Promoting environmental mediation as a tool for public participation and conflict resolution

Transcription

1 Promoting environmental mediation as a tool for public participation and conflict resolution Implemented by Österreichische Gesellschaft für Umwelt und Technik (ÖGUT) and Regional Environmental Center for Central and Eastern Europe (REC) Case study report on environmental mediation and alternative conflict resolution The project Promoting environmental mediation as a tool for public participation and conflict resolution aims at exploring the range of experiences with mediation and other conflict resolution processes in the environmental sphere and in the field of public planning. Geographically the project focuses on processes in old and new Member States and their neighboring countries. The central outcome of the project will be a case study collection of mediation and alternative conflict resolution processes. The cases will be presented in the internet. The long term objective of the project is to build and strengthen networks, which allow for the exchange of experience of experts involved in such type of procedure and the promotion of conflict resolution instruments and issues within Central and Eastern Europe as well as in Western Europe. With the following case study format we want to collect information and have a comprehensive analysis of environmental mediation cases and other collaborative conflict resolution processes and document the experiences with these instruments. The cases for the study have been selected on the basis of the feedback from the questionnaire distributed in spring The case study report consists of:! a fact sheet! case study analysis The case study reports shall be prepared in accordance with the guidelines which contains related questions and subjects to address.

2 Fact sheet Title of the process Type of procedure! Mediation procedure! Procedure including mediation elements! Other procedure.. Topic area! Urban and land use planning! Water management/supply and distribution! Waste management! Industry, trade, enterprises! Power industry! Telecommunications! Traffic, transportation! General environmental policies (genetic engineering, nuclear policy etc.)! Nature conservation! Neighbourhood conflict! Tourism! Other:.. Initiator(s) Short description of the case Parties and other participants (number of individuals, names of participating public authorities, institutions, interest groups etc.) Client / financial sponsor Procedural guidance by (e.g. professional mediators etc) Geographic dimension! local! regional! state-wide! international! EU-wide

3 Status of process! concluded! in execution Start, end, duration of the process (if still in execution: estimated end)

4 Case study analysis 1. Nature of the conflict! Factual situation (origin and development of conflict, description of initial situation, parties to the conflict and other stakeholders etc.)! Legal issues at stake and legal framework for this special case! Procedural history judicial or administrative proceedings and linkages with the mediation or other alternative dispute resolution processes 2. Parties and other stakeholders to the mediation or other alternative dispute resolution process Please list all parties and other stakeholders and their different roles and interest in the process 3. Mediation/conflict resolution process " initiating the process (who, why, when, how) - how was the preparation made " description and analysis of the process: goals, steps, methodology, stakeholders involvement (development of balance of interests), agreements in different phases, financing, duration (if possible, please provide diagram showing the single steps of the process and the time-line) " description and analysis of the mediator s/facilitator s role and performance in the process " description and analysis of the outcome of the process 4. Related actions and campaigns " public awareness, communication, capacity building, education activities, etc. (for example helping people to participate or take part of the negotiation process) " lobbying and advocacy activities 5. Final outcome of the case " treatment of solution developed through mediation or other process in subsequent judicial or administrative proceedings " final factual situation/ state of implementation at present " developments after conclusion of the process 6. Conclusions/Observations " was the mediation or other alternative dispute resolution method(s) a useful tool as compared to use of administrative or judicial procedures? " main obstacles during the process and measures to overcome them " was the outcome satisfactory to the parties?

5 " lessons learnt recommendations for future processes 7. Comments of participants in process " statements of participants in their own words " contact information of persons involved Contact information of person/s providing information

6 Guideline on case study Please consider the following questions and remarks regarding the seven main items as guidelines and do not refer to them separately! Please describe the project for each item in a whole text! 1. Nature of the conflict Please describe the history of the conflict: How did the conflict arise and how did it evolve? Which stakeholders were involved and what were their different positions? Background information on conflicts: A conflict can be experienced as a simple disagreement, a feeling or discomfort or opposition, and perception of difference from each others, or a competition or incompatibility with others. Conflicts can be a. perceptual, b. emotional, c. behavioral. They can exist on many different levels (intrapersonal, interpersonal, intra- and inter group, international), being about different subject matters (beliefs, values, material, recourses, emotions, roles and responsibilities), being different in terms of social context (neighbors, strangers, etc), in terms of timeframe (long-standing conflict, temporary or repeated conflict, etc). Conflicts vary also by how the different interest groups treat the conflict what kind of strategies, tactics, behaviors they use (avoidance, self-help, peaceful negotiation, agreement, escalation, peace seeking, mediation, etc). Main ways to deal with conflicts are to: - compete (seek to maximize their own self-interest, even at expense of others) - cooperate (seeking the work with the other side(s) to find some middle or compromise grounds) - accommodate (by give all rights to other party) - avoid (by stepping out from the conflict) collaborate (by seeking to work for joint and mutual gains for all parties, without unnecessary harm to others or needless compromise or giving in). Please analyse the nature of the existing conflict from the points of view presented. Please analyse the ways the conflict was handled in the forefront of the mediation/conflict resolution process. Please also provide information about the legal context, and procedural history what kind of judicial or administrative proceedings (arbitration, lawsuit, etc) took place before the conflict resolution process. What was the initial situation at the beginning of the mediation/conflict resolution process?

