Environmental mediation: The ethical and constitutional dimension

Journal of Environmental Law

Volumn 9, Issue 1, 1997, Pages 78-101

  Harrison, John ^a  

^a London Borough of Southwark ^*  (United Kingdom)

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[No Author keywords available]

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EID: 9644289760     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (110)

1. 'The Role of Courts and Other Judicial Type Bodies in Environmental Management' (1991) Journal of Environmental Law vol 3 no 2, 195-208.
2. Environmental Resolve, Beyond Compromise: Building Consensus in Environmental Planning and Decision-Making, Environment Council, London, 1995; cf Nick Wates, 'Action Planning', The Prince of Wales's Institute of Architecture, 1996. Mediation has, of course, been used in the UK in the resolution of commercial, family, neighbour and victim/offender disputes for some time, see Karl Mackie (ed) 'A Handbook of Dispute Resolution: ADR in Action', Routledge and Sweet & Maxwell, 1991. For descriptions of the Australian experience see Eugene Clark, 'The Role of Non-Litigious Dispute Resolution Methods in Environmental Disputes' 2(2) Australasian Journal of Natural Resources Law and Policy, 211 (1995) and Michael Stubbs, 'Environmental Mediation in Planning Appeals: Lessons from the Land and Environment Court of New South Wales', 39(2) Journal of Environmental Planning and Management, 273-84 (1996).
3. Environmental Resolve, Beyond Compromise: Building Consensus in Environmental Planning and Decision-Making, Environment Council, London, 1995; cf Nick Wates, 'Action Planning', The Prince of Wales's Institute of Architecture, 1996. Mediation has, of course, been used in the UK in the resolution of commercial, family, neighbour and victim/offender disputes for some time, see Karl Mackie (ed) 'A Handbook of Dispute Resolution: ADR in Action', Routledge and Sweet & Maxwell, 1991. For descriptions of the Australian experience see Eugene Clark, 'The Role of Non-Litigious Dispute Resolution Methods in Environmental Disputes' 2(2) Australasian Journal of Natural Resources Law and Policy, 211 (1995) and Michael Stubbs, 'Environmental Mediation in Planning Appeals: Lessons from the Land and Environment Court of New South Wales', 39(2) Journal of Environmental Planning and Management, 273-84 (1996).
4. Environmental Resolve, Beyond Compromise: Building Consensus in Environmental Planning and Decision-Making, Environment Council, London, 1995; cf Nick Wates, 'Action Planning', The Prince of Wales's Institute of Architecture, 1996. Mediation has, of course, been used in the UK in the resolution of commercial, family, neighbour and victim/offender disputes for some time, see Karl Mackie (ed) 'A Handbook of Dispute Resolution: ADR in Action', Routledge and Sweet & Maxwell, 1991. For descriptions of the Australian experience see Eugene Clark, 'The Role of Non-Litigious Dispute Resolution Methods in Environmental Disputes' 2(2) Australasian Journal of Natural Resources Law and Policy, 211 (1995) and Michael Stubbs, 'Environmental Mediation in Planning Appeals: Lessons from the Land and Environment Court of New South Wales', 39(2) Journal of Environmental Planning and Management, 273-84 (1996).
5. Environmental Resolve, Beyond Compromise: Building Consensus in Environmental Planning and Decision-Making, Environment Council, London, 1995; cf Nick Wates, 'Action Planning', The Prince of Wales's Institute of Architecture, 1996. Mediation has, of course, been used in the UK in the resolution of commercial, family, neighbour and victim/offender disputes for some time, see Karl Mackie (ed) 'A Handbook of Dispute Resolution: ADR in Action', Routledge and Sweet & Maxwell, 1991. For descriptions of the Australian experience see Eugene Clark, 'The Role of Non-Litigious Dispute Resolution Methods in Environmental Disputes' 2(2) Australasian Journal of Natural Resources Law and Policy, 211 (1995) and Michael Stubbs, 'Environmental Mediation in Planning Appeals: Lessons from the Land and Environment Court of New South Wales', 39(2) Journal of Environmental Planning and Management, 273-84 (1996).
