What We Can Learn from a Conflict Resolution Expert

Professor Carrie Menkel-Meadow of UC Irvine Law School

While we remain immersed in what some folks call “environmental” conflicts, there are other folks who are experts in the world of conflict resolution. Perhaps we can learn from them. One of these is Carrie Menkel-Meadow, a law prof at UC Irvine. Here are some excerpts from her 2010 paper “When Litigation Is Not the Only Way: Consensus Building and Mediation As Public Interest Lawyering“.

While Hampshire concludes that agreement on the substantive good is not possible in our modern, diverse, and pluralistic world/ he is optimistic that there might be one human universal: “fairness in procedure is an invariable value, a constant in human nature …. [T]here is everywhere a well-recognized need for procedures for conflict resolution, which can replace brute force and domination and tyranny.” Hampshire refers to several forms of conflict resolution, including both well-known forms such as adjudication, arbitration, and ”judging,,, as well as broader political processes such as deliberating, examining, discussing policy choices, diplomatic negotiations, and “hearing.” … When properly expanded from “hear the other side” to “hear all sides,” Hampshire provides a foundational principle from which to measure whether justice and the public interest are served in all political and legal decision making. Where Hampshire sees justice in the recognition that all conflict is inevitable and must be humanely tended to, those in the conflict resolution movement see the conflict resolution processes employed as at least one important measure of justice.

She goes on to say that there are seldom only two sides in public conflicts.

Environmental issues involve developers, local communities, who themselves may be split between pro-development employment seekers and environmental conservationists, a wide variety of disagreeing public interest groups, and federal, state, and local agencies. … Consider how often in litigation the “real parties in interest” include others besides those formally named as plaintiff or defendant in any given case. To the extent that multiple parties have claims, needs, interests and “rights” in a legal action, the concept of “hearing both sides” may be falsely reductionist in assuming that all parties can align themselves on one or the other side of the “v.” and that any resolution favoring one side over the other will solve the problem, conclude the litigation, or end the conflict

The environmental arena is an especially productive domain for these processes. Former Secretary of the Interior, Bruce Babbitt, frustrated by the legislative grid-lock on some forms of environmental regulation and wildlife protection, championed a process he denominated “quasi-legislative dispute resolution. Habitat Conservation Planning empowers the stakeholders in a particular region to engage in trades and negotiations and to set standards for preservation of species not protected by the binary approach of current legislation. Environmental problems over natural resource use cannot be solved in dichotomous terms and not with the time-consuming processes of litigation or legislation. ”New governmental processes, involve all the stakeholders and to manage a variety of targeted, and in some cases, unique, creative solutions to problems. Such solutions may themselves be contingent and revisited with an agreed-upon process as scientific conditions or facts change.

Sounds like structured adaptive management. (my bold)

Size Matters (?):

Consensus outcomes are more likely to focus on the future, as well as the past. They are supposed to be based on underlying interests and needs, rather than arguments and positions. As the popular parlance goes, they are intended to “expand the pie,” or look for additional resources or new ideas, rather than to divide a presumed limited sum of resources available to the parties. In more technical terms, different processes are more likely to produce “pareto optimal” solutions than the assumed compromises of negotiation or “split the baby” compromise verdicts or arbitration awards. In processes where all the “real parties in interest, participate, there will be more than two sides to each issue and very likely there will be more than one issue to be resolved. Expanding, rather than narrowing, issues will increase the likelihood of reaching good agreements, because as game theory and other quantitative theories propose, more solutions are possible when more “trades” are possible. Although it may seem counterintuitive to conventional legal reasoners, the more disagreement about what is important, the better. Oppositional or complementary “trades” allow each side to satisfy their most important needs by meeting the most important needs of other parties. With more complementary, rather than conflicting, desires, we can find more ways to share things, an elaboration of the Homans theory of complementary needs.

This makes much sense, and I can see how that might go back to why collaborative processes fit better with multi-activity large projects. However, following this along, it seems like forest plans would be even better for achieving agreement, but that doesn’t seem to be the way it works. Or is it?

Other ideas?

Here’s a link to the Bruce Babbitt paper she cites. But I couldn’t seem to get it for free. Also this one looks interesting. “Bruce Babbitt’s use of … A Mid-term Report Card” by Tom Melling. Maybe someone with access to a law library could help?

