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Public Involvement Network News
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What is Alternative Dispute Resolution?
Laura Bachle, CPRC staff
“Alternative to what?”
That’s the question I usually get when asked about the kind of work I do. In answering this fundamental question, I usually tell a story I first heard from a colleague about a farmer and a motorcycle rider.
Scene 1: Seems this young chap was buzzing along in his Harley one day on one of our rural byways when he accidentally struck and killed a chicken. The farmer, standing right by the side of the road, rushes out, shaking his pitchfork and yelling. The motorcyclist and the farmer exchange some heated words.
How many people are involved in this dispute? Two. (Three if you count the chicken.)
The local sheriff, who happens to be in the vicinity as well, rushes up and separates the two parties, anticipating that they are about to come to blows. He talks to each person separately, issues the motorcyclist a ticket, and they all leave the scene.
How many people? Three
Scene 2: The farmer calls his lawyer. The motorcyclist calls his lawyer. The lawyers file suit.
How many people now? Four.
Scene 3: A Year Later: The case is going to trial. There’s a judge, a jury, the lawyers, the farmer, his wife and relatives (plus the grieving chicken clan), the motorcyclists, his motorcycle club, the sheriff, plus various and sundry experts.
How many people are involved in this dispute now? Well, at least 17 (12 jurors, 2 lawyers, the judge, the farmer and the motorcyclist).
What happened to the dispute? It escalated way out of control of the farmer and the motorcyclists. Look at all the people who have gotten between the farmer and the motorcyclist. The dispute is no longer theirs to resolve. They can’t, even if they wanted to…..
Ok, so now let’s re-play the first scene….but this time, let’s have the sheriff recommend mediation. Here’s the definition of mediation from EPA’s Conflict Prevention and Resolution Center’s web site: (https://www.epa.gov/adr)
“Mediation is a process in which a neutral third party (the mediator) assists disputants in reaching a mutually satisfying settlement of their differences. Mediation is voluntary, informal, and confidential. The mediator helps the disputants to communicate clearly, to listen carefully, and to consider creative ways for reaching resolution. The mediator makes no judgments about the people or the conflict, and issues no decision. Any agreement that is reached must satisfy all the disputants. “
Farmer Joe and Bill the biker go to the local Community Mediation Center. They get a mediator. The mediator helps them talk to each other directly. They resolve the issue. Bill apologizes. They embrace…turns out the farmer is a long lost relative….all is better than before!!!!
How many people are involved in this dispute now? Three (really two, because the mediator is just there to help the other two talk to each other, right?)
So Alternative Dispute Resolution (ADR), in its original sense, referred to methods of resolving disputes as an alternative to the traditional legal system. The Federal Government has memorialized a definition of ADR in the Administrative Dispute Resolution Act of 1996 (https://www.epa.gov/adr/adra.pdf) (PDF, 12 pp, 38 K) as: "any procedure that is used to resolve issues in controversy, including but not limited to, conciliation, facilitation, mediation, fact finding, minitrials, arbitration, and use of ombuds, or any combination thereof." 5 USC 571(3).
All these ADR techniques involve a neutral third party, a person who assists others in designing and conducting a process for reaching agreement, if possible. In essence, all a neutral third party really does is create a “safe place” for a difficult conversation. The neutral third party has no stake in the substantive outcome of the process. Typically, all aspects of ADR are voluntary, including the decision to participate, the type of process used, and the content of any final agreement.
Ok, but the problems I work on rarely involve chickens…you say. You are right. Unlike the example above, the conflicts that we see in the environmental arena are far more complex, and the people directly involved or affected are far more numerous. We deal with complex, multiparty and multi-issue situations, often ones in which both the facts are in dispute AND the parties are in conflict. We have adopted the term environmental conflict resolution to capture the type of public policy ADR practice used at EPA.
Environmental Conflict Resolution (ECR) is also neutral-assisted, and includes things like: conflict prevention, convening or situation assessments, and facilitation. (For a more detailed explanation of ECR, please refer to the Office of Management and Budget and President’s Council on Environmental Quality’s Memorandum on Environmental Conflict Resolution(http://www.ecr.gov/n_pos200512.htm)
Sometimes it is possible to prevent disputes before they occur, by creating and strengthening communication among stakeholders regarding substantive issues, how stakeholders interact and relationships among stakeholders. Use of third parties to engage in public participation process design, team building and coaching can assist in preventing conflict.
Convening (also called situation assessment - see related article) involves the use of a neutral third party to help assess the causes of the conflict, to identify the persons or entities that would be affected by the outcome of the conflict, and to help these parties consider the best way (for example, mediation, consensus-building or a lawsuit) for them to deal with the conflict. The convener may also help get the parties ready for participation in a dispute resolution process by providing education to the parties on what the selected process will be like.
Facilitation is a process used to help a group of people or parties have constructive discussions about complex, or potentially controversial issues. The facilitator provides assistance by helping the parties set ground rules for these discussions, promoting effective communication, eliciting creative options, and keeping the group focused and on track. Facilitation can be used even where parties have not yet agreed to attempt to resolve a conflict.
Can’t you resolve environmental conflict without a third-party neutral? Of course you can! The farmer and the motorcycle rider would have been much better off if they had engaged in principled negotiation or collaborative problem-solving from the very beginning, but since that’s not Alternative Dispute Resolution, we will have to leave it for another article.