6. Environmental Resolve, Beyond Compromise: Building Consensus in Environmental Planning and Decision-Making, Environment Council, London, 1995; cf Nick Wates, 'Action Planning', The Prince of Wales's Institute of Architecture, 1996. Mediation has, of course, been used in the UK in the resolution of commercial, family, neighbour and victim/offender disputes for some time, see Karl Mackie (ed) 'A Handbook of Dispute Resolution: ADR in Action', Routledge and Sweet & Maxwell, 1991. For descriptions of the Australian experience see Eugene Clark, 'The Role of Non-Litigious Dispute Resolution Methods in Environmental Disputes' 2(2) Australasian Journal of Natural Resources Law and Policy, 211 (1995) and Michael Stubbs, 'Environmental Mediation in Planning Appeals: Lessons from the Land and Environment Court of New South Wales', 39(2) Journal of Environmental Planning and Management, 273-84 (1996).
7. 'Chief Inspector Puts Mediation on Agenda', The Planner, 14 June 1996, p 1173.
8. However, the term Alternative Dispute Resolution is probably now too entrenched to be changed.
9. The unofficial Oslo negotiations facilitated by Norwegian diplomats that led to the Middle East peace accords in 1993 provide a striking example of the value of even this minimalist form of assistance, see Jane Corbin, 'Gaza First: The Secret Norway Channel to Peace Between Israel and the PLO', Bloomsbury, 1994.
10. A theoretical explanation of the practice of environmental mediation is given in Susskind and Weinstein, 'Towards a Theory of Environmental Dispute Resolution', Boston College Environmental Affairs Law Review, 1980-81, vol 9 no 2, 311-57; the importance of Pareto optimality in negotiation theory i.e. the principle that to be substantively efficient the product of the bargaining process should secure the greatest overall net benefit for each party, without leaving any party worse off than it was in its original configuration - is explained in Howard Raiffa, 'The Art and Science of Negotiation', Harvard University Press, 1982.
11. A theoretical explanation of the practice of environmental mediation is given in Susskind and Weinstein, 'Towards a Theory of Environmental Dispute Resolution', Boston College Environmental Affairs Law Review, 1980-81, vol 9 no 2, 311-57; the importance of Pareto optimality in negotiation theory i.e. the principle that to be substantively efficient the product of the bargaining process should secure the greatest overall net benefit for each party, without leaving any party worse off than it was in its original configuration - is explained in Howard Raiffa, 'The Art and Science of Negotiation', Harvard University Press, 1982.
12. Leonard G. Buckle and Suzann R. Thomas-Buckle, 'Placing Environmental Mediation in Context: Lessons From "Failed" Mediations', Environ Impact Assessment Review, (1986) 6, 55-70; Gerald Cormick, 'Environmental Mediation in the US: Experience and Future Directions', Seattle, Mediation Institute, 1981. Mimeo.
13. Leonard G. Buckle and Suzann R. Thomas-Buckle, 'Placing Environmental Mediation in Context: Lessons From "Failed" Mediations', Environ Impact Assessment Review, (1986) 6, 55-70; Gerald Cormick, 'Environmental Mediation in the US: Experience and Future Directions', Seattle, Mediation Institute, 1981. Mimeo.
14. Gerald Cormick and Jane McCarthy, 'Environmental Mediation: Flood Control, Recreation and Development in the Snoqualmie River Valley', St Louis: Washington University, Social Science Institute, 1974; Cormick, 'Mediating Environmental Controversies: Perspectives and First Experience', Earth Law Journal, 2 (1976): 215-24.
15. Gerald Cormick and Jane McCarthy, 'Environmental Mediation: Flood Control, Recreation and Development in the Snoqualmie River Valley', St Louis: Washington University, Social Science Institute, 1974; Cormick, 'Mediating Environmental Controversies: Perspectives and First Experience', Earth Law Journal, 2 (1976): 215-24.
16. Gail Bingham, 'Resolving Environmental Disputes: A Decade of Experience', The Conservation Foundation, Washington DC, 1986, p 29. Although Bingham's study is now somewhat dated in that it does not cover changes in substantive environmental law over the last decade its central conclusions about the efficacy of the environmental mediation process remain broadly valid and it is still the most comprehensive empirical survey of actual practice in the field, see Rosemary O'Leary, Environmental Mediation: What Do We Know and How Do We Know It?, in Blackburn and Bruce (eds), 'Mediating Environmental Conflicts: Theory and Practice', Quorum Books, 1995.
