Disputes over environmental degradation and natural re-sources were a growth industry in the 1970’s. New federal statutes and agencies provided focused ways to address environmental harms, but environmental litigation has remained expensive and involved. Fact-intensive and document-laden, it requires investment in scientific experts and research. Even after expensive investigations, causal connections to pollution and deterioration in an expansive region impacted over time often elude any legal standard. For all these reasons, except perhaps in cases where the environmental dispute is primarily an ideological battle, mediation is increasingly the preferred forum.

Internationally, mediation has been useful for resolving environmental disputes between indigenous populations and companies that extract resources from their neighboring lands (primarily oil, gas and mining companies). Conflicts in these situations are usually emotionally wrought; commercial developers see opponents as impediments to economic growth, technological advance, and other possible benefits of exploiting resources, while locals see a foreign company as responsible for all their ills and financial burdens. Years go by in fights over jurisdiction; companies worry about the biases of foreign courts. Litigation causes opposing parties to shore up value-differences and exaggerate their conflicting interests. Those who truly have long term interests may lack legal standing. Contamination may threaten, but the dispute not yet be ripe for a lawsuit.

Mediation, in contrast, gives participants an opportunity to address uncertainties that litigants would never admit to. They can also craft a resolution with less than complete discovery. Unlike a court ruling, the mediated solution can be a flexible, but binding remediation procedure, designed to include contingency plans that take into account changes in community needs, scientific knowledge and available technology.
In reality, environmental disputes are rarely two-sided. Because the environmental impact of proposed projects, existent operations and /or abandoned enterprises varies over time and space, the “true” constituents are ill-defined. They include stakeholders whose various long and short term interests are sometimes complementary and, other times, at odds, for example:

• Senior residents of the community
• Adult residents with children
• Former community members
• Present or former community members who experienced direct lasting bodily injury from environmental harm
• Younger community members who may or may not continue to live in the affected area
• Business leaders
• Development proponents
• Local or national government representatives
• Industry representatives
• Local NGOs working closely in the region
• Larger NGOs with relevant subject matter targets
• Companies that previously worked in the region and left
• Companies with continuing local interests

The task for the mediator, along with those stakeholders who initiate the process, is to be sure that all relevant groups are engaged. Failing to include a “marginal” group can mean that a carefully crafted resolution is later blocked by a disgruntled party with unforeseen influence and a different agenda.
Are the representatives present those who truly have the authority to speak for and report back to their communities? In working with indigenous communities, the mediator may have a steep learning curve to understand how community communication and authority is structured. The mediator can benefit significantly from the assistance of a neutral in-country consultant (approved by the key parties) to help identify important community features. Otherwise, an enthusiastic mediator working with a particular Amazon Basin population, for example, might find out too late that men don’t speak for the women in their households, or that older community members use silence and evade eye contact to convey their cooperation. Independent interviews of community members and groups can help, as well as periodic sessions to discuss what is being reported back for discussion in the larger community.

While environmental disputes are about long term effects and anticipated future outcomes, they must be decided in the present. Mediation is generally better than litigation in taking the long view, but the process can be just as time-consuming. The difference is that over the period of the dispute, parties are engaged rather than isolated from each other. Those who will have continuing relationships have an opportunity to improve them and find areas of common ground.

Coming in July: Dealing with Governmental Entities and NGOs in Environmental Mediations.

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.