Up-Front Environmental Mediation

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INCE early 1975, I have been engaged as a technical mediator and analyst by the American Arbitration Association (AAA). The AAA has been funded by the Rockefeller Foundation to mediate disputes that arise out of the application of the Coastal Area Facilities Review Act (CAFRA) to New Jersey. CAFRA covers 18 percent of New Jersey's land area. The state has the short-term power to restrict land uses through a permit process and has a long-term mandate to develop a plan for the coastal zone. My associate in this project is Donald Straus, former president of the AAA and now its research president. Having spent more than a score of years as a mediator, Mr. Straus believes that environmental disputes differ from normal labor disputes in two important ways. First, environmental disputes contain many more complex issues than labor disputes, mainly because there are many parties to environmental disputes. Some of the parties are interested in all aspects of the disputes; others are interested in a single issue. Some parties are well funded; others exist on a shoestring. A second way in which environmental disputes differ from labor disputes is that data used to argue positions in environmental disputes vary from hard information about slopes and soils to subjective judgments about aesthetics. Frequently, qualitative data are more important than quantitative information. These two characteristics of environmental disputes, which Mr. Straus found while trying to mediate environmental disputes such as the one that concerned the West Side Highway in New York City, led us to conclude that last-minute mediation of environmental disputes will probably fail or lead to resolutions completely unsatisfactory to many parties. Once positions harden every bit of information may become the basis of a dispute. We have been trying to mediate potential elements of a dispute before positions can harden. Our focus has been information. As the New Jersey Department of Environmental Protection collects data (on geology, soils, or land use, for example) and indicates how it intends to review and make impact assessments, interested parties are invited to argue the merits of the data and methods. Most of the information has not generated hot disputes. Some of the information and methods have been vigorously contested by the parties, especially by their attorneys who, in my opinion, view our up-front mediation as a threat to later legal gymnastics over the credibility of information. A second phase of our mediation project is to help routinize the coastal zone planning process. To this end, we have designed a man-computer interactive system that is being demonstrated for one area of the coastal zone. The system consists of providing access to a common data and methodology bank. We supply methodology papers on how to estimate noise, water, air, solid waste, and other emissions and on how to project electricity use and make fiscal and other economic impact statements. If the parties agree to our methodological approaches, then disputes that arise out of the use of different methodologies can be avoided. We also have stored ambient economic and environmental data in the computer which will be available to all parties via an interactive terminal and screen. Since much of the data have already been validated, making it available is a means of avoiding disputes among parties who were unaware of an existing, commonly agreed upon information bank. If parties wish to argue the merits of a particular project from the perspective of water quality, we want them to argue the substance of the impacts and not the emission load factors and the existing water quality. At the present time, I would characterize the project as successful yet risky. It has been successful because we have helped to clarify small disagreements that could have led to major disputes. The project remains risky because any or all of the huge number of parties, including state officials, may become unhappy with our front-end brush-fire approach if they find that our efforts prevent them from fighting the traditional adversary dispute with all its weapons.