Environmental Mediation: From Competition to Collaboration

The environment and its natural resources are vital sources of livelihoods, income and influence for individuals, communities and countries the world over. The mismanagement or inequitable sharing of resources such as land, water, timber and oil can escalate tensions, ultimately triggering legal disputes or even violent conflict in some cases. It is arguable if not obvious, however, that the most urgent conflict driver requiring attention is environmental degradation. Climate change is intensifying competition over already scarce resources, often having a multiplying or causal effect on conflict. Disputes over natural resources are therefore on the rise, with significant consequences for our planet and populations.

Mediation is commonly defined as a non-adversarial process in which an impartial third party helps parties to resolve a dispute. Its collaborative nature offers the potential to craft solutions that are based on interests rather than rights as defined by law. The process thus permits the flexibility to account for the benefits and challenges that our common resource - the planet - provides. Indeed, mediation processes tend to generate resolutions that are more sustainable than those of adversarial processes because they are voluntary and consensus-based. Participatory processes that lead to lasting solutions are all the more important in environmental disputes wherein climate change literally makes time of the essence.

The predominant means of recourse for disputes is litigation, which involves the costly – both in time and monetary terms - determination of a legal basis for a court to adjudicate on the matter as well as an (arguable) overemphasis on identifying the party/parties at fault. In environmental disputes, however, the need for rapid delivery of concrete and practical solutions is all the greater. Legal proceedings often prove incapable of limiting or restoring damage, the likes of which are key to cases of pollution for example. Moreover, parties in a mediation are not confined to pre-determined ‘court remedies’ but can design agreements that are specifically tailored to their dispute.

Mediation’s comparably faster timeframe, coupled with its confidential nature, boasts an important preventive function. Those responsible for contamination, for example, may be more likely to engage in mediation with the aim of resolving the matter quickly, at low cost and with less media exposure and risk to their reputation. As such, environmental mediation could be a useful tool for the implementation of Corporate Social Responsibility strategies, the popular means by which companies accept responsibility to repair environmental and social damages resulting from their business activities. There is thus potential for a realignment of interest between the disputants in environmental mediation – collaboration rather than a singular pursuit of short-term profit can lead to the better functioning and sustainability of long-term economic activity. Environmental disputes possess a generalisable interest in the survival of the planet and its populations, which transcends and informs canons of self-interest.

Challenges

Despite the amenability of environmental disputes to mediation, it is currently being underutilised for two primary reasons. The first is that conflicts that involve natural resources and/or establishing causal links between climate change and the issues in dispute are often very technical in nature. There is a tendency to require extremely specialised knowledge of the mediator, thus narrowing the availability of suitable candidates and the feasibility of the process. One or more parties may also not trust the technical expertise being put forward - the specialised knowledge itself can be in dispute. Equal access to technical information is undeniably a key resource in environmental disputes. There are ways, however, for this to be provided without requiring the mediator to specialise in the relevant science. In fact, the mediator could utilise the very process of fact-finding - generating common information - as a confidence and consensus-building exercise between the parties. The growing evidence base around climate change, its causes and consequences, also boasts greater potential for an impartial scientific basis to be agreed upon.

The second challenge is giving due regard to the political dimensions of environmental disputes. Mediators need to be aware of the complex network of relationships that exists among resource actors and their interests. The very process of engaging with specific stakeholders to the exclusion of others risks feeding into power disparities among various players. This problem is known to arise when business operations are insufficiently sensitive to the needs of affected communities or perpetuate the marginalisation of groups such as indigenous people, women, or youth. Mediation thus appears to be a natural fit for giving effect to the ‘Aarhus Convention’ on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters.  A nuanced mapping of the conflict dynamics and the range of multifaceted interests involved should enable a mediator to preserve the legitimacy of the process. Mediation can therefore help to shift inflexible zero-sum positions on natural resource ownership – which are populated by asymmetrical resources and power – toward broader considerations such as benefit-sharing, predictable access, and management.

Uptake

The Milan Chamber of Arbitration runs an environmental mediation project for individuals, companies, private entities and public bodies. They are keen to differentiate environmental mediation from their other mediation processes, arguing that the delicacy and complexity of environmental issues demands a preliminary preparatory process with the parties. They note in particular that the plurality of actors – often including public administrations and public entities – can lead to rigid, territorial positions that are best understood by the mediator in advance of the official mediation process. Illustrative examples of the efficacy of their environmental mediation project can be found here. Scottish Mediation also list planning and environment in the range of disputes they cover. In December 2020, draft guidance was issued on the promotion and use of mediation in the Scottish planning system, indicating increasing recognition of the value of mediation in resolving environment-related conflicts.

Conclusion

Environmental disputes are uniquely complex – they are rarely site-specific, clearly-defined, or confined to a small number of stakeholders. As a voluntary and flexible process, mediation is suited to addressing the range of issues at stake in an environmental dispute rather than only those that are litigable. It can also overcome obstacles to participatory conflict management that are embedded in legislative, administrative, and judicial systems. As such, mediation can facilitate creative and informed solutions that account for complementary realities: the local community, the environment and economic activity. This is key to upholding the reality that the environment is a truly communal resource that does not neatly subscribe to the boundaries of private ownership – it necessitates collaboration over competition.

Alice Munnelly, Accredited Mediator and Co-Chair of the Young Mediators’ Group