Arbitration/Mediation Pilots? The Westerman Bill and Other Ideas

I think it might be interesting to examine and discuss some of the specific ideas in the Westerman bill. The text of the arbitration section of the Westerman Bill is Title III subtitle B here. I like the idea of pilots- perhaps have two or three approaches and at the end of two years have a bipartisan commission or advisory committee (folks appointed from both parties and all sides of the issue) review how things worked. It seems to be different from the Barrasso bill that we discussed here in 2014, although the legal discussion about arbitration may still be valid.

I like how this process includes both Agriculture and Interior in the pilot, and how the arbitrator has to be approved by each party involved. I particularly like that each intervenor has to put its cards on the table in terms of going with the proposal, or submitting a modified proposal.

Another pilot might be a period of open, transparent public mediation perhaps done through the US Institute for Environmental Conflict Resolution (established by Congress for just these sorts of things). Not only would people have to put their cards on the table (put the public back in public policy) but it would be a great opportunity for science education (e.g., how do you know that this or that will or will not happen)?

Here’s a description of arbitration compared to mediation:

Arbitration and mediation are similar in that they are alternatives to traditional litigation, and sometimes they are used in conjunction with litigation (opposing parties may first try to negotiate, and if that fails, move forward to trial). Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. However, it is common to employ mediation as a non-binding process and arbitration as a binding process. In simpler terms, binding arbitration replaces the trial process with the arbitration process.

Arbitration is generally conducted with a panel of multiple arbitrators who take on a role like that of a judge, make decisions about evidence and give written opinions (which can be binding or non-binding). Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Then, those two arbitrators select a third arbitrator, at which point the dispute is presented to the three chosen arbitrators. Decisions are made by majority vote.

Mediation, on the other hand, is generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion and eventual resolution of the dispute.

Somehow I like the idea of a panel of three arbitrators better than the one in the Westerman bill. Maybe that could be another idea tested in the pilots. Maybe Congress could pick two regions, one in the 9th Circuit and one in the 10th Circuit, and test these approaches on a sample of projects. Maybe a joint advisory group could be developed with folks from differing perspectives to select 20 projects to try each way and report back. Forty projects would not cause ecosystems to collapse nor species to go extinct (the group could even agree on a maximum number of acres treated in the pilot) and we might all learn something.

I bet there are other interesting approaches floating around. There is a group in Australia called PCERA who does this:

Second, PCERA provides a new model for expert determination called Collaborative Expert Resolution. This process involves an independent expert being appointed for each party to undertake an independent informal assessment of the merits of the case. The experts then meet and reach consensus, through a collaborative process, as to the resolution of the dispute on the merits. The assessment may be undertaken on a binding or non-binding basis. The outcome is a form of expert determination process in which the parties can work closely with the assessor appointed to consider their case, ensuring the merits of the case are addressed.

I like the idea of experts being involved in this approach.

7 Comments

  1. I absolutely hope that some of the things in the bill were meant to be bargaining chips. I do think that the totality of this bill is ‘too far, too fast’. The House always proposes all sorts of crazy stuff that the Senate never touches. That’s how they get re-elected. However it works out, we still need full transparency, and the right to comment on projects that affect you.

  2. The “selection criteria” are a biased subset of forest values. The criteria include timber production, fire and insect susceptibility, but the criteria exclude water quality and quantity, forest carbon storage, wildlife population viability, effects on recovery of threatened & endangered species, recreation, etc.

  3. This idea has a lot of merit if it was binding. If it isn’t binding then you haven’t stopped the litigation that has stalled and/or stopped endless projects because one party or the other can’t have their way.

    • That could be something tested in a pilot.. Binding and non-binding…would court cases move faster if they had been arbitrated? Would either party give up on the case after arbitration?

  4. A key difference between arbitration (as described here) and mediation is probably that arbitration would not allow refinement of proposals to reach agreement.

    The bigger problem I see is that this proposal would allow/require an arbitrator to make federal land use decisions based on their own set of biases. I don’t see clear thinking here about the nature of the decision being arbitrated. If it is about a factual conclusion, then independent experts could be useful. If it is about “whether the proposal is consistent with the applicable forest plan, laws, and regulations,” then there are objective criteria for an arbitrator with legal skills to use to do what a court would do. (And does this include the legal requirements of the planning PROCESS?) But if it is about the relative importance of the different selection criteria (e.g. “timber production” vs “habitat diversity”), what is the arbitrator’s basis for making a decision? (It seems like the choice of arbitrator would become critical, with agreement by the parties questionable and leading to the Forest Service picking their best bet to support their decision.)

    • Jon, I think that is confusing.and probably there are a variety of ways to work it. That’s why I think legislation and rulemaking is best done by people figuring out how they want it to work, and then writing the rule or the statute. Then we could go back to another document and ask “how is it that they wanted it to work” “do we agree with that?” and do the words in the reg or statue reflect “how we want it to work?”

      A resident expert has volunteered to write a post about arbitration/mediation and maybe we can learn more when he posts it.

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