9 thoughts on “What We Can Learn from a Conflict Resolution Expert”

  1. I think Forest Plans should be the method for all conflicts to be brought forward and considered. I think the public agency bears all the responsibility to find the correct solution by considering all the facts. Too often the process leaves people with other viewpoints or solutions unheard.

  2. We can barely make it out of the Collaboration part, much less the Consensus part. When a Compromise is forced on an opponent, is that really a compromise? Those three ‘C-words’ need to be dealt with in the proper order.

    Find important things to reach consensus on, and get that work moving. Don’t dwell upon issues that aren’t quite ripe for consensus, yet. There is common ground to find.

    • Perhaps that’s the problem with forest plans, Larry.. they involve needing to decide on things that are unlikely to be ripe for consensus. Would like to hear from those who have been successful, though. Of course, what is successful, and how would we know? Not being litigated, or being litigated may not be a good metric.

  3. Interesting that we were both thinking about forest plans reading this. There is a key point in the planning process where you look at all the data (from the Assessment) and identify what needs to change from the current forest plan. If this were done in a collaborative fashion, along the lines of what is suggested here, it could go a long ways towards “resolving” some of the problems. Unfortunately, what I’ve seen is that the Forest Service seems to blow through this step without giving it much thought, and even worse not using it in the subsequent planning process. “Need for change” tends to be written up as bland generalities. Part of the thought behind the 2012 Planning Rule was to get a big chunk of the work done before the formal start of the process, and this would be part of that, but I don’t think that is what’s happening. Maybe someone has had a different experience?

    Part of that should include exploring the legal sideboards so that time is not wasted on options that would not survive in court. Would it be a bad thing to get the lawyers involved earlier in the process?

    • 100% spot on, Jon. Getting lawyers involved early on would have helped prevent many of the Region One planning conflicts. There is a lot of “legislation from the ranger station” still going on here, and some is barely legal. Some wasn’t legal but has now likely survived statutes of limitations, thus enshrining bad policy. But also enshrining opposition.

    • Jon and Greg, (1) as far as I know curing my time in R-2, we never had any complaints from attorneys on how they were involved in the planning process. Even if the forests didn’t know what might be iffy, I seem to remember that OGC reviewed the DEIS for potential trouble. I don’t remember them reducing any conflicts, just making sure we covered the legal bases. Region 1 planners did tell me that we worked with OGC differently than they did during that period.
      (2) I like the idea of the collaboratively developed Need for Change. However, I would reverse the order, I would ask folks about their perceived need for change, and then assess what would inform those questions. Otherwise assessments can be so grandiose -Flathead’s was 600 ish pages- that the public is unlikely to read it anyway. It seems to elevate FS interests and concerns by the way it is designed. I think the baseline information in the Assessment could be simplified (greatly), and then information collected on questions identified by the public.

      (3) “so that time is not wasted on options that would not survive in court.” Would that it were that simple! As our OGC folks used to say, “we’ve won ones we should have lost and lost ones we should have won.” In some cases, it’s pretty obvious and the OGC folks can articulate it. In my experience, both the staff (litigation and planning) and line officers would follow along in pretty specific detail (case law, etc.) and folks would agree. If OGC disagreed we wouldn’t do it. Part of that may be due to personality and how strongly an individual OGC person asserts something they are not sure about. In other cases, it is not so obvious and cases could go either way and OGC would let us know the strengths and weaknesses.

      • I like the idea of an issue-focused assessment; it might lead to an issue-focused plan. Instead of the kitchen-sink approach that results from what I’ve seen as “equal time” demands from various resources. I think one thing the FS did to discourage that was to emphasize that assessments were not supposed to collect new information. If that would help resolve an issue, it should have been an option with a reasonable delay in priority for that forest.

        My experience is that OGC advice was often not sought, not available and/or ignored. I would like to see them sit in on early collaborative meetings and then wave red flags where appropriate.

        • My experience was almost the opposite; it was always sought, always available and seldom ignored. Maybe because they were upstairs and so it was more convenient to use them? Also if they said something and we (the staff) said something else, it seemed that they would always go with the conservative (legal) approach. But that’s my perspective.

          It would be great if we could find some retired OGC folks from different Regions and ask them some of these questions from their perspective. I’ve tried but no one seems interested of the folks I know. Also I think it depends on personalities and the mix (back to my business book, “Personal Chemistry: The Role of Unmanageable Forces in Management.”


Leave a Comment