17. Gail Bingham, 'Resolving Environmental Disputes: A Decade of Experience', The Conservation Foundation, Washington DC, 1986, p 29. Although Bingham's study is now somewhat dated in that it does not cover changes in substantive environmental law over the last decade its central conclusions about the efficacy of the environmental mediation process remain broadly valid and it is still the most comprehensive empirical survey of actual practice in the field, see Rosemary O'Leary, Environmental Mediation: What Do We Know and How Do We Know It?, in Blackburn and Bruce (eds), 'Mediating Environmental Conflicts: Theory and Practice', Quorum Books, 1995.
18. Bingham, op cit n 9.
19. Bingham, op cit n 9.
20. 'Energy 'Summit' Shows There's Room For Compromise On Old Obstacles', Inside Energy, 28 May 1990.
21. David M. Pritzker and Deborah S. Dalton, Negotiated Rulemaking Sourcebook, ACUS, Washington DC, 1995, especially ch 10 'Agency Experience with Negotiated Rulemaking'.
22. 'Public Policy Mediation: Status and Prospects', Peter Szanton & Associates, 1989; Christopher Honeyman, 'Financing Dispute Resolution', WERC, 1995.
23. 'Public Policy Mediation: Status and Prospects', Peter Szanton & Associates, 1989; Christopher Honeyman, 'Financing Dispute Resolution', WERC, 1995.
24. Philip J. Harter, 'Negotiating Regulations: A Cure for Malaise', 71 Georgetown Law Journal, 1 (1982): reviewed 60 case studies, found only 6 that were negotiable; Gail Bingham, 'Resolving Environmental Disputes: A Decade of Experience', Conservation Foundation, Washington DC, 1986.
25. Philip J. Harter, 'Negotiating Regulations: A Cure for Malaise', 71 Georgetown Law Journal, 1 (1982): reviewed 60 case studies, found only 6 that were negotiable; Gail Bingham, 'Resolving Environmental Disputes: A Decade of Experience', Conservation Foundation, Washington DC, 1986.
26. Rosemary O'Leary, 'Environmental Mediation: What Do We Know and How Do We Know It?', in Blackburn and Bruce (eds), Mediating Environmental Conflicts: Theory and Practice, Quorum Books, 1995, pp 30-1.
27. Gail Bingham, 'Resolving Environmental Disputes: A Decade of Experience', Conservation Foundation, Washington DC, 1986, p 45.
28. See e.g., Jane McCarthy and Alice Shorett, 'Negotiating Settlements: A Guide to Environmental Mediation', American Arbitration Association, 1984; Harter, op cit n 15.
29. See e.g., Jane McCarthy and Alice Shorett, 'Negotiating Settlements: A Guide to Environmental Mediation', American Arbitration Association, 1984; Harter, op cit n 15.
30. Lawrence Susskind, Gerard McMahon and Stephanie Rolley, 'Mediating Development Disputes: Some Barriers and Bridges to Successful Negotiation', 7 Environmental Impact Assessment Review, 127-38 (June 1987).
31. O'Leary (op cit n 16) reviewed five studies which concluded that a large number of participants impede resolution: however Bingham (op cit n 17) who conducted the largest empirical survey of environmental mediations ever carried out (161 cases) concluded that the likelihood of success is not affected by the number of parties.
32. O'Leary (op cit n 16) reviewed five studies which concluded that a large number of participants impede resolution: however Bingham (op cit n 17) who conducted the largest empirical survey of environmental mediations ever carried out (161 cases) concluded that the likelihood of success is not affected by the number of parties.
33. The case studies presented here are illustrative of points made throughout the article. Although they demonstrate something of the range of applications that mediation can be used in and some of range of techniques available to mediators, they are not intended to be representative of the whole field. The Canadian case is included in part to illustrate the application of environmental mediation in a regulatory context closer to that of the UK.
34. Author's interview with co-mediator Vicky King of Triangle Associates, Seattle, WA, 27.2.96; 'Using Land Use to Chart Waste Cleanup: Principles and Guidelines from the Hanford Working Group Process', Triangle Associates Inc, January 1993; 'A Case File from the Hanford Future Site Uses Working Group Project', Triangle Associates Inc, (undated 1993).
35. Author's interview with co-mediator Vicky King of Triangle Associates, Seattle, WA, 27.2.96; 'Using Land Use to Chart Waste Cleanup: Principles and Guidelines from the Hanford Working Group Process', Triangle Associates Inc, January 1993; 'A Case File from the Hanford Future Site Uses Working Group Project', Triangle Associates Inc, (undated 1993).
