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STATE INSTITUTIONALIZED ENVIRONMENTAL MEDIATION IN MICHIGAN:
APPROPRIATE OR INAPPROPRIATE?

BY

NICHOLAS PAUL WHITE

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE

DEPARTMENT OF RESOURCE DEVELOPMENT

1998

ABSTRACT

STATE INSTITUTIONALIZED ENVIRONMENTAL MEDIATION IN MICHIGAN:
APPROPRIATE OR INAPPROPRIATE?

By
Nicholas Paul White

Some states have institutionalized environmental mediation as one way of
addressing complex natural resource conflicts. This thesis explores the question, "Is it
appropriate for Michigan to institutionalize an environmental mediation program?"
Every state is difi‘erent in its political, economic, social, and environmental character.
The variance among states rmkes it impossible to generalize how well a program might
work from one state to the next. Hence, the question of appropriateness of having an
institutionalized environmental mediation program will be studied through an exploratory
analysis with the following criteria: cost efi’ectiveness, time efliciency, existence of
champions or adversaries, stakeholder perception of environmental mediation,
stakeholder support or opposition to institutionalization of environmental mediation,
funding availability, availability of skilled environmental mediators, and review of
current literature. A survey and focus group are used to ascertain each identified
stakeholders private and public position regarding appropriateness of institutionalizing
environmental mediation in Michigan. If a champion emerges in the fixture, the research
indicates that institutionalization of environmental mediation by the state of Michigan

would be appropriate.

For those that have the courage to work for resolution

ACKNOWLEDGEMENTS

I wish to express my gratitude to family and friends who provided moral support
throughout my pursuit of this master degree.

Thank you to my committee members, who each played different roles in the
formation and completion of this thesis. Dr. Witter’s continued faith in my ability helped

me to endure this process.

iv

TABLE OF CONTENTS

LIST OF TABLES ................................................................................. vii
LIST OF FIGURES ............................................................................... viii
DEFINITIONS ....................................................................................... 1
CHAPTER 1
INTRODUCTION ................................................................................... 3
Problem Area. ............................................................................... 5
Michigan ..................................................................................... 6
Problem Statement .......................................................................... 7
Literature ..................................................................................... 8
General Mediation Theory ........................................................ 9
Environmental Mediation ....................................................... 10
Institutionalization of Environmental Mediation ............................. 11
Research Design ........................................................................... 12
Contributions of the Research ............................................................ 13
Organimtion of Thesis .................................................................... 14
CHAPTER 2
LIETERATURE REVIEW ........................................................................ 15
Background ................................................................................. 15
Results of ADR ............................................................................ 18
Institutionalimtion ........................................................................ 23
Experiences of Other States .............................................................. 28
Florida .............................................................................. 29
Hawai’i ............................................................................. 32
Montana ........................................................................... 36
CHAPTER 3
MICHIGAN ......................................................................................... 39
Mediation ................................................................................... 39
Natural Resources ......................................................................... 41
Michigan Environmental Protection Act (MEPA) .................................... 43
CHAPTER 4
RESEARCH METHODS ......................................................................... 46
Survey ....................................................................................... 46
Focus Group ................................................................................ 50
Confidentiality ............................................................................. 53

CHAPTERS

FINDINGS .......................................................................................... 54
Survey ....................................................................................... 54
Focus Group ................................................................................ 61

CHAPTER 6

CONCLUSIONS & RECOMMENDATIONS ................................................. 69
Cost & Time Effectiveness ............................................................... 69
Existence of Champions or Adversaries ................................................ 70
Stakeholder Perception of Environmental Mediation ................................. 71
Stakeholder Support or Opposition to Institutionalization of Environmental

Mediation .......................................................................... 72

Funding Availability ...................................................................... 73
Availability of Skilled Environmental Mediators ..................................... 74
Question Raised by Literature Review ................................................. 75
Recommendation .......................................................................... 75

APPENDDI A

SURVEY ............................................................................................ 79

APPENDIX B

FOCUS GROUP .................................................................................... 82

APPENDIX C

FOCUS GROUP DEFINITIONS ................................................................ 84

BIBLIOGRAPHY .................................................................................. 86

GENERAL REFERENCES ....................................................................... 88

vi

LIST OF TABLES

Tablel Survey Question #3 ...................................................................... 54
Table 2 Survey Question #4 ...................................................................... 55
Table3 SurveyQuestion#5 ............. 55
Table 4 Survey Question #6 ...................................................................... 56
Table 5 Survey Question #7 ...................................................................... 57
Table 6 Survey Question #8 ...................................................................... 57
Table 7 Survey Question #9 ...................................................................... 58
Table 8 Survey Question #10 ..................................................................... 58
Table 9 Survey Question #11 ..................................................................... 58
Table 10 Survey Question #12 ................................................................... 59

vii

LIST OF FIGURES

Figure 1 Pre Focus Group Graph ................................................................ 67
Figure 2 Post Focus Group Graph ............................................................... 67

viii

Definitions

Alternative Dispute Resolution (ADR) refers to theories and processes used to
address conflicts that are different from traditional dispute resolution mechanisms
(litigation, administrative appeal, and political influence). Examples of ADR techniques
include mediation, facilitation, arbitration, consensus building, and policy dialogues.

