Lizbeth Hasse, Creative Industry Law
Read the first part: Mediating Environmental Disputes, Part I: Addressing the Long Term in the Present
Mediation is an especially useful forum for environmental disputes because it can be set up to include various constituencies essential to a long term environmental remediation process and a sustainable resolution. Government agencies, NGOs and environmental activists are frequently among the participants in the mediation. These participants tend to have long term impact as a primary concern, but accommodating their motivations and interests can be a challenge to a mediated resolution.
Environmental NGOs participate in mediations involving oil, gas or mining projects as claimants in litigation or as negotiators seeking to protect certain environmental interests that may be threatened by an extractive development project. From either the retrospective standpoint of seeking remediation and recovery, or from the prospective standpoint of limiting destructive development, the NGO’s interests in the negotiations may differ from those living in the region it seeks to protect. Very often the impact sought by the NGO is broader and more visible.
Some NGOs such as the World Wildlife Fund, the Sierra Club, Earthjustice and others have a nationwide or worldwide presence as well as representatives operating in the particular locale affected. It is important that the mediator know what level of the organization must ultimately approve a settlement. The local NGO representative may be getting messages or instructions from a national committee that the resolution in this particular region area must set or conform to a standard for resolutions in other actions in different regions.
Activists may feel that any compromise will be criticized as a “sell-out” or a lost opportunity for the impact of a precedential decision. The mediator can help advocates recognize that some victories already achieved in motion practice or by establishing jurisdiction can be valuable to the organization without their taking the full risk of “winner take all” litigation.
Finally, a compromise that serves the health and welfare of the immediate community can bring the NGO broader attention if one component of the settlement is a public announcement that the NGO assisted the claimants in achieving a satisfactory sustainable result. Early on in crafting the blueprint of a settlement, it is important for parties jointly to note that a negotiated public statement will be included in their agreement.
Government participants, like NGOs, generally have long term goals. The challenges are different. One benefit of the mediation process, confidentiality, is not available when governmental officials must follow notice, public meeting and FOIA requirements. The government may use a private attorney in the negotiation to allow for confidential discussions. Still,that lawyer is unlikely to have settlement authority and will have to return to the governmental agency or council for deliberations before the next step can be taken. Sometimes regulatory compliance means that the outcome itself can be no more than agency commitment to consider a matter. The negotiator is unlikely to want to predict the agency’s ultimate position, but the mediator can assure private parties that the government’s deliberation process and inevitable delay is not sign of disrespect and manipulation. With the assistance of counsel, the mediator can explain the approval process and help interpret the government’s reticence or apparent lack of commitment.
Both government and NGO parties may ordinarily use litigation to enforce the law or promote policy. Resolving the dispute and “getting on with one’s life,” the typical mediator mantra, has less appeal hen one is using litigation to justify the existence of the NGO or agency.
About the author:
Lizbeth Hasse, a Fellow with the Chartered Institute of Arbitrators, has been an active mediator, arbitrator and special master in high value commercial, international and intellectual property law matters, as well as human rights and environmental disputes worldwide.