36. The 'commitment' consisted of personal, signed letters to each member of the working group from the Governor of Washington state, the Regional Administrator of the EPA and the Undersecretary of the US DOE; nevertheless this should be understood as a political, rather than a legal commitment.
37. This case study draws on Desmond M Connor and Suzanne G. Orenstein, 'The Bridges of Winnipeg: A Case Study' in Consensus, July 1995, p 2.
38. John Harrison, 'Regulatory Negotiation on Cape Cod', Consensus, October 1996.
39. Madison, Federalist Papers, Numbers 45 and 47-51; Alexis de Tocqueville, 'Democracy in America', vol 1, ch 8. Richard Hofstadter in 'The American Political Tradition' (1948) called the whole panoply of checks and balances to be found in the constitution 'a harmonious system of mutual frustrations'.
40. Madison, Federalist Papers, Numbers 45 and 47-51; Alexis de Tocqueville, 'Democracy in America', vol 1, ch 8. Richard Hofstadter in 'The American Political Tradition' (1948) called the whole panoply of checks and balances to be found in the constitution 'a harmonious system of mutual frustrations'.
41. Among such federal environmental statutes are the Toxic Substances Control Act 1972, the Endangered Species Act 1973, the Marine Protection, Research and Sanctuaries Act 1972, the Federal Water Pollution Control Act Amendments of 1972, the Deepwater Port Act 1974, the Safe Drinking Water Act 1974, the Clean Air Amendments of 1970, the Noise Control Act 1972, the Energy Policy and Conservation Act 1975 and the Resource Conservation and Recovery Act 1976. The early, more liberal, conception of the citizen-suit provisions came under attack in the early 1990s when the Supreme Court narrowed the rules on standing by insisting on a more stringent showing of 'injury in fact': Lujan v Defenders of Wildlife 112 S Ct 2130.
42. See e.g., Clean Water Act, 33 USC @ 1365(e) and 1369(b)(3); 42 USC @ 6972(e); Clean Air Act, 42 USC @ 76o4(d) and 7607(f); and see David R. Hodas, 'Enforcement of Environmental Law in a Triangular Federal System: Can Three Not Be A Crowd When Enforcement Authority Is Shared By The United States, The States and Their Citizens?' 54 Md L Rev 1552 at 1651, (1995). Generally the courts are given a discretion to award costs 'as appropriate' - in almost all cases awards are only in favour of successful plaintiffs.
43. In the early 1980s, 80% of the EPA's regulations once promulgated were being challenged in litigation: William H Miller, 'Bypassing the Lawyers: Regulatory Negotiation Gets Test in Agencies', Industry Week, 23 June 1986.
44. Nor do British environmental regulatory agencies make use of the courts to any extent comparable to their counterparts in the US: Keith Hawkins, 'Rule and Discretion in Comparative Perspective: The Case of Social Regulation', 50 Ohio St L J 663, (1989).
45. In the UK our problem is not so much a procedural crisis but rather a crisis of policy failure, e.g., Brent Spar, Newbury and the M11.
46. For a comparative study of alternatives to the courts, albeit not in the context of environmental law, see, Bryant Garth, The Movement toward Procedural Informalism in North America and Western Europe: A Critical Survey', in Richard L Abel, The Politics of Informal Justice, Volume 2, Academic Press, 1982. See also, D. Vogel, 'National Styles of Regulation: Environmental Policy in Great Britain and the United States', (1986).
47. For a comparative study of alternatives to the courts, albeit not in the context of environmental law, see, Bryant Garth, The Movement toward Procedural Informalism in North America and Western Europe: A Critical Survey', in Richard L Abel, The Politics of Informal Justice, Volume 2, Academic Press, 1982. See also, D. Vogel, 'National Styles of Regulation: Environmental Policy in Great Britain and the United States', (1986).
48. David Schoenbrod, 'Limits and Dangers of Environmental Mediation', 58 NYUL Res 1453, (1983); Patricia Wald, 'Negotiation of Environmental Disputes: A New Role for the Courts?', 10 Colum J Envtl L R (1985); Susan Rose-Ackerman, 'Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation', April 1994, 43 Duke LJ 1206; Robert J. Golten, 'Mediation: A "Sellout" for Conservation Advocates, or a Bargain?', Environmental Professional 2-1 (1980) 62-6; Laura Nader (ed), 'No Access to Law: Alternatives to the American Judicial System', New York: Academic Press, c1980; Douglas Amy, 'The Politics of Environmental Mediation', Columbia University Press, 1987.