Mediation according to Bacow and Wheeler is "one of several mechanisms
available to disputants who wish to use a neutral third party to assist in achieving
settlement. These mechanism are differentiated by their degree of procedural formality
and the role played by the neutral third party in influencing the final settlement." (1987, p.
156) Mediation is a process that utilizes a neutral third party to promote communication
and resolution by the disputing parties. In contrast to mediation, a judge (neutral third
party) is bound by law and makes a ruling that is binding. A mediator does not make a
ruling, but assists disputants in a. resolution process. Typically the mediation is not bound
by legal precedent, but by the rules thatthe parties and mediator agree upon.

Arbitration is a process where disputants agree to present their conflict (testimony
and evidence) to a neutral third party and abide by the arbitrator’s decision. Though the
arbitrator's decision is normally legally binding, the decision is not necessarily based on
law. Issues of equability and "wise decision" are usually incorporated into the decision
process.

Environmental mediation refers to mediation processes and techniques as applied
to natural resource conflicts. Though the term includes mediation, a specific form of
ADR, environmental mediation is also used loosely to refer to facilitation, consensus

building, and policy dialogues. In this paper environmental conflict management will be

used to refer to ADR techniques as applied to natural resource conflicts. Environmental
mediation refers to the specific process of mediation as applied to natural resource
conflicts.

For the purpose of this study, Institutionalization of environmental mediation
refers to the creation of a formal program sanctioned and receiving at least partial funding
from the State of Michigan. Other states have institutionalized environmental mediation
by either creating an official office housed in the Governor’s office, in a state court
system, in a state agency such as the Department of Environmental Quality (DEQ), or an

office within a state university.

Chapter 1

Introduction

Traditional conflict resolution through the judicial system has proven to require
vast economic resources and time to address natural resource conflict problems (Bacow
and Wheeler, 1987). Industry and environmental organizations face large economic
barriers to fund litigation, while taxpayers money is spent to litigate cases that are brought
by the state, counties, and local government to enforce regulations. Taxpayers also have
litigation costs when the government is sued and must defend newly enacted regulations
that other parties feel are too strict or violate their rights. Finally, taxpayers must pay
litigation fees when the government is sued by another party for not enforcing
regulations. In contrast, institutionalized environmental mediation has been shown to
cost less and successfully resolve environmental disputes (Sipe and Stiftel, 1995).

In the United States, three methods for'dealing with conflict have been developed.
The first is the judicial system (file a lawsuit); second is to ask a government agency to
address the conflict (engaging in administrative appeals within the agency); and third is to
use political power to have local, state, and federal laws enacted or changed to resolve the
dispute (Susskind and Cruikshank, 1987). These traditional ways of dealing with
conflicts have been effective and appropriate much of the time. However, there have also
been times when traditional conflict resolution techniques have not been effective. One
such example is the Storm King dispute. This natural resource conflict utilized all three
forms of traditional conflict resolution. For nearly fourteen years, the involved parties

were engaged in their dispute with no resolution expected in the near future. It was not

until the parties used alternative dispute resolution techniques that a mutually agreed
upon resolution was achieved (Talbot, 1983).

The last few decades have given rise to an alternative to traditional dispute
resolution commonly referred to as Alternative Dispute Resolution (ADR). ADR
techniques are now being used in many different fields: divorce mediation, labor
conflicts, resolving internal staff conflicts, agricultural mediation, victim offender
programs, community development, and natural resource disputes. As a result of
dissatisfaction with the traditional ways of dealing with conflict the field of ADR has
continued to grow (Folger & Jones, 1994).

ADR in the United States can trace its roots to the field of international diplomacy
(Beckenbaugh, 1997). For over two centuries Americans have been experimenting and
refining negotiation and dispute resolution techniques to deal with international conflict.
With the industrialization of the United States and the resulting conflict between factory
owners (management) and workers (unions) ADR techniques were applied domestically
to labor negotiations and arbitration (Kressel, Pruitt & Associates, 1989). Today, many
Americans have heard of mediation (one type of ADR) because of labor disputes.
Recently, the news media frequently references federal mediators assisting with United
Parcel Service and General Motors strike negotiations.

Since labor mediation and international diplomacy have been used in America for
many years there is a fair amount of scholarly literature and research available. However,
this thesis will focus on a newer field, commonly known as environmental mediation.
Environmental mediation is a form of ADR that can be traced back to the 1970’s

(Crowfoot and Wondolleck, 1990). Since this field is still relatively new there is a

limited amount of literature. The literature that does exist has predominately been driven
by practitioners.

Problem Area

One reason the field of ADR and environmental mediation has grown is the
dissatisfaction with the inability of traditional dispute resolution techniques to address
conflicts. It can take years and even decades to resolve complex natural resource disputes
through the judicial, legislative, or administrative appeals process. In addition to
requiring time, monetary costs can be high due to legal fees and increased project costs
due to inflation delays in production and construction. Finally, there are times when
traditional dispute resolution, such as a lawsuit, is not capable of creating a resolution.
The United State’s judicial system is designed to make rulings based on points of law and
judicial precedent, not to look for a solution that is mutually beneficial for the litigants.

In contrast, environmental mdiation has been designed to allow parities to seek mutually
beneficial solutions if they so choose. Additionally, environmental mediation can result
in saved time and money (Susskind, 1987).

