Mediation, Arbitration and Collaboration in Natural Resource Decisions: Guest Post by Peter Williams

Many of you may know Peter Williams from his work in the Forest Service on collaboration. Here is a link to what he is currently doing at the Partnership and Community Collaboration Academy. Thanks to him for writing this for our blog (at my request)! Quite a bit to think about here.. thanks again, Peter!

“As the USFS pursues changes in environmental analysis and decision making, matters of decision process are receiving attention, including dispute resolution. There are numerous schools of thought about decision making, dispute resolution, and decision processes. Some of the thinking is very divergent; most people have a limited understanding of the complexity of that thinking, at least outside of academics and lawyers, despite the fact that making decisions is one of the more basic human actions.

When a dispute occurs, arbitration and mediation are often mentioned as tools or techniques to reach agreement with the assistance of a third-party, either a mediator or arbitrator, also called an arbiter. Generally, the basic difference between arbitration and mediation is the decision maker: under arbitration, the arbitrator has the decision authority if the parties fail to reach agreement; under mediation, the parties make the decision and the mediator guides the process. There are exceptions, like with non-binding arbitration, where there is no enforcement of the arbiter’s decision on the parties. With non-binding arbitration, the arbiter still has the decision authority, but the parties are not bound by the decision, which obviously limits the arbiter’s authority.

Both arbitration and mediation are considered “alternative dispute resolution” (ADR) skills or techniques, with the other ADR techniques including collaboration and negotiation. The 1996 Alternative Dispute Resolution Act (ADRA) authorizes federal agencies to use ADR techniques to supplement other dispute resolution methods when the parties agree; yet, it specifically prohibits use of ADR techniques if, among things, other parties not involved in the proceeding may be significantly affected. For this reason, arbitration under ADRA fits poorly with natural resource management planning and public land management planning. Other ADR approaches, however, do fit well.

A collaborative approach is typically consistent with ADR concepts, for example, while also addressing public land management process issues. Public land management decisions are often a particular type of decisions because the scale of the interests can be so large, well beyond the narrower scope of a typical business dispute or administrative dispute involving a relatively small number of parties. For these reasons, a collaborative approach can be a good choice if the process is designed well. For example, a good process design will address the public engagement required under NEPA, the information collection constraints under the Paperwork Reduction Act, and the sunshine requirements under FACA, as well as any other procedural requirements identified during the process design phase.

In addition, a collaborative approach is fundamentally learning-oriented because it is about jointly coming to understand the issue, context, history, and implementation-oriented options. It is a “diagnostic” approach, as opposed to a prescriptive or predictive approach, because a shared understanding emerges from the broader group. Part of the understanding that emerges is about interests, as opposed to positions. In more traditional planning or decision processes, positions stated at the beginning of the process are treated as fixed, with little learning encouraged to reframe positions or to understand the interests underlying those stated positions.

A collaborative approach to a decision can extend into a collaborative approach to implementation as well as to monitoring, evaluation, and other forms of feed-back, all because of the continuous learning aspects of a good collaborative process. Arbitration and mediation, in contrast, tend to be one-off processes during which a narrow set of disputed issues are addressed. In this sense, arbitration and mediation generally remain in the category of adversarial dispute resolution approaches. Collaborative approaches are in a separate category and it can take careful work to move from an adversarial relationship to a more collaborative one, recognizing that even most collaborative efforts still allow for adversarial disputes to be addressed. In other words, one can work in a collaborative way while also recognizing that adversarial disputes can occur. When those happen, though, the foundation of collaboration often allows those disputes to be worked out more quickly and more constructively, often in a way that allows a return to the more generally collaborative approach.

Returning to the larger category of collaborative approaches, there is collaborative planning and collaborative decision making, as well as collaborative learning and collaborative evaluation or assessment. All of these are related and readily integrated.

11 thoughts on “Mediation, Arbitration and Collaboration in Natural Resource Decisions: Guest Post by Peter Williams”

  1. If interested, I revised this initial piece with some additional depth and posted it on the Academy blog. There, I’ve distinguished between collaboration and other ADR approaches, like mediation and arbitration. One of the key ideas is that there are some good reasons why a collaborative approach can be a more natural fit for conservation and public land management efforts.

    Thanks, Sharon, for the invitation to put these ideas into play here. I look forward to seeing what might have traction.


    • Thanks, Peter, I like the second one as well. What I thought was particularly interesting was the idea that when a conflict arises during collaboration, that folks could switch to mediation for that one topic and then flip back.

      Also could you elaborate on “ADR techniques to supplement other dispute resolution methods when the parties agree; yet, it specifically prohibits use of ADR techniques if, among things, other parties not involved in the proceeding may be significantly affected.”