49. David Schoenbrod, 'Limits and Dangers of Environmental Mediation', 58 NYUL Res 1453, (1983); Patricia Wald, 'Negotiation of Environmental Disputes: A New Role for the Courts?', 10 Colum J Envtl L R (1985); Susan Rose-Ackerman, 'Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation', April 1994, 43 Duke LJ 1206; Robert J. Golten, 'Mediation: A "Sellout" for Conservation Advocates, or a Bargain?', Environmental Professional 2-1 (1980) 62-6; Laura Nader (ed), 'No Access to Law: Alternatives to the American Judicial System', New York: Academic Press, c1980; Douglas Amy, 'The Politics of Environmental Mediation', Columbia University Press, 1987.
50. David Schoenbrod, 'Limits and Dangers of Environmental Mediation', 58 NYUL Res 1453, (1983); Patricia Wald, 'Negotiation of Environmental Disputes: A New Role for the Courts?', 10 Colum J Envtl L R (1985); Susan Rose-Ackerman, 'Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation', April 1994, 43 Duke LJ 1206; Robert J. Golten, 'Mediation: A "Sellout" for Conservation Advocates, or a Bargain?', Environmental Professional 2-1 (1980) 62-6; Laura Nader (ed), 'No Access to Law: Alternatives to the American Judicial System', New York: Academic Press, c1980; Douglas Amy, 'The Politics of Environmental Mediation', Columbia University Press, 1987.
51. David Schoenbrod, 'Limits and Dangers of Environmental Mediation', 58 NYUL Res 1453, (1983); Patricia Wald, 'Negotiation of Environmental Disputes: A New Role for the Courts?', 10 Colum J Envtl L R (1985); Susan Rose-Ackerman, 'Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation', April 1994, 43 Duke LJ 1206; Robert J. Golten, 'Mediation: A "Sellout" for Conservation Advocates, or a Bargain?', Environmental Professional 2-1 (1980) 62-6; Laura Nader (ed), 'No Access to Law: Alternatives to the American Judicial System', New York: Academic Press, c1980; Douglas Amy, 'The Politics of Environmental Mediation', Columbia University Press, 1987.
52. David Schoenbrod, 'Limits and Dangers of Environmental Mediation', 58 NYUL Res 1453, (1983); Patricia Wald, 'Negotiation of Environmental Disputes: A New Role for the Courts?', 10 Colum J Envtl L R (1985); Susan Rose-Ackerman, 'Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation', April 1994, 43 Duke LJ 1206; Robert J. Golten, 'Mediation: A "Sellout" for Conservation Advocates, or a Bargain?', Environmental Professional 2-1 (1980) 62-6; Laura Nader (ed), 'No Access to Law: Alternatives to the American Judicial System', New York: Academic Press, c1980; Douglas Amy, 'The Politics of Environmental Mediation', Columbia University Press, 1987.
53. David Schoenbrod, 'Limits and Dangers of Environmental Mediation', 58 NYUL Res 1453, (1983); Patricia Wald, 'Negotiation of Environmental Disputes: A New Role for the Courts?', 10 Colum J Envtl L R (1985); Susan Rose-Ackerman, 'Consensus Versus Incentives: A Skeptical Look at Regulatory Negotiation', April 1994, 43 Duke LJ 1206; Robert J. Golten, 'Mediation: A "Sellout" for Conservation Advocates, or a Bargain?', Environmental Professional 2-1 (1980) 62-6; Laura Nader (ed), 'No Access to Law: Alternatives to the American Judicial System', New York: Academic Press, c1980; Douglas Amy, 'The Politics of Environmental Mediation', Columbia University Press, 1987.
54. The claim that consensus seeking approaches to public policy disputes produce results that are fairer, wiser, more efficient and stable than those produced by 'political compromise', i.e. a purely zero sum distributive allocation, is made by Susskind & Cruikshank, 'Breaking the Impasse: Consensual Approaches to Resolving Public Disputes', Basic Books, 1987.
