The State of the States in Environmental Dispute Resolution:
INTRODUCTION










 

"Don’t litigate, mediate" has been one of the slogans frequently heard by environmental officials across the United States for the last twenty years. This has occurred as perceptions of the negatives associated with adversarial legalism have grown. Frustrated with the costs, delay, and feelings of loss of control that often accompany litigation, many people in both the regulatory and regulated communities have turned to alternative dispute resolution (ADR) techniques and approaches to resolve environmental disputes. Proponents of ADR have seen it as a faster, less costly, more accessible, and more certain way than lawsuits to resolve their disputes.1

This Article reports the findings of a national survey of environmental dispute resolution (EDR) programs in every state, as well as in the District of Columbia. During the summer and fall of 1998, state environmental and dispute resolution officials were telephoned by researchers from the Indiana Conflict Resolution Institute (ICRI) and asked a set of common questions concerning the scope and status of their EDR programs, if any. Interviews averaged one hour in length, and for many states there were multiple interviews with multiple officials. Based on these telephone interviews, state summaries were written that highlight the status of each state’s program or programs, lessons learned, and sources of additional information. State officials had opportunities to comment both on draft state summaries and on the final summaries and often offered clarifying facts and insights for which we are extremely grateful. Any errors or oversights are ours alone. We are also grateful to the William and Flora Hewlett Foundation as well as the Indiana University Strategic Directions Charter Initiative for funding this research and to Professor Lisa Bingham, Director of ICRI, for her work behind the scenes on this project.

While there are several competing definitions of EDR in the literature, this survey has been influenced by definitions offered by James Crowfoot and Julia Wondolleck, as well as Gail Bingham. In their book on community organizations and environmental disputes, Crowfoot and Wondolleck propose the following three characteristics of an EDR process: "voluntary participation by the parties involved in the dispute; . . . direct or ‘face-to-face’ group interaction among the representatives of these parties; and . . . mutual agreement or consensus decisions among the parties on the process to be used and any settlement that may emerge."2  In her analysis of the first decade of experience with EDR, Bingham uses EDR "to refer collectively to a variety of approaches that allow the parties to meet face to face in an effort to reach a mutually acceptable resolution of the issues in a dispute or potentially controversial situation."3  Although there are differences among various EDR approaches, she adds, "all are voluntary processes that involve some form of consensus building, joint problem solving, or negotiation."4

The state summaries in this Article reflect these views of EDR. While the experiences of the states have been uneven, with some states consciously choosing not to pursue EDR options and others struggling with the funding of programs, no state that has a fully operating EDR program has been disappointed. As the individual and cumulative "lessons learned" in this Article indicate, when they are well designed, have the support of the highest administrators in departments and agencies, and are used appropriately, EDR methods and processes offer not only an effective means of resolving disputes, but also a way to improve relationships and build a better foundation for problem-solving. It is our hope that the following report on the state of the states in environmental dispute resolution will serve as a useful exchange of information and ideas that will further these worthwhile goals.

* Principle Investigator: Rosemary O’Leary, Professor, Maxwell Graduate School of Citizenship and Public Affairs, Program for the Analysis and Resolution of Conflict (PARC), Syracuse University; Cofounder of the Indiana Conflict Resolution Institute (ICRI). Senior Project Manager, Editor, and Researcher: Tracy Yandle, ICRI. Project Manager, Editor, and Researcher: Tamilyn Moore, ICRI. ICRI Researchers: Casey Brown, Greg Garvey, Heather Kenny, Margaret McDavid, Lisa-Marie Napoli, Susan Raines, Lori Riggs, Najeeba Syeed, Gina Viola, and Kathleen Weber.   This project was funded by the William and Flora Hewlett Foundation and the Indiana University Strategic Directions Charter Initiative.

Footnotes

1  See Jay Folberg & Alison Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation 7–11 (1984).

2  James E. Crowfoot & Julia M. Wondolleck, Environmental Disputes: Community Involvement in Conflict Resolution 19 (1990).

3  Gail Bingham, Resolving Environmental Disputes: A Decade of Experience 5 (1986).

4  Id.

Indiana Conflict Resolution Institute
Last updated: June 1999
Comments: ICRI Administrator
Copyright 1999 - Indiana University, Bloomington