      I don’t think that I quite get the mechanics here..
      My interest would be in requiring mediation prior to litigation (perhaps through legislation) with the mediation sessions being public documents, in the interest of transparency. Wouldn’t it be possible to get “all the parties significantly affected” (aka the usual suspects) together? Why would the law as stated affect arbitration and not mediation? Can you have the same number of interests involved in either arbritration or mediation?

  2. Great questions and ones that need attention for sure. The quote you cite is based on language in the ADRA law. What the law is encouraging is “Administrative Dispute Resolution” using mediation, negotiation, arbitration, or collaboration (the four alternative dispute resolution methods mentioned in ADRA) to supplement other, often more formal dispute resolution methods, like traditional adversarial proceedings (trials, hearings, and such). That goes to that first point that resonated with you about switching to mediation for some issue and then moving back into the main collaborative process.

    At the same time, the other part of the quote is because the law discourages use of ADR techniques if, among several listed reasons, “(4) the matter significantly affects persons or organizations who are not parties to the proceeding.” The controlling language is “…shall consider not using…”, which is strong, but short of a requirement or mandate. I realize I overstated it in my guest post here, but the Academy version has it right.

    My sense is this goes to your other questions about arbitration and mediation. Technically, formal binding arbitration might be difficult to make work in a public land management situation, but that’s really a question of law and whether an arbiter could bind a federal agency to the arbiter’s decision. That is why mediation or non-binding arbitration might be a better fit, yet it seems we still need to consider whether all the affected parties could participate. There’s also, I imagine, a need to avoid inconsistent results across a single agency or issue. That could be a heavy lift for any mediator or arbiter.

    Maybe a scenario could help us think this through. If, for example, a federal agency enters mediation with even a fair number of the usual suspects, to borrow the phrase, I would wonder how that process would reflect the interests of others who might not be in the room. My guess is the process could be open to criticism as being “procedurally unjust,” inequitable, or just plain unfair. But, it also could be legally vulnerable to a standings-based appeal where a person or organization with standing could succeed in appealing the mediated outcome. Moreover, in a sense, all this could be moot because, once you have all the usual suspects and anyone else engaged who has standing and interest, it seems you’re pretty much working in the area of collaboration using the skills of mediation, negotiation, and facilitation, among others.

    Having said all this, you have me wondering about a possible role for mediation and arbitration (non-binding, presumably) in a collaborative process. Some role has always seemed possible and even useful. Yet, clarifying what that might look like is tough because the mediator and arbiter would need to protect the integrity of the overarching collaborative process. I’ve tended to make this issue what I call a “design criteria” for the overall process. When the possibility is clear, I ask the entire set of participants to weigh-in on what an appropriate, fair, and equitable role for mediation might look like if it were to become needed.

    Perhaps there are better ways to do it, but I like the transparency of that approach. What I really like, though, is that there’s nothing today that would prevent timely use of mediation as part of a collaborative process. A legislated fix could help, but it also could create a new set of issues, ones hard to anticipate.

    Read more:

    • It seems to me that meetings about objections and appeals are a bit like mediation without the 3rd party. So there is a track record of people trying to find common ground that could be used to build a legislative fix that may work.
      Also there is a history of required mediation in court proceedings that could be drawn upon.

      But most importantly for me, the public would get to see the reasonableness of each party (feds and litigators) and what they really want would become more transparent outside the language of ” you didn’t do NEPA and ESA right” which comes down to “we don’t want this project.” The sooner you get to “is there an acceptable redesign that the rest of the collaborative group will support” the better, and then you can go into the litigation cone of silence and the deal that is done behind closed doors.

      Reading the results of the mediation efforts might well impact the views of the judge toward the parties, albeit subconsciously.

      • Yes, there’s a tremendous history of mediation in court proceedings and the Lexology article about the history of mediation in Europe is a nice summary. A concern to consider is whether mediation is sufficiently the same in a court proceedings and in a public land management planning or policy process. One difference probably would be the number of parties involved–small and bounded in most court proceedings; large and at times unbounded in a planning or policy decision. Sounds like you’re getting to that issue when you mention anchoring the mediation to whether there’s a redesign that the other folks also would still be “willing to live with.”

        It occurs to me, the more I think about possible roles for mediation (or some interchangeable process), that there could be different roles depending upon where you are in the process. I’m thinking of three distinct phases: (a) during a planning process (pre-proposal), (b) during an administrative appeals period (post-proposal, pre-decision), or (c) during any litigation that might occur (post-decision). I hope I have those phases roughly characterized right.

        My sense is the role of mediation might be different in each, yet the challenge might be similar if the overarching process is intended to be more collaborative. That challenge might be something like this: How to mediate specific disputes between a smaller number of specific parties without jeopardizing the willingness of other parties to live with the resulting decision or, more to the point, to remain willing to help implement that decision?

        And I’m assuming that one of the principle goals for a collaborative planning process is to grow what might be called “collaborative capacity” among the participants, which I think of as a combination of the willingness to live with the decision and the willingness to help implement it or monitor/evaluate the effectiveness. Maybe that’s not always the case, which seems along the lines of what Jon’s getting at.