55. Town and Country Planning Act 1990, s 106, formerly Town and Country Planning Act 1971 s 52; see, Property Advisory Group, 'Planning Gain', (HMSO, 1981); Healey et al, 'Gains From Planning? Dealing with the Impacts of Development', Joseph Rowntree Foundation, 1993.
56. Town and Country Planning Act 1990, s 106, formerly Town and Country Planning Act 1971 s 52; see, Property Advisory Group, 'Planning Gain', (HMSO, 1981); Healey et al, 'Gains From Planning? Dealing with the Impacts of Development', Joseph Rowntree Foundation, 1993.
57. Karen L. Liepmann, 'Confidentiality in Environmental Mediation: Should Third Parties Have Access to the Process?', 14 Boston College Environmental Law Review 93 (Fall 1986).
58. However there is a strong culture of openness in public administration in the USA which is reinforced by federal and often state Freedom of Information Act provisions and 'sunshine laws' which provide that public agency decisions must be taken in the sunshine ie in public. Although similar measures exist in the UK they are not as extensive and the culture remains one of official secretiveness. The extent to which agreements should be scrutinised by reviewing courts when the agreement itself or a collateral regulatory decision is challenged has been extensively explored by the English courts in the context of Section 106 agreements, see, R v Plymouth City Council ex p Plymouth and South Devon Co-operative Society [1993] JPL B81; Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636 (HL). Where there has been a broadly based and participatory mediation process this may, of course, discharge any statutory or 'legitimate expectation' duty to consult, but beyond this there seems to be little reason why a mediated agreement should be treated by a reviewing court any differently from a non-mediated agreement. The distinctive quality of mediated agreements that genuinely involve all stakeholders is that they are much less likely to be challenged in the first place.
59. Some attempts to compel mediation have been made in the US, but without great success, see, Jonathan Brock and Gerald W. Cormick, Can Negotiation Be Institutionalized or Mandated? Lessons from Public Policy and Regulatory Conflicts, in Kressel et al, 'Mediation Research: The Process and Effectiveness of Third-Party Intervention', Jossey-Bass, 1989: '. . . providing the mechanisms [for public policy and regulatory negotiations] in an institutionalized framework is complex and difficult. Often it is not even feasible.' For a contrary view in one specific case see, Michael Wheeler, 'Negotiating NIMBYs: Learning from the Failure of the Massachusetts Siting Law', 11 Yale J on Reg 241 (1994).
60. Some attempts to compel mediation have been made in the US, but without great success, see, Jonathan Brock and Gerald W. Cormick, Can Negotiation Be Institutionalized or Mandated? Lessons from Public Policy and Regulatory Conflicts, in Kressel et al, 'Mediation Research: The Process and Effectiveness of Third-Party Intervention', Jossey-Bass, 1989: '. . . providing the mechanisms [for public policy and regulatory negotiations] in an institutionalized framework is complex and difficult. Often it is not even feasible.' For a contrary view in one specific case see, Michael Wheeler, 'Negotiating NIMBYs: Learning from the Failure of the Massachusetts Siting Law', 11 Yale J on Reg 241 (1994).
61. Jeffrey Z Rubin, 'Psychological Traps', in Lewicki et al, Negotiation: Readings, Exercises and Cases, Irwin, 1993. Failure to reach agreement can come to be perceived by all the participants as a personal failure, almost irrespective of whether it is objectively in the interest of the parties to settle.
62. Max H. Bazerman and W.F. Samuelson, The Winner's Curse: An Empirical Investigation, in Tietz (ed) 'Aspirational Oriented Decision-Making', Springer-Verlag, (1983).
63. Schoenbrod, op cit n 33 at 1466.
64. Gail Bingham, 'Resolving Environmental Disputes: A Decade of Experience', Conservation Foundation, Washington DC, 1986 p 45.
65. Ibid, p xxiv, (site specific cases only).
66. E.g., Administrative Dispute Resolution Act 1990 (5 USCS @ 571); Negotiated Rulemaking Act 1990 (5 USCS @ 561); the growth of state offices of dispute resolution, see Peter S. Adler, 'State Offices of Mediation: Thoughts on the Evolution of a National Network', 81 Ky LJ 1013 (1993).
67. Amy, op cit n 33 at 134.
68. David M. Pritzker and Deborah S. Dalton, 'Negotiated Rule Making Source Book', Administrative Conference of the United States, 1995; see also Sam Gusman, 'Selecting Participants for a Regulatory Negotiation', 4(2) Environmental Impact Assessment Review, 195-202 (1983).
