LAW OFFICES OF DR. BELINDA GAIL QUARTERMAN NOAH, ATTORNEY - INT. ENVIRONMENTAL LAW
LAW OFFICES OF DR. BELINDA GAIL QUARTERMAN NOAH, ATTORNEY -
WEATHER DISASTER MEDIATION

With the last name "Noah" I have heard many jokes about the weather. However, it is no joke that environmental disputes caused by the weather are uniquely well suited to resolution via mediation.  Weather events are frequently significant news events.  These recent weather phenomena include but are not limited to Hurricane Katrina,  the 2011 Japan Tsunami, the 2010 Haiti Earthquake, the Amatrice, Italy Earthquake, and others.

By way of background, the American Arbitration Association (AAA) pioneered mass mediation for weather disasters in 1992 after Hurricane Andrew caused almost $30 billion in damages in my home state of Florida. In weather and climate disputes urgency is usually a factor in the decision to use mediation, In most cases, the victims in such disputes are in need of immediate relief. Mediation can be set up, conducted, and concluded in a few days, whereas most court cases may take months to resolve.  An example of a mediation facility established to address weather-related disputes is the Gulf Coast Claims Facility. This Facility handled the BP/Deepwater Horizon oil spill claims.


Individuals and businesses benefit from the mediation process in such weather-related circumstances because their emergency claims may be paid promptly. Mediation enables the parties to create solutions that are unique and unavailable in a courtroom for weather and climate-related legal disputes. Also, multiple participants may participate in one mediation, who might not otherwise be parties to the same lawsuit. Thus, this eliminates the need for various parties to file multiple lawsuits in sometimes different jurisdictions, which usually results in the inability of the court to provide complete and efficient justice to all of the parties.  Just one mediation can resolve the dispute when the parties agree that the process will settle the conflict. 

ENVIRONMENTAL AND NATURAL RESOURCE MEDIATION SUCCESS

The success of environmental and natural resource mediation is linked to the context of its utilization. If a mediator is required to work in an area of conflict, consideration must be given to the presence of a possible unequal distribution of resource proceeds and benefits, feeble government organizations, limited capacities for dispute resolution, and restrictions on the ability of civil society to demand accountability, transparency, and efficiency. Also, criminal syndicates have a vested interest in ensuring instability to enhance profits from the illicit exploitation of environmental and natural resources.

Thus, whether mediation is the appropriate mechanism depends on the type of resource dispute at hand. The nature of the conflict determines the degree to which mediation is appropriate. For example, using mediation as a useful tool requires the capacity to adapt it to the specificity of natural resource conflicts on the one hand and a complete comprehension of its limitations on the other.

Hence, mediation will most likely fail when it is applied to conflicts ill-suited  to a negotiated settlement. When the mediation fails it is likely to result in a deterioration of the dispute and a potential loss of reputation for the mediator and other actors in the mediation process.

On the other hand, if the parties are entrenched in their respective positions and at a stalemate mediation may be the appropriate avenue. In addition, mediation provides the opportunity to address appropriate scientific and technical information unique to environmental and natural resource issues. Also, mediation is appropriate to bring about a fair distribution of benefits within the community and to help build collaborative community relationships across the broad spectrum of involved groups from the local, regional, national, and international spheres.