Based on the benefits that mediation has produced, individual states began to
formalize the process of environmental mediation. This formalization of environmental
mediation resulted in the institutionalization of environmental mediation by state
governments. Susskind (1987); Sipe and Stiftel (1995); Kressel, Pnritt and Associates
(1989) have shown that state institutionalized environmental mediation programs have
been beneficial. Since 1984, state programs have lasted through multiple gubernatorial

administrations, changes in party control of legislative bodies, and an economic

recession. The longevity is an additional indicator that state mediation programs can be
effective and are valued by states.
Michigan

Like other states, Michigan has struggled with balancing industrial growth and
natural resource management. Michigan has approximately 88 superfund sites in
Michigan (DEQ, 1997). The second largest revenue in Michigan is agricultural
production, yet Michigan has lost approximately 1,000,000 acres of agricultural land in
the last decade (Michigan Department of Agriculture, 1997). Michigan is surrounded by
the world’s largest source of fresh water yet the United States Environmental Protection
Agency (EPA) has issued a human consumption advisory for fish caught in the great
lakes (EPA, 1997). Michiganders have traditionally relied on Michigan government to
resolve natural resource conflicts; Department of Environmental Quality (DEQ),
Department of Natural Resources (DNR), and Michigan Department of Agriculture
(MDA). Over the last few decades both environmentalists and industrialists have
expressed frustration with Michigan’s traditional way of dealing with natural resource
conflicts.

Michigan’s executive and legislative bodies are politically split. The Governor is
a second term Republican, seeking a third term. Both the Democrats and Republicans
generally view the Governor as a powerful individual. In the past, Governor Engler has
not been afraid to engage in political battles in order to accomplish his goals. The
Michigan Senate is also controlled by Republicans, 22 to 16. The Michigan House of
Representatives is under Democratic control, 57 to 53. This political division makes

Michigan unique politically.

In 1995, Governor Engler split the then DNR into two separate agencies, DNR
and DEQ. This resulted in pollution management and most regulatory divisions (DEQ)
being separated from flora and fauna management (DNR). The Governor touted this split
as an action that addressed complaints of inefficiency and a slow permitting process.
Environmental groups said it was a political maneuver to weaken environmental
protection and enforcement. Currently industry and environmental groups are dissatisfied
over the amount of regulation and the amount of time and resources it takes to resolve
regulation conflicts.

"In 1986 the Michigan Citizens Commission to Improve the Courts recognized
Alternative Dispute Resolution methods and encouraged the courts to support such
services. The Community Dispute Resolution Program (CDRP) was established by 1988
PA 260 to help fund community dispute resolution centers which provide conciliation,
mediation, or other forms and techniques of voluntary dispute resolution to persons as an
alternative to the judicial process." (Michigan Mediation Training Manual, 1994).
However, community dispute centers do not have staff trained to address environmental
conflicts or the mandate to do so. Hence, the institutionalized community mediation
program addresses neighborhood, school, human service agency, business, and court
referred disputes.

Problem Statement

Even though environmental mediation has been institutionalized by some states
(FL, HI, and MO are reviewed in this research), it is not clear if it is appropriate for the

State of Michigan. Every state is different in its political, economic, social, and

environmental character. The variance among states makes it impossible to generalize
how well a program might work from one state to the next.

Since the State of Michigan’s traditional natural resource conflict management
methods have not resolved some current and pending conflicts, this thesis studies the
question, "Is it appropriate for Michigan to institutionalize an environmental mediation
program? " As stated earlier, research has shown that institutionalized environmental
mediation programs have resulted in savings of time and money. Hence, the question of
appropriateness will be analyzed with the following criteria: cost effectiveness, time
efficiency, existence of champions or adversaries, stakeholder perception of
environmental mediation, stakeholder support or opposition to institutionalization of
environmental mediation, funding availability, availability of skilled individuals
mediators, and review of current literature. The political, social, and environmental
complexities involved in the question of appmpriateness prevent this study from
providing a definitive answer. However, this study will "fill a knowledge gap" that
currently exists.

Literature

The United States has seen an increase in ADR for addressing conflicts. "In the
past ten years, there has been a quiet revolution in the field, and formal mediation now
plays an increasing role in virtually every significant area of social conflict." (Kressel,
Pruitt, & Associates, 1989, p. 2) Since domestic mediation has grown quickly, traditional
research centers (universities) were not generating theory proportionate to the growing
need. A few academicians from various fields, such as urban planning and natural

resource policy have initiated research programs. The result of the theoretical void is a

field driven by practitioners. In the last decade there has been an increase in scholarly
research, yet this research is still coming from a variety of fields; communication, urban

planning, public policy, natural resource policy, and resource development.

General Mediation Theog

New Directions in Mediation, edited by Folger and Jones (1994), reviews the
increased use of mediation and ADR process in America. "Mediation and ADR are
becoming institutionalized. For family and marital disputes several states now require
mediation for all custody issues in divorce cases." (Folger & Jones, 1994, p. viii) The
increased use of mediation is attributed to social changes, support by bar associations, and
increased public awareness from high profile international and labor interventions.

The contextual nature of mediation is explored in New Directiggs 10' Mediatio ,
particularly how different communication techniques can influence the outcome of
disputes. The concept that contextual factors are crucial to mediating the mediation
process outcome has influenced the design of this study, resulting in a contextual
paradigm. A strictly quantitative approach could provide beneficial insight, but it would
ignore the importance of the context in which institutionalization of mediation occurs.

