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?
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?