Formal Mediation in Intergovernmental Disputes: Municipal Annexation Negotiations in Virginia

Abstract

The course of important disputes between local governments usually involves an interplay between attempts at negotiation and legal positioning before courts or before state administrative agencies. Though local public officials may actively seek to negotiate settlements to interjurisdictional disputes, they are often constrained by the difficulties of face-to-face bargaining over local resources. In interjurisdictional disputes where significant issues are at stake and adversarial public positions have been taken, direct negotiations may be particularly difficult to sustain. Where tried, loosely structured negotiations may be easily disrupted by interpersonal confrontations as the parties employ adversarial strategies to win the negotiation. Charges of a lack of trust and good faith may follow these confrontations, creating further impasses and threatening breakdown of negotiations. In these situations court decisions or state-level administrative adjudications may appear the only recourse. Thus, in many local public disputes, unregulated dispute dynamics move the parties toward litigation and externally imposed conditions of dispute settlement despite the parties' interests in settling the issues through negotiation.' Since 1980, independent mediators have worked with a Virginia state agency to assist cities, towns, and counties in conducting negotiations in major interlocal disputes. The agency, Virginia's Commission on Local Government, has defined a context for mediator entry into highly politicized local disputes, and the mediators have developed a practice supporting policy negotiations among elected and appointed officials to settle disputes that traditionally had been resolved through protracted and expensive litigation.2 The practical model of an interjurisdictional mediation process that has evolved brings political, administrative, and legal professionals together in structured negotiating environments to deal with complex political and technical issues. The goal has been to deepen the negotiations alternative, to make it a more robust process capable of working through adversarial settings to reach locally negotiated settlements to polarized public issues. Virginia's experience suggests that, where state statutes endorse negotiated interjurisdictional settlements in distinct classes of disputes, and where administrative agen* Since 1980, municipalities and counties in Virginia have used mediators in formal annexation negotiations. This paper reports on that innovation. It reviews the statutory and administrative setting for the introduction of state endorsed formal mediation of annexation disputes in Virginia, and it discusses the negotiation processes employed. A brief review is also presented of administrative processes employed in Massachusetts and Wisconsin for structured negotiations and final dispute settlement between local officials and solid and hazardous waste facility site developers.