Even though New Directions in Mg'ation does not discuss environmental
mediation, the studies and conceptual frameworks are appropriate for environmental
mediation. The judicial system is a structured system that allows disputes to be addressed
in a predictable manner, yet this can prevent the opportunity for exploration of creative
resolutions. In particular, the judicial system typically is bound by legal precedent and
law, making judgment for one party and against another. As Folger and Jones discuss,

mediation allows the parties to search for new possibilities and explore resolutions that

may not exist under the judicial system. This is particularly appropriate for natural
resource disputes. Many natural resource disputes have complex scientific, social,
economic, and policy implications. A court ruling usually focuses around a particular
law; was an environmental impact statement done, appropriate public input allowed, or
did a natural resource regulating agency act arbitrarily and capriciously. The rulings do
not necessarily address the social, economic or policy implications of the conflict.
Mediation can allow parties to explore the substantive issues that created the conflict.
Environmental Mediation

In Environmental Dispute Resolution, the authors use multiple case studies to
explore the nature of environmental conflicts, practical experiences of mediators,
opportunities and obstacles for environmental mediation, and theory (Bacow and
Wheeler, 1987). Through discussion of the case studies it is shown that resolving
environmental conflicts with the judicial system can be financially costly and a time
consuming. Though environmental mediation is not a panacea, it can provide resolution
to some environmental conflicts while saving time, money and addressing the concerns of
all disputing parities.

Susskind and Cruikshank (1987) in Breaking the Impasse outline theory and
practice of dispute resolution. They outline traditional dispute resolution (judicial,
administrative appeal, and political change) and alternative dispute resolution
(facilitation, mediation, arbitration, consensus building). Additionally, they look at the
appropriate and inappropriate circumstances in which to use mediation.

Sipe and Stiftel (1995) use an empirical framework to analyze environmental

mediation. Their study focuses on questions of time and monetary efficiency, as well as a

10

"better quality settlement" (Sipe & Stiftel, 1995, p. 140) in comparison to litigation and
administrative hearings. Florida has institutionalized environmental mediation in two
different programs; circuit court mediation program (since 1987) and a pilot program in
the Department of Environmental Protection. A total of 19 cases were examined, with a
73.3% settlement rate. A survey of the disputants showed that $75,000 (median) was
saved per party. Respondents (89.9%) indicated very or moderate efficiency in terms of
time savings. Sipe and Stiftel’s article is one of the few pieces of research using
quantitative methods in the environmental mediation field.
Institutionalization of Environmental Mediation

Currently the available literature on institutionalization of environmental
mediation is limited. Occasionally a chapter or short article addresses the issue. In m
WWW Chl'istOPhcr MOON (1996)
focuses on the process (structure and implementation) of mediation. However, Moore
concludes his book with an analysis of the future challenges for the field of mediation.
According to Moore, one area of change is the continued movement of mediation from an
ad hoc basis to an institutionalized basis. Moore feels that the process of
institutionalization has been assisted by the more formalized training that mediators have
been receiving, but "mediation must become more highly institutionalized." (Moore,
1996, p. 374) The increased institutionalization will allow the broader public to benefit
through increased accessibility. Finally, Moore identifies areas that he feels need
advancement and which will continue to grow, conflict management and the global
environment is one such area. Moore specifically identifies transboundary conflicts, such

as air pollution and limited water resources (1996, p. 378).

11

Research Design

The Michigan Legislature and the Governor are constitutionally charged with
creating state policy and law. State agencies such as the DEQ, DNR, MDA are charged
with implementing the policies and laws. The legal profession (lawyers, judges, Attorney
General) interprets the laws when questions arise. Through direct and indirect pressure
environmental organizations, Michigan Chamber of Commerce, Michigan Chemical
Council, and other organizations have an ability to influence lawmakers. All of the
aforementioned groups are stakeholders in the question of the appropriateness of
institutionalizing environmental mediation in Michigan and will be studied because of
their stakeholder status.

Each stakeholder group has the power to implement laws or influence the
implementation of laws. Their public and private position is crucial in determining the
appropriateness of institutionalizing environmental mediation in Michigan. The private
position of stakeholders will be studied by using a confidential purposive nonprobability
survey (Appendix A). Purposive nonprobability surveys involves identifying the
population and purposefully surveying specific members of the population, in this case
the leaders and public representatives of the population.

Public position of the stakeholder groups will be ascertained by using a modified
focus group. Cost and time prevent using the standard 6-10 person focus group,
replicated 3-4 times. Instead the focus group will be composed of one representative
from the legislative body, one representative from the DEQ, one representative from the
legal community, one representative from the environmental organizations, and one

representative from the industry. The intent of the focus group is not for one person to

12

represent the entire community. However, each representative has the potential to begin a
public debate of the appropriateness of institutionalizing environmental mediation. With
a diverse group, the public debate has the potential to raise new concerns and ideas
specific to Michigan, issues that would not be raised by the survey, allowing a more

thorough analysis.
Contributions of the Research

The purpose of this study is to examine the appropriateness of institutionalizing
environmental mediation in Michigan. If it is shown that environmental mediation is
appropriate then taxpayers, industry, environmental community, and state agencies could
save time and money that can be used to address other problems. If it is shown that
environmental mediation is inappropriate then taxpayers and state agencies could avoid
wasting time and money by investing in a program that would not be beneficial.
Additionally, industry and the environmental community will not waste their time
participating in a program that would not be as effective as currently available resolution
techniques.