  3. Collaboration by definition requires shared goals, and I think it will usually be those with different goals who choose to litigate. Mediation to resolve smaller questions about how to achieve the shared goals may be helpful to collaboration, but I don’t see it helping to reduce litigation.

    • Collaboration is probably better understood as being about a willingness to work together despite differences. I’ve never heard of collaboration defined by shared goals, although you might argue that working collaboratively on implementation involves sharing goals related to getting the work done. More often collaboration is defined as a way of working together to address issues that the participants agree are important even if they disagree about why.

      In my experience, searching for shared goals too easily devolves into a focus on positions, whereas looking for shared interests can be more fruitful. . Parties in a dispute can start with opposing positions, but, through a collaborative process, come to learn that they have shared interests or enough shared interests to become or remain willing to work together.

      Relative to the litigation questions, I wonder if it might be useful to think about a different strategy. One I’ve used fairly successfully is to invite/help any likely litigant to at least consider that litigation might have a higher risk to their interests than participation in a collaborative effort. That approach focuses on making the Best Alternative to Negotiated Agreement (BATNA) as bad as possible for anyone who chooses an adversarial strategy up to or including litigation.

      The key seems to be to avoid procedural violations that undermine Administrative discretion by opening the decision to judicial review. The idea is to make it clear to potential litigants that, one, litigation has a high risk of failure for them because the process is legally sound and, two, their interests may not be well represented if they choose to not participate in the collaborative process.


  4. I think you just said that if the agency complies with the law they’ll have less risk of litigation. I can’t argue with that, but I don’t know where it gets you. Back to EADM I guess.

    I shopped for a definition of collaboration before making my comment, and I liked this one: “Two or more people working together towards shared goals.” The focus there is software, but the reasoning made sense. While other definitions aren’t explicit about this, they usually imply it (Cambridge dictionary: “to create or achieve something”). I would say that “resolving issues” is a goal (and there may still be some who don’t want to resolve them). But I don’t have your experience, and if this framing works better, that’s good.

    • Yup, you’re absolutely right about the dictionary definitions. My head was in the “collaborative planning” and “collaborative decision-making” space where the issue of interests vs. positions comes up so often and goals can be confused with positions. So, mea culpa on me.

      On the litigation point, I’m thinking that compliance with the law reduces vulnerability, which seems related to the risk of losing during litigation. Whether litigation is initiated, however, seems more of a decision by the other parties. That’s where the idea of a BATNA might help if it encourages potential litigants to rethink their risk in pursuing litigation while also encouraging them to choose to participate more constructively, perhaps even to engage in the collaborative process. Maybe that’s just an obvious no-duh on my part?

      • I’m ignorant about ADR processes. Which one would have been best suited to resolve the Pacific Northwest’s spotted owl/old-growth forest issue? What different outcome might have been expected?

        • What an interesting question! In a sense, you’re asking a design question because it comes down to whether the goal(s) would have been different. For example, one might argue that the issue is complex enough that we might want to frame it as a long-term management problem (as in “this is going to take time and effort”), rather than a problem that can be “resolved” (in the sense of “all done, resolved, let’s move on”).

          If, just for the sake of discussion, you buy the idea that the long-term framing might be useful, then the goal of the process might become to clarify the long-term problem(s) that any successful management plan would need to address, engaging communities, Tribes, industry, conservation/preservation groups, and management agencies, as well as others my short list overlooks. That takes me down the road of a generally collaborative process that also connects with government-government consultation with Tribes, mediation among/between some groups on certain issues, and even non-binding arbitration in some cases. In other words, the design might involve and include a variety of ADR processes as well on other important processes, like government-government consultation, etc., all roughly coordinated within a broader collaborative effort.

          As an aside, I’ve always assumed that any collaborative effort isn’t corrupted by occasional, appropriate incorporation of otherwise non-collaborative approaches so long as those other approaches are consistent with and pursued in support of the broader collaborative process.

          So, what about outcomes or results? What you might expect as a different result obviously could be huge and varied, but I’d offer a gut-level response. An ADR approach (or an approach grounded in ADR with space for other processes as well) might lead or have led to several importantly different outcomes:
          (1) a more broadly shared understanding of the problem itself, as seen from different perspectives
          (2) a better understanding of the options and opportunities for addressing that complex problem
          (3) a better understanding of what gets in the way or likely would get in the way of addressing the problem
          (4) a long-term management plan reflecting these understandings and, this is key, the willingness of more people/organizations to live with, support, and even help implement the plan
          (5) lower long-term management costs (due to the help and support)
          (6) lower litigation costs (due to the greater willingness to live with the plan)

          But I’m just spit-balling, as it were. I’m sure others might add to this list and some might disagree with some or all of it. Does it help, though?


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