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Note: EPA no longer updates this information, but it may be useful as a reference or resource.

Deciding on the Appropriate Process for Preventing or Resolving Conflicts

Joanne Dea and Deborah Dalton, CPRC staff
Imagine these situations:
In each of the following situations you are faced with parties or members of the public who have opinions, ideas or information useful to you in doing your job to protect public health and the environment. 

1.  You are a HQ person assigned to write a rule on the control of tri-ethyl whatchamacallit and while you have boxes of information on the chemical you are experiencing a lot of conflicting information from stakeholders on the practicality, costs of controlling the chemical and on risks the chemical poses to humans and wildlife.  How can you understand better the information and opinions of stakeholders in order to write a rule that will not be challenged in court?

2.  You are a regional person assigned to write a permit for a facility releasing di-methyl chickenwire.  You know from the local media that the local residents and chamber of commerce have a variety of opinions about the control measures proposed by the company in the permit application.  How can you write a permit that will not be subject to challenge?

3.  You are a regional manager who has to attend the next meeting on a local land cleanup or restoration project and you know the local stakeholders have a wide variety of ardently held opinions and that national stakeholders also are interested in precedents that might be set at the site.  How can you approach the design of the meeting in order to hear all of the stakeholders and see where there might be converging interests?

4.  You are a regional enforcement attorney or case officer who has notified a company in your area of a major violation.  The company disagrees with both the characterization of the violation and the amount of penalties to be assessed and is willing to engage in time consuming litigation before undertaking measures to deal with the problem.  How can you more successfully engage the company so that mitigation of the pollution can take place at the earliest possible time?

You may spend hundreds of hours on this rule, case or project and, just like you plan out the steps for accomplishing the scientific, technical, economic, or policy elements of the project, you can plan in advance whether and how stakeholders can be incorporated in your project or case.

Best practices (http://www.iap2.org, http://www.acrnet.org) Exit EPA Disclaimersuggest that involving the stakeholders in the planning and choice of consultation or collaboration efforts results in a process that is more satisfying to all involved and contributes to a higher likelihood of success of the project itself. 

How could you involve the stakeholders in deciding whether, when and what kind of consultation or collaboration process EPA undertakes?  One possible answer is to conduct a situation assessment.   In each of these situations you could use an experienced facilitator or mediator to conduct a situation assessment and to make expert recommendations about how to design an appropriate consultation, collaboration or dispute resolution process.

What is a situation assessment?   

A situation assessment is an informal study process used to determine whether an issue is ready for involving stakeholders and if so, what the goals, design and timing of the stakeholder process might look like, for instance a series of public meetings, a Federal Advisory Committee or a negotiation. 

Conducting a situation assessment involves one-on-one or group discussions with affected people or organizations and review of background information suggested by the affected parties to obtain of views and differing perspectives on the about key issues and potential for resolution.  Situation assessments are most informative and comprehensive when discussions with affected stakeholders can be confidential and when issues or statements are not attributed to individuals by name or organization.  

Common practice is to have a “neutral third party” facilitator or mediator conduct the assessment and report the results either in an oral debrief or a written report to the Agency and parties contacted during the assessment.  The advantage of using a neutral for a situation assessment is that each of the affected persons or parties can be frank and candid about their positions and interests - this contributes to the ability of the neutral to make professional recommendations about the feasibility of different types of stakeholder engagement processes. 

Elements of a Situation Assessment:
The person conducting the situation assessment will discuss informally many of the following topics with all appropriate affected parties.  Note that there are differences in the identification of appropriate affected parties between enforcement cases, where it is common practice to involve only the respondent and the Agency, and policy or program decisions, where a wider definition of affected parties is used. 

What are the issues?
Who needs to be involved?
What information needs to be available?
What kinds of interactions are possible between the parties?
What timing issues may be involved in the project?

A situation assessment can take a few hours, in the case of a two party enforcement case, for instance, or can take a hundred hours, in the case of a complex, multiparty case or regulation discussion.  How long it takes depends on the number of parties to be contacted, the complexity of the issues involved, the amount of controversy about the issues and the intensity of the proposed stakeholder process. 

In many cases, the situation assessment is an entirely separate step from the beginning of a stakeholder engagement process; in some cases it may be an evolving and inseparable part of the Agency’s interaction with the parties.  Other names for situation assessment are stakeholder assessment, conflict assessment or mediation assessment.   

What is a neutral third party?

A neutral is an individual who is seen by the Agency and the stakeholders as unbiased or uninvolved with the issues and parties.  A neutral has no real or perceived official, financial or personal involvement or conflict of interest in the situation, unless such interest is fully disclosed in writing to all parties.  It is also essential that the neutral be able to maintain the confidentiality of discussions with the parties.  Anyone that fits this definition can serve as a neutral third party, including someone within an organization that is a party in the issues or an outside professional expert.  Other names for a neutral include facilitator or mediator. 

What is the result of a situation assessment? 

A situation assessment can result in a range of discussions or reports from the neutral: an informal discussion with the parties, a short memo suggesting a design and timeframe or a formal report outlining the assessment process, the findings and the recommendations of the neutral for next steps.  Usually the analysis by the neutral includes an estimate of the willingness and commitment of those interviewed to engage in a stakeholder process and the feasibility of various processes.  It is possible that the neutral will recommend that no stakeholder or ADR process take place.

The decision to proceed with a stakeholder assessment is left in the hands of the Agency and the stakeholders.  Entering into a stakeholder or ADR process must be voluntary and take into account the needs and schedules of all of the participants. 

Note from your Editor

If you are a public/community involvement practitioner beginning a new project, you can use situation assessment to examine the issue or community you will be working with.  Whether you need to involve a third party neutral or do a preliminary analysis on your own, is your call.  If nothing else, this short list of questions will help you think through what you may need to do a good job of involving stakeholders.

Questions (ask the same questions internally and externally)

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