This research provides other states that lack institutionalized environmental
mediation programs with a better understanding of the issues to consider when deciding
on the appropriateness of such a program in their state. "Development (dispute
resolution) on the legislative, executive, and judicial fronts are generally occurring faster
than the research can advance to offer guidance and direction." (Kressel, Pruitt &
Associates, 1989, p. xiii) Since there is very little research literature on the
appropriateness of institutionalizing environmental mediation by states, this research shall

contribute to the scholarly knowledge base and society.

13

Organization of Thesis

This thesis is organized into six chapters. They are Chapter 1 Introduction,
Chapter 2 Literature Review, Chapter 3 Michigan, Chapter 4 Research Methods, Chapter

5 Findings, Chapter 6 Conclusions & Recommendations.

14

Chapter 2

Literature Review

As was stated in the introduction, the field of Alternative Dispute Resolution (in
particular environmental mediation) has grown quickly in the last few decades. As such,
the amount of available scholarly literature is limited in comparison to more established
fields. However, this characteristic of a practitioner driven field is changing as more
research and theory emerges.

Bac und

During the late 1960’s and 1970's the federal government created new
environmental laws such as the National Environmental Policy Act (1969), Endangered
Species Act (197 3), and Clean Water Act (1972). These laws not only provided
government agency with enforcement authority but provided individuals and
organizations with new methods of addressing environmental concerns. Some have
argued that federal and state environmental laws are too restrictive, while others have
argued that the environmental laws are too lax. Regardless of ones point of view
regarding environmental regulation, it is clear that over the last 30 years the courts have
become increasingly involved with environmental conflicts.

In Breaking the Iprpgsg, Susskind and Cruikshank (1987) argue that our society
and public leaders are at an impasse. This impasse exists with environmental conflicts

and other public policy issues.

15

"Four out of every five times the Environmental Protection Agency (EPA)
issues new regulations, its lawyers wind up in court fending off industry’s
claims that the agency is being to tough on them, or fighting
environmentalists’ charges that it is not being tough enough. Other agencies
also find that their judgments are constantly challenged, in many instances
by groups with minimal technical capacity." (Susskind & Cruikshank, 1987,

p. 3.)
Susskind and Cruikshank also provide the examples of other impasses Such as: sighting
problems for prisons, low-income housing, power plants, and hazardous waste treatment
facilities. A prime local example is Michigan’s inability to decide on a location for a low
level radioactive waste facility.

Due to the structure of the judicial system, many environmental suits are decided
on the basis of legality as opposed to the substance of the environmental dispute.
"Unfortunately, the courts are often unwilling (and in many instances, unable) to fashion
remedies that meet the needs of all sides. Simply put, the court’s purpose is to interpret
the law, not to reconcile conflicting interests." (Susskind & Cruikshank, 1987, p. 9)
Additionally, even when a court renders a verdict, an appeal can extend the legal process.

As a result of litigation costs, some agencies and parties have attempted to
compromise. However, in the past the compromise process used was to find a resolution
that only met the involved parties minimum needs. This form of compromise results in
minimal support of the compromise and makes implementation difficult. Often the
parties will end up back in court because they are unsatisfied with the results or the
compromise process breaks down. Yet, compromise does not have to mean that

minimum needs are met, compromise can mean that the parties strive for achieving the

16

highest goals that are acceptable to all parties. Mediation is one method of striving for
the highest goals that are acceptable to all parties (Susskind and Cruikshank, 1987).

In light of the "impasse" that Susskind and Cruikshank argue, they put forward
that there are other options besides litigation, administrative appeals, lobbying, and weak
compromises. Several alternative dispute resolution processes are discussed: negotiated
approaches to consensus building, facilitation, mediation, and nonbinding arbitration.
Throughout the book, case studies of relevant conflicts are woven into the text to provide
practical examples. This approach allows the authors to outline benefits and costs of
ADR and illustrate when ADR may and may not be useful. The authors point out that
there are times when the judicial system may be more appropriate than an alternative
method. One such instance is when "fundamental constitutional rights are at stake”
(Susskind and Cruikshank, 1987, p. 16). Society and individuals typically benefit when
the court system addresses questions of constitutionally such as: abortion, the right to
die, and free speech.

Although Fisher and Ury (1991) do not specifically address environmental
mediation in Getting to Yes: Negotiating Aggment Without Giving In, their work is
useful to look at when considering ADR due to its clarity and level of use. Getting to Yes
(1991) is probably the most widely read (by practitioners and non-practitioners) ADR
book. One of the critical issues looked at in the book is positional bargaining vs.
principled negotiation. The authors state that arguing from a position allows people to
loose sight of their underlying interests. At the same time, compromising between

positions also tends to result in agreements where no one is satisfied. Instead, it is

17

suggested that the reader explore his/her interests, that is, explore how those interest can
be met, and explore the Best Alternative To a Negotiated Agreement (BATNA).
Fisher and Ury (1991) put forth a way of judging negotiations that is useful for

this thesis.