69. David M. Pritzker and Deborah S. Dalton, 'Negotiated Rule Making Source Book', Administrative Conference of the United States, 1995; see also Sam Gusman, 'Selecting Participants for a Regulatory Negotiation', 4(2) Environmental Impact Assessment Review, 195-202 (1983).
70. Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vermont L R, vol 6 no 1, pp 1-47 (original citations omitted).
71. Ibid at 41 and footnote 118.
72. Lawrence Susskind and Jeffrey Cruikshank, 'Breaking the Impasse: Consensual Approaches to Resolving Public Disputes', Basic Books (1987) p 103.
73. The United Nations Economic Commission for Europe is currently overseeing negotiations towards a treaty that would guarantee a general right of public participation in environmental decision-making without the need to demonstrate an interest, see John Harrison, 'European Draft Public Participation Treaty', Consensus, July 1996, p 9. The importance of public participation in environmental decision-making as a necessary component of sustainable development was recognised in Article 10 of Agenda 21, Rio de Janeiro, 16 June 1992 (UN Doc A/CONF 151/26 (1992), also published as IUCN EPLP No 27, edited by N.A. Robinson, 1993; see also Articles 20-22 concerning the participation of different components of the population. See further, Principle 23 of the World Charter for Nature (1982) and Article 12 of the Draft International Covenant on Environment and Development, IUCN, March 1995.
74. SPIDR, Ethical Standards of Professional Responsibility, adopted June 1986. The Model Standards of Conduct for Mediators, published by the American Arbitration Association, the American Bar Association and the Society of Professionals in Dispute Resolution, (1995) states that 'A mediator shall conduct the mediation fairly, diligently, and in a manner consistent with the principle of self determination by the parties'. This appears to be consonant with SPIDR's Ethical Standards, but it then unhelpfully comments 'The presence or absence of persons at the mediation depends upon the agreement of the parties and the mediator. The parties and the mediator may agree that others may be excluded from particular sessions or from the entire mediation1, without explaining on what basis the mediator should grant or withhold his or her agreement. Note that both documents apply to the whole range of mediated disputes e.g., commercial, family and neighbour conflict, and therefore do not specifically address the public law/public policy dimension of environmental disputes.
75. Douglas Amy, 'The Politics of Environmental Mediation', Columbia University Press, 1987.
76. Christopher Moore, 'The Mediation Process: Practical Strategies for Resolving Conflict', Jossey-Bass, 1986.
77. Terrel Northrup, 'The Dynamic of Identity in Personal and Social Conflict', in Kriesberg et al, Intractable Conflicts and Their Transformations, Syracuse University Press, 1989.
78. Roger Fisher and William Ury, 'Getting to Yes: Negotiating an agreement without giving in', Houghton Mifflin, 1981.
79. 'The Model Standards of Conduct for Mediators', op cit n 51. Standard V provides that 'If the mediator holds private sessions with a party, the nature of these sessions with regard to confidentiality should be discussed prior to undertaking such sessions'.
80. E.g., Brooks and Burton Ltd v SOSE (1978) 35 P & CR 27 at 40, per Lord Widgery CJ.
81. SPIDR, Ethical Standards of Professional Responsibility, adopted June 1986, '1. Impartiality. The neutral must maintain impartiality towards all parties. Impartiality means freedom from favoritism or bias either by word or by action, and a commitment to serve all parties as opposed to a single party'.
82. Amy, op cit n 33 at 117.
83. The lion and the lamb may lie down together, but the lamb won't get much sleep: Woody Allen.
84. Mnookin and Kornhauser, 'Bargaining in the Shadow of the Law', 88 Yale Law Journal 950 (1979).
85. Susskind and McMahon, 'Theory and Practice of Negotiated Rulemaking', Yale Journal on Regulation, vol 3, 133-65 at 153-5 (1985); O'Leary, op cit n 9.
86. Susskind and McMahon, 'Theory and Practice of Negotiated Rulemaking', Yale Journal on Regulation, vol 3, 133-65 at 153-5 (1985); O'Leary, op cit n 9.
87. Roger Fisher, 'Negotiating Power: Getting and Using Influence', American Behavioral Scientist, (1983) 27 Nov, no 2, pp 149-66.