FOUR PHASES OF THE MEDIATION PROCESS

    Mediation of natural resource and environmental disputes may take place in conjunction with other peaceful settlement tools. The negotiation process engages groups of actors at various levels and beyond the immediate parties to the dispute. The four phases of the mediation process are assessment, pre-negotiation preparedness, negotiation, and implementation. 
     The first phase of the mediation process is an assessment of all aspects of the conflict dynamic in order to determine whether a mediated approach is appropriate and likely to culminate into an agreement. Depending on the context, it may be conducted by mediation facilitator organization rather than by a mediator. Various conflict assessment tools have been developed to help mediators assess the context. At a minimum, this step involves an understanding of what the conflict is about; who the actors are; what the larger context is; and where the sources of power and leverage lie. 
     The assessment should first establish whether suitable conditions exist for mediation. During the assessment, the mediation facilitator organization or a potential mediator also begins thinking about how the mediation process needs to be designed to maximize the chances of success.
     The assessment step examines the nature of the conflict, the parties involved; the impact on the community as a whole; and where the center of influence and leverage lie. During the assessment, the mediation facilitator organization also begins contemplating the individual profile of a possible mediator and how the mediation process blueprint can enhance the mediation's success. 
     The nature of the general issues examined in an assessment include the following: 
•    The actors, their concerns, their relationships with each other, and their ability to engage; 
•    The standing and condition of the pertinent bureaucratic structure for dispute resolution and general governance; 
•    The governmental, class, and environmental circumstances; 
•    Possible starting points to begin the mediation process; 
•    Possible elements of process design from each actor's viewpoint. 
     An assessment entails a combination of in-office research and fieldwork, often focusing on discussions with the stakeholders. It is important to communicate directly with a variety of the stakeholders to ensure a clear and unambiguous comprehension of the dispute. This process enhances ownership of the anticipated mediation objectives. The parties conducting the mediation assessment must interact with a variety of actors. Such players may include prominent officials, government bureaucrats, civil society and local representatives, business sector actors, parties knowledgeable about the dispute, relevant technical experts, and those whose voices are usually not heard such as the youth, armed groups, dissidents, etc. 

A CAST OF POWERFUL PERSONALITIES

Environmental and natural resource conflicts may consist of a cast of powerful personalities. These individuals are frequently involved in the mediation process at several stages during the dispute resolution period.   

These stages may be official or unofficial in scope.  The official stage will involve communication among the key players involved in the dispute or their agents. 

The unofficial communication stage among the players or their agents may take place at public participation forums and through dialog. Communication among non-governmental personalities and community organizers and leaders also is part of the unofficial process.

A mediation plan of action for environmental and natural resources may be implemented, focusing on participants at various levels.  The plan of action should fit seamlessly within the overall mediation goals. A plan of action should be in place that addresses what individuals will broach certain mediation topics and at what time during the mediation process. 

SCRIPTING THE MEDIATION PROCESS

In scripting the mediation process, the various roles may include supporters, mentors, and organizers. Mentors are those who typically decide to launch the mediation initiative. They tend to appoint a convener and a mediator. 

The organizer is the individual or organization who invites the parties to the mediation. The organizer will add authority and capability to permit the participants to embrace the process. 

Supporters provide funding for the mediation and can come from a variety of fronts, such as domestic or international organizations or local state or federal governments. 

Mediating natural resource disputes include certain unusual components that the mediator should note such as power domination by one of the parties. Remember, the key objective of mediation is for all of the parties to come out better than they would have if they had not entered into mediation.  Thus, major power differences may mean that mediation is not the best mechanism to settle the dispute

NATURAL RESOURCE MEDIATORS

Concerning natural resources mediation, mediators may be selected because of their limited knowledge of natural resources while relying on a technical support team of natural resource specialists. On the other hand. a mediator with a solid technical background on natural resource-related issues may be appointed. The type of mediators and support personnel used depends on the nature of the mediation, the objectives, the complexity, and the needs of the parties.

A mediator may enter a dispute by one or more of the parties contacting the mediator directly, a secondary party refers the mediator to the parties, a mediator initiates the intervention directly, or a formal authority of some kind appoints the mediator.

Regardless of the means of entry, a mediator has to accomplish specific tasks relatively quickly, establish credibility, build a harmonious relationship with the parties, instruct the principal parties about the mediation process, and get consent from the parties to begin mediation. 

The timing of the commencement of mediation is contingent on the type of dispute and is normally assessed on a case-by-case basis. Deciding whether a mediation intervention is ripe is an important issue that depends on the specifics of the conflict at hand. Some mediators believe that early intervention has the advantages of alleviating polarization on issues, avoiding unnecessary hostility and emotional damage between the parties, and preventing energy-draining conflict escalation. Other mediators believe that later interventions can also be beneficial, as the parties may see their options more clearly and be more inclined to negotiate after having tested their coercive power or expressed their frustration. 