“Any method of negotiation may be fairly judged by three criteria:

It should produce a wise agreement if agreement is possible. It should be

efficient. And it should improve or at least not damage the relationship

between the parties. (A wise agreement can be defined as one that meets

the legitimate interests of each side to the extent possible, resolves

conflicting interests fairly, is durable, and takes community interests into

account)" (p. 4)
Fisher and Ury’s contribution goes beyond providing a succinct book on negotiation. As
a result of the level of readership of their book, Fisher and Ury have begun to change the

way American society views conflict and the techniques used to address conflict.
Results of ADR

An overwhelming majority of the literature that deals with environmental
mediation has relied on qualitative case studies as evidence for the past, current, and
future success of environmental mediation. This thesis was strongly influenced by the
qualitative analysis and case studies of such authors as Susskind, Bacow, Wheeler,
Talbot, Moore, Wondolleck, and Crowfoot. Even though the aforementioned authors are
leaders in the field of environmental mediation research, the qualitative method of case
study for environmental mediation has been questioned. "The literature in this area has
been criticized as biased because it is often written by professional mediators or by
activists interested in promoting its use that the environmental mediation literature is

one of advocacy." (Sipe & Stiftel, 1995, p. 140) The nature of the research, human and

18

environmental conflict, can make quantitative research difficult. However, in light of the
criticism of qualitative methods, both qualitative and quantitative research will be
examined.

In Mediating Environmental Enforcement Disputes: How well does it work?
Sipe & Stiftel (1995) examined "the claims that mediation leads to quicker, cheaper, and
better quality settlements than litigation or administrative hearings." (p. 140) This
research not only provides quantitative research, but is also of particular interest for this
thesis since Sipe &,Stiftel draw part of their environmental mediation cases from
Florida’s institutionalized environmental mediation program. The research examined 19
mediated cases, 14 (74%) settled and 5 (26%) did not achieve a settlement with
mediation. The cases were: 5 dredge and fill, 4 air pollution, 3 domestic waste, 3
hazardous waste, 2 groundwater contamination, and 2 solid waste. The researchers used
mail surveys to collect their data, 65 (71%) response rate.

, Multiple criteria were used to evaluate the mediation settlement. The criteria that
received the highest rating was efliciency in terms of cost, 94.9% responding in the "very"
and "moderate" categories. Efliciency in term of time received 89.8% while how
practical and workable received 87.2%. In regard to the role of a mediator, 84% of the
respondents rated moderately or very helpful for: facilitating group discussion, assisting
parties in stating interests, and helping parties establish rules for reaching decisions. Only
28 (43%) of the respondents answered how much money was saved by not going to court
(staff, legal, and consultant costs). "The median estimated savings was $75,000 per party.
With at least two parties per case this amounts to a median estimated savings of $150,000

per case." (Sipe & Stiftel, 1995, p. 146)

19

The final area of analysis was an evaluation of the environmental mediation
institutional support unit. This analysis has particular relevance since the question
institutionalization is the focus of this thesis.

"For four of the six tasks: (1) explaining what mediation is; (2)

arranging for mediation selection; (3) arranging the premediation meeting;

(6) arranging the mediation, the CRC (state institutionalized provider)

received rating of moderately or very helpful by at least 85% of the

respondents. The two tasks that received the lowest rating were (5)

assisting in contractual issues and (4) helping to evaluate the potential for

using mediation, which received ratings of moderately or very helpful by

62.5% and 71.4% of the respondents, respectively." (Sipe & Stiftel, 1995,

p. 147) .

Sipe & Stiftel’s research shows that environmental mediation can be useful. The
74% settlement rate of mediation in itself is a strong indicator that environmental
mediation is a useful method of dispute resolution. The positive evaluation by the
participants in the mediations provide additional evidence‘that the mediations were worth
while. Finally, the estimated cost savings provide a strong economic argument for
mediation, particularly in a time when many state governments are trying to do more
work with fewer personnel. (Sipe & Stiftel, 1995)

Although the Sipe & Stiftel study puts forth a convincing argument for the use of
environmental mediation, their study is neither conclusive for Florida's mediation
program nor completely transferable to Michigan. The authors admit that one weakness
of their study is the limited number of cases studied. The number does not negate their
findings, but it does prevent clear conclusions from the statistical analysis performed in
the study. Of particular importance to this thesis is that, "investigators have begun

comparing the research results of mediation in varied settings and have found some

similar findings but also some that are contrary, which leads them to the conclusion that

20

some results may be situation specific." (Sipe & Stiftel, 1995, p. 154) Even though Sipe
& Stiftel’s study does not mean that environmental mediation would be appropriate in
Michigan, the results seem to warrant serious exploration of the appropriateness of
environmental mediation.

In Resolving Environmental Disputes (1986) Gail Bingham studied 161
environmental disputes. The cases were drawn on a national level. However, in twenty-
nine of the cases the parties had the objective of improving communication, not finding a
resolution. In the other 132 cases the parties had the objective of reaching a decision or
reaching a recommendation that could be forwarded to the decision-makers. The 132
cases were analyzed in order to determine the success of environmental dispute
resolution. These dispute resolution cases were all voluntary, parties met face to face, a
mediator was involved, and had a goal of reaching a resolution that was acceptable by
both parties. Reaching agreement was defined as a signed written agreement or a verbal
agreement where the parties could articulate the terms of the agreement. The analysis
showed that 78% (103) of the mediated cases reached an agreement.

Implementation of an agreement is a crucial factor to consider when evaluating
environmental mediation. Implementation was broken down into: fully implemented,
partially implemented, and unimplemented. For 32 of the 103 cases, the researcher did
not know if implementation occurred. This left 71 cases with known implementation
results. Full implementation was reported in 70% (50) of the 71 cases. Partial
implementation occurred in 14% (10) of the cases. Unimplemented cases accounted for

15% (1 1) of the cases.