7 2. Parties and other stakeholders to the mediation or other alternative dispute resolution process Please provide detailed information on the conflicting parties and other stakeholders (Who? How many?). Please describe their different roles in the process (afflicted persons/parties, interest groups as chambers, environmental advocacy groups, professional advisors as e.g. lawyers of afflicted parties, policy-makers, administrative staff, technical or legal experts, mediator/facilitator etc). The openness of the process is usually guaranteed by the involvement of all parties afflicted by the project: the developer, the public authorities (should speak in the name of the collective interest), interest groups and the citizens (as experts in their own interests). Was the process open for all mentioned parties? 3. Mediation/conflict resolution process The cases described shall comply with the one of the following dispute resolution approaches: " mediation understood as a voluntary and informal dispute resolution process in which a neutral mediator, invited by all parties, assist the disputants in: identifying issues of mutual concern, developing options for resolving those issues, and finding resolutions acceptable to all parties. All the involved stakeholders have equal decision rights and the willingness to reach a consensus. " cases where the mediator is not technically independent throughout the whole case (because for example he/she is a lawyer representing one party to the matter), but where the various parties agree that the person will play the role of a mediator in a particular setting. " facilitated negotiations involving an impartial and independent facilitator. Facilitated negotiation uses a panel, established to represent all the major interests affected by a decision, and an experienced mediator or conciliator. Members of the panel are official representatives of the affected interests. Conciliation is intended to improve communications between conflicting parties, allowing them to negotiate conflicting interests. It differs from mediation in that there may not be any formal acceptance of the facilitator s role by the parties. The facilitator is someone skilled in facilitation who is not an interested party in the negotiations. The facilitator not only structures the discussions, but often serves as a focus for negotiations among the parties. The following information should be included under this section: " initiating the process (who, why, when, how). Explain who initiated the process, how did it relate with any legal or administrative review procedure, what were the reasons for making use of this process, how did the conflicting parties come to an agreement to use this process. Who chose the mediator/facilitator? Who finances of the process? What was the scope of the agreement between the parties to use this process? Has there been a written contract? " description and analysis of the process:

8 o goals: explain the goals of the process and what was the estimated outcome of the process itself o steps: describe the main steps of the process and the relevant timeline o methodology: what were the methodical tools (round table discussions, regular consultation meetings among the parties etc.?) o stakeholders involvement: provide information on stakeholders involved in the process: How and by whom were they chosen? Have all relevant stakeholders been participating? What were their interests and how were they met in the process? How did the different stakeholder act in the process? o capacity building activities: were there any legal or institutional capacity building activities implemented support the process? These activities can be for example a roundtable to explain to the people their rights to take part of the decision-making process or environmental mediation workshop where participants perceive a greater understanding of conflict situations and ways to solve them. If yes, by whom and what was the scope? o financing: how was the process financed (covering the costs of mediator, organizing meetings etc.) " description and analysis of the mediator s/facilitator s role (explain if he/she acted independently and impartial) and performance. When analysing this please keep in mind the following: the mediator/facilitator has to protect also the process itself and prohibit parties from using the process to abuse one another or to obtain an advantage in litigation. Ideally, the mediator seeks to help parties define, understand and resolve the problems they wish to address. He encourages them to consider underlying interests rather than positions and helps them generate and assess proposals designed to accommodate those interests. Usually the mediator does not provide assessments, preconditions or proposals but if it is needed he can also do it as well as emphasize options that address underlying interests. He can also help assess proposals in light of the alternatives or suggest ways to collaborate. " description and analysis of the outcome of the process: here you should provide information on what were the results of the alternative dispute resolution process, and how they influenced the solving of the conflict itself. There might be cases when the alternative dispute resolution process was used for a specific aspect of the conflict, but not for the whole conflict. Please explain whether a written agreement has been signed. Has there been a consensus on the final agreement by all parties? If not, who was not satisfied and why? What were the main elements of the agreement, how this agreement was actually put into practice by the parties etc.? 4. Related actions and campaigns Please provide information about related actions and campaigns. Here you should refer to any activity undertaken by any of the parties or stakeholders related to the case itself. These activities could take the form of education, public awareness, demonstrations, campaigning, lobbying etc. You should explain what were the goals of these activities, who initiated them, how they related in time to the alternative dispute resolution process and any relevant administrative or judicial proceedings, how did these actions help or disturb the solving of the conflict?

9 5. Final outcome of the case In situations where the final outcome of the mediation/alternative dispute resolution process was actually not the final outcome of the conflict, please analyse subsequent steps and the final outcome of the case. Has the conflict been completely solved? Please also explain how the use of the alternative dispute resolution process influenced the final outcome of the case. If procedures are still on going please provide information on estimated timeframe and next steps. 6. Conclusions/Observations Please draw conclusions which would be useful to others conducting a multiparty conflict resolution process and managing environmental conflicts. What was the specific benefit of the mediation/conflict resolution procedure? What were the particularities of this procedure? What were the highlights of the process? What do you consider as the major obstacles in the process? Please point out the weaknesses of the processes what went wrong and why - and possible room for improvement of the chosen process and provide a description of the lessons learnt: recommendations for the future, what should be improved next time? What can be considered as good or best practices? 7. Comments of participants in process In order to have a consistent overview of the case please collect few related statements from the participants of the process. Don t re-write their statements; use their own words and expressions. Please provide the contact list of persons involved.