88. Op cit n 33.
89. Ibid, p 179; he does not address Fisher's point that legitimacy - a good argument, an accepted notion of fairness or an objective standard - is an element of negotiating power.
90. Rosemary O'Leary, Environmental Mediation: What Do We Know and How Do We Know It?, in Blackburn and Bruce (eds), 'Mediating Environmental Conflicts: Theory and Practice', Quorum Books, 1995, pp 28-9.
91. He does acknowledge that mediation is in fact regarded as appropriate in only a minority of cases (at p 215), but nevertheless argues as if mediators acted with no selectivity.
92. See n 7 and 15.
93. Amy's models could be used as tools for analysis of individual disputes, or more helpfully still for the analysis of the component elements of individual disputes. However, more sophisticated tools for the analysis of individual disputes have been proposed (and are routinely used by many practitioners), e.g., Christopher Moore, 'The Mediation Process: Practical Strategies for Resolving Conflict', Jossey-Bass, 1986; Carpenter and Kennedy, 'Managing Public Disputes: A Practical Guide to Handling Conflict and Reaching Agreements', Jossey-Bass, 1988, at 71-91.
94. Amy's models could be used as tools for analysis of individual disputes, or more helpfully still for the analysis of the component elements of individual disputes. However, more sophisticated tools for the analysis of individual disputes have been proposed (and are routinely used by many practitioners), e.g., Christopher Moore, 'The Mediation Process: Practical Strategies for Resolving Conflict', Jossey-Bass, 1986; Carpenter and Kennedy, 'Managing Public Disputes: A Practical Guide to Handling Conflict and Reaching Agreements', Jossey-Bass, 1988, at 71-91.
95. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
96. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
97. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
98. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
99. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
100. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
101. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
102. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
103. Gerald Cormick, 'The Ethics of Mediation: Some Unexplored Territory', (1977) unpublished paper presented to the Society of Professionals in Dispute Resolution (SPIDR), reprinted in Bacow and Wheeler, 'Environmental Dispute Resolution', Plenum Press, 1984. (Cormick was co-mediator of the Snoqualmie River Dam dispute in 1973-74, credited with being the first formal environmental mediation in the USA), see n 8; J.H. Laue and G. Cormick, The Ethics of Intervention in Community Disputes, in Barmant et al, 'The Ethics of Social Intervention', Halstead Press (1978); Lawrence Susskind, 'Environmental Mediation and the Accountability Problem', (1981) Vt L R vol 6 no 1, pp 1-47; Joseph B. Stulberg, 'The Theory and Practice of Mediation: A Reply to Professor Susskind', (1981) Vt L R vol 6 no 1, 85; John McCrory, 'Environmental Mediation-Another Piece for the Puzzle', [1981] Vt L R vol 6 no 1, 49-84; Jerome Ross, 'Should the Mediator Raise Public Interest Considerations during Negotiations', SPIDR: Ethical Issues in Dispute Resolution, 1983 Annual Proceedings, p 50; Roderich Hettwer, 'Ethical Factors in Environmental Negotiation', Environ Impact Assess Review (1991); 11, 197-201 ; Stephens et al, The Ethics of Environmental Mediation, in Blackburn and Bruce, 'Mediating Environmental Conflicts', Quorum Books, 1995.
104. Susskind (1981) op cit n 47. The notion of joint gains - the conceptual basis for so-called win/win solutions - is borrowed from game theory, the mathematical analysis of abstract competitive choice behaviour, on which see, Howard Raiffa, 'The Art and Science of Negotiation', Harvard University Press, 1982.
105. Susskind (1981) op cit n 47. The notion of joint gains - the conceptual basis for so-called win/win solutions - is borrowed from game theory, the mathematical analysis of abstract competitive choice behaviour, on which see, Howard Raiffa, 'The Art and Science of Negotiation', Harvard University Press, 1982.
106. Deborah M. Kolb and Associates, 'When Talk Works: Profiles of Mediators', Jossey-Bass, 1994, chapter 8: Lawrence Susskind, p 332.
107. SPIDR, Ethical Standards of Professional Responsibility, adopted June 1986, para 6.
108. Ibid.
109. Cormick (1977) para 2, op cit n 70.
110. Chris Shepley, speech to RTPI Conference on 'Mediation in the Planning System', Warrington, 15 October 1996.