MEDIATORS VARIOUS ROLES

Mediators may play various roles dependent upon the relationship they may have with the parties involved in the conflict.  For example, the different types of mediator roles include insider mediators, authoritative mediators, and independent mediators. Such mediators may be engaged in natural resource mediation. The various roles may overlap during a particular assignment and may involve differing components of each of these functions at different moments during the mediation.

When the parties to the mediation already know the mediators, they are considered insider mediators. Such individuals are usually well-respected within the community and their impartiality and legitimacy based on such status. The insider mediators are looked upon as fair and trustworthy mediators. They may be a religious leader, a community figure, a respected elder, or other reputable members of the community. They leverage insider information, knowledge, and understanding of community, cultural, social, and interpersonal interactions to reach and enforce resolutions. In addition to sometimes being a part of the implementation process, they have the tendency to focus on maintaining a cohesive and vibrant community as an essential component of any resolution. 

The authoritative mediators include those with authority based on status, reputation, education, or position.  They may have some relationship to power with respect to the parties. This authority may be used to set or guide the framework of the mediation procedures, the substantive aspects of the decisions or details of enforcement.  In some cases, such mediators may occupy a senior position in a managerial or administrative organization. Impartiality is not absolute regarding the outcome because in some cases the authoritative mediators may have a recognized interest regarding individual components of the resolution.

An impartial third party is an independent mediator who has no connection to the parties to the dispute before appointment as the mediator. The parties accept and engage the mediator through agreement.  The independent mediator's role is to assist the parties through a voluntary procedure to reach a mutually agreeable resolution.  

NATURAL RESOURCE CONFLICTS

The term ‘natural resources’ refers to oil, forests, minerals, fertile land, and water that appear in the natural environment and are amenable to utilization as an economic enhancement. These resources frequently represent an important source of income and power; land, in particular, is essential to the livelihoods of millions of people. When poorly managed, distributed or controlled in an unfair or unequal manner, natural resources can also be a primary cause of conflict or instability. The features of natural resource conflicts most pertinent to mediation practitioners are noted below. 

Conflicts involving natural resources are typically categorized according to the primary resource involved and to the main conflict driver. Typical resource categories include extractive resources (e.g., hydrocarbons, minerals, gemstones, and timber), land, and water. Of course, many conflicts involve the interplay of more than one type of resource. Cases relating to natural resource conflict issues commonly include conflict over the ownership of the resources; conflict over the access to the resource; conflict over decision making associated with resource management; and conflict over the distribution of resource revenues as well as other benefits and burdens.

PRECURSOR TO CONFLICT

A precursor to violent conflict and tensions around the world is the fight over incredibly valuable natural resources such as metals, oil, water, land, timber and minerals.  Such natural resources must be managed properly to ease tensions and reduce pre-existing conflicts. 

The rise in populations throughout the world is playing an important role in the fight over natural resources. Thus,  it is important that a proactive approach is used to introduce mediation as a valuable tool to mitigate and resolve these disputes. 

Mediation as a voluntary and consensus-based mechanism will lead to long-lasting and sustainable outcomes as it relates to natural resources. Natural resources are transboundary in many cases. Thus, the benefits of the resources move across societal, communal, national and tribal boundaries. 

As a starting point, I will offer in future postings a way that we can resolve natural resource conflicts through various phases of mediation.

MEDIATION AS ALTERNATIVE 

Mediation as an alternative to adjudication on the merits is available in environmental law cases to reduce transaction cost and to provide more equitable results for all of the parties. Mediation is defined as the use of a third party to help resolve disputes between two or more parties. Many international environmental law treaties have specific options for the use of mediation to settle disputes.

Alternative Dispute Resolution (ADR) encompasses not just mediation but also negotiation, facilitation, arbitration, and conciliation. ADR is voluntary. Thus control over their agreement remains with the parties. During mediation, the ADR above techniques may be used to resolve the dispute. 

In recent years, there has been a growing awareness of environmental conflicts as the engines of violence and conflict. Hence, mediation is an effective tool for resolving disputes concerning natural resources. This blog will provide information on the mediation process for environmental and natural resource disputes of a localized or transboundary nature, so please stay tuned!