Local Governments and Alternative Dispute Resolution
Fischer, John, Public Management
New Solutions To Environmental Problems
An increasing number of disagreements are leading to costly and unproductive lawsuits, with governmental agencies playing a major role in many of these conflicts. Whether as an intermediary in a civil dispute, a decision-maker in a land use planning controversy, or a disputant under an environmental regulation, local governments face conflict and can be key players in resolving disputes.
In many cases, parties turn to litigation when they can not solve problems on their own. While judicial action can work well in solving some disputes, in other cases the process of alternative dispute resolution (ADR) can be equally effective, more efficient, and less costly than litigation. Because local governments are inherently problem-solvers, some of the most promising applications of ADR, now and in the future, will concentrate on the public sector and on local governments in particular.
What Is Alternative Dispute Resolution?
ADR refers to a process, outside of the formal court system, that uses a neutral third party (also referred to as a "neutral") to help develop a solution for disputing parties. The practice of using a neutral in dispute resolution is not a new concept and has taken the form of arbitration in many labor and commercial disputes in the United States. ADR has grown and diversified tremendously as a formal process in the last three decades. It is becoming increasingly popular and effective at all levels of government.
ADR processes can be broken down into two primary categories: mediation and arbitration. In mediation, the neutral organizes and runs the process and helps the parties develop solutions. The neutral party has a more structured role in arbitration; here, the arbitrator offers an opinion, which can be either binding or nonbinding.(1) Because of its flexibility, mediation has been favored over arbitration by most local and federal governments and will be the focus of this discussion.
Mediation is sometimes referred to as "assisted negotiation," says Robert Fisher of RESOLVE, a company that handles environmental dispute resolution. The involvement of the mediator ranges from a passive role to an active one, depending on the individuals and issues involved. Mediation offers a major advantage over arbitration in that the parties involved are better able to control both the process and the outcome of their case. Though arbitration can be effective in instances when parties have fixed positions and no room to negotiate, many public disputes offer a middle ground on which parties can reach consensus.
Mediation and Environmental Enforcement Cases
Since the 1970s, mediation also has been an important option in settling disputes over federal environmental regulations. These regulations can cause standoffs between local governments and other governmental agencies--stalemates that turn out to be counterproductive for all involved. In these cases, mediation is a helpful vehicle for working out the controversies in a manner that addresses the concerns of both sides while maintaining cooperative relationships.
The United States Environmental Protection Agency (EPA) was one of the first federal agencies to show an interest in ADR, with the issuance of its 1987 guidance on the "Use of Alternative Dispute Resolution Techniques in Enforcement Actions." Other agencies have followed EPA's lead since the passage of the Administrative Dispute Resolution Act in 1990 and the issuance of an Executive Order in the fall of 1991 encouraging the use of ADR by all federal agencies.
The Sheridan Mediation
A case study prepared by Clean Sites, Inc. (a nonprofit organization that provides services that encourage hazardous waste cleanups), provides an excellent description of the first environmental enforcement case in which EPA used ADR. The city of Sheridan, Wyoming, was cited for violating the Safe Drinking Water Act (SDWA) by supplying 110 households with untreated water. …