets operating