21

Unfortunately the comparative data for other settlement methods was not included
in Bingham’s book. Though a direct comparison cannot be made with litigation, it is
unlikely that 78% of litigated environmental cases result in a decision that is mutually
agreeable to both litigants. Additionally, since 70% of the mediated cases were fully
implemented, there is a positive attribute associated with mediation. Beyond agreement
and implementation rates, mediation typically has other benefits that litigation can lack.
Mediation typically includes improved communication or at a minimum, a better
understanding of the issues by the parties involved.

Bingham goes on to look at different criteria in relationship to the level of
successful agreements. Some of the criteria include: issue in conflict, whether a lawsuit
had been filed, mediations with and without deadlines, and number of parties involved.
In addition to the statistical analysis, the book has qualitative analysis via case studies. In
looking towards the future Bingham suggest some forms that ADR could take: continue
on an ad-hoc basis, expansion of court related programs, government agencies could hire
or assign staff to provide mediation, or hybrid such as university systems providing
mediation ( 1986, p. 150). Bingham concludes with "The first decade of experience with
voluntary dispute resolution alternatives has demonstrated that they often are successful
options for settling many environmental disputes Over the next 10 years, additional
case experience, paired with the creation of institutional mechanisms to encourage the
appropriate use of environmental dispute resolution processes, will provide a stronger
basis for assessing how significant theses processes can be concerning difficult

environmental issues." (1986, p. 167)

Institutionalization

Mediation Research by Kressel, Pruitt and Associates (1989) devote a
chapter to the question of institutionalization of mediation. One of the co-authors of the
chapter, Gerald W. Corrnick, has been an active researcher and practitioner of
environmental mediation for many years. The authors state that their studies suggest that
the ADR community’s perception of a need for institutionalizing mediation is higher than
the perception of a need among policy makers and the general public. This has serious
implications for institutionalizing environmental mediation in Michigan. If stakeholders
do not perceive a need for institutionalized mediation, regardless of the benefits, it may
not be appropriate to institutionalize mediation in Michigan.

The Mediation Research chapter illustrates that the authors believe that something
needs to shift stakeholders from the status quo (judicial system) in order for them to take
the risk of a new conflict resolution method. This issue will not be the sole determinant
of appropriateness in Michigan, but it will be a factor. Other factors discussed include:

"the interests must be represented by key leadership figures who can

effectively and realistically represent their constituents and who can vouch

for any system that is agreed upon there is a need for a strong champion,

with the stature to bring together the key actors and represent the effort to

legislative and other affected interests the process by which the dispute

settlement system is developed should be dominated by principles."

(Kressel, Pruitt, & Associates, 1989, p. 162-163)

Finally, the authors assert that "those considering the development systems should
resist the temptation to import dispute settlement systems that have been successful
elsewhere under similar circumstances or to use theory off the shelf." (Kressel, Pnritt, &

Associates, 1989, p. 164) Hence, there is a need for research to determine if Michigan is

an appropriate place to institutionalized environmental mediation. The authors warn

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"institutionalized use of mediation and negotiation is a potentially beneficial public policy
tool, but one not easily implemented." (Kressel, Pruitt, & Associates, 1989, p. 165)

Lawrence Susskind looks at some of the earliest institutionalized state mediation
programs in Statewide Offices of Mediation: Exgriments in Public Policy (Dec., 1987).
Hawai’i, Massachusetts, Minnesota, Wisconsin and New Jersey all created statewide
mediation programs in 1984. The article reviewed the programs three years after their
creation. Even though these programs were not created for the sole purpose of
institutionalizing environmental mediation, it is worth reviewing the article. The two
issues raised in the article that are of interest to this research are the different ways of
institutionalizing the mediation programs and the discussion on replication of the
institutionalized programs.

The New Jersey program was created in the Department of Public Advocate’s
Division of Citizen Complaints and Dispute Settlement with an advisory board that
provided guidance. The initial staff consisted of an attomey/mediator and two mediators.

“The center has servedas a special master appointed by the state court and

has helped to settle several complex public disputes, including a ten-year

legal battle over the establishment of a regional sewage treatment facility.

The staff has also helped initiate policy dialogue (involving public

officials, citizen action groups, and industry leaders) on siting solid waste

disposal facilities .. .” (Susskind, Dec. 87, p. 3).

The resolution of the above mentioned sewage treatment facility conflict resulted in the
savings of $50 million in construction costs.

The Massachusetts program was created in the Executive Office for
Administration and Finance with an advisory board to provide guidance. The initial staff

consisted of two full-time employees, who mediated multiple conflicts including

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Superfund site clean-up and hazardous waste disposal. In addition to mediations, the
program has also focused on working with state agencies that were considering
alternative dispute resolution.

The Minnesota program was created in the State Planning Agency with an ad hoc
advisory board. The initial number of staff was described as small. Examples of the
program work include:

“The office has helped develop and implement the nation’s first farmer-

lender mediation program within the Department of Agriculture Extension

Program. In its first year, the program has received over 5,000 requests for

mediation from farmers and lenders which have resulted in over 1,500

mediated settlements. The office has played a key role in brokering the

use of mediation in a state-wide herbicide spraying dispute and has

mediated a sewage treatment dispute between two cities.” (Susskind, Dec.

87, p. 3)

The Hawai’i program was created in the Office of the Administrative
Director of the Courts. The program focused on civil court cases and “a major effort to
divert complex civil litigation concerned with public policy into court-sponsored
mediation.” (Susskind, Dec. 87, p. 3) One critical public policy issue that the program
played a facilitative role in was the redrafting of the states “politically sensitive”
(Susskind, Dec. 87, p. 3) water code.

The state of Wisconsin used a uniquely different approach for institutionalizing
mediation. Wisconsin’s Secretary of Labor, Industry and Human Relations (Howard
Bellman) chaired an informal screening panel with two other cabinet members from the
Governor’s office. The panel was responsible for screening which conflicts could be

addressed with alternative dispute resolution techniques. “In 1985, through Bellman’s

intervention, two major statewide disputes between the Department of Natural Resources

25

and Indian tribes over fish and game regulations were mediated. (Susskind, Dec. 87, p.
13) However, when a new Governor took office and a new person was appointed
Secretary of Labor, Industry and Human Relations, the state no longer utilized mediation.

The second area of interest in the Statewide Offices of Mediation: Exmriments in
Public Policy (1987) article is the question of whether or not to replicate the above
mentioned programs in other states. Though aforementioned question was only briefly
discussed, some salient points are worth highlighting. The location of a mediation office
within a state government organizational structure can influence the level of interaction
and what form that interaction takes with the public and within state government. The
importance of location when looking at institutionalization is demonstrated by
Wisconsin’s experience.

Two common elements of the institutionalized programs that the article felt were
worth replicating were the basic goal of serving both public and state dispute resolution
needs and undertaking an educational role. The educational role was not focused just on
the general public, but also within state government. Even though Susskind’s article does
not provide clear answers to the question of the appropriateness of institutionalizing
environmental mediation, the article along with the other literature provides the
framework for an analysis of the question of appropriateness.

Recently, the Society of Professionals in Dispute Resolution (SPIDR)
Environmental/Public Dispute Sector Critical Issues Committee published a report titled
Best Practices for Government Agpncies: Guidelines for Using Collaborative Awment
Seeking Processes (1997). Even though this report does not directly address issues of

institutionalizing environmental mediation it can serve as a useful resource for any state

26

government that is exploring the appropriateness of institutionalizing environmental
mediation. The report provides recommendations that would "help ensure successful use
of collaborative processes for decision-making." (SPIDR, 1997, p. 3) Some of the key
recommendations are explained below.

"An agency should first consider whether a collaborative agreement-seeking
approach is appropriate." (SPIDR, 1997, p. 6) Will an ADR method help the agency
reach its goals and is the method suitable for the conflict? This first recommendation
raises the crucial question; is the agency willing to share in the decision making process
and resolution of the conflict. An internal decision must be made by the agency to
determine if the particular conflict could be resolved most effectively with traditional
methods or ADR methods.

"Stakeholders should be supportive of the process and willing and able to
participate." (SPIDR, 1997, p. 7) For any ADR process to have credibility, the parties
that would be impacted by the decision must participate or not object to the process. "If
some interests are not sufficiently organized or lack resources and these problems cannot
be overcome, the issue should not be addressed through collaborative decision-making."
(SPIDR, 1997 , p. 7)

"Agency leaders should support the process and ensure sufficient resources to
convene the process." (SPIDR, 1997, p. 7) Participants in the ADR process must have
the support and decision making authority of the agency leaders in order to engage in a
substantive process. Additionally, adequate resources should be provided from pre-

negotiation assessment through the final stage of signing an agreement.

27

"The sponsoring agency should ensure the facilitator’s neutrality and
accountability to all participants." (SPIDR, 1997, p. 9) This ties in with the first
recommendation that an agency must decide if it is willing to share in the decision
making process. An ADR resolution that does not develop mutual ownership by all
participants is likely to fail, even if an agreement is reached. To ensure neutrality, some
state institutionalized mediation programs maintain a list of non-govemment mediators
that can be called upon as needed.

"Policies governing these processes should not be overly prescriptive." (SPIDR,
1997, p. 11) SPIDR argues that if participants are forced into an ADR process, this will
create a disincentive for parties to participate and the effectiveness and flexibility of ADR
will be diminished. "Therefore, when legislation, rules and guidelines are developed
concerning these processes, they should be limited to encouraging the use of collaborative
agreement seeking processes, and setting broad standards for their use." (SPIDR, 1997, p.
1 1)

Emriences of Other States

This chapter will review Florida, Hawai’i, and Montana’s institutionalized
mediation programs. The aforementioned states were chosen for four reasons. First, each
state has institutionalized mediation in a different way. Second, all three programs are
involved with environmental mediation. Third, the states are a diverse representation of
the United States of America. Fourth, the combination of the three states represents both
old and new programs. As discussed earlier, it is not appropriate to simply transfer a

program from one state to another. However, a review of other state programs can

provide useful insight into the different forms of institutionalization of environmental
mediation.
Flo—rida

In 1985, the state of Florida enacted growth management legislation. The
subsequent year the Growth Management Advisory Committee recommended that the
state create a conflict resolution center. The Legislature appropriated $125,000 in 1987;
the appropriation resulted in the creation of the Conflict Resolution Consortium (state
institutionalized mediation program) at Florida State University (1988). The first
mediation occurred in 1989. Since those first few years, the Conflict Resolution
Consortium (CRC) has established two regional offices in an effort to provide better
statewide coverage. The CRC’s mission “is to bring Floridians together to build cost-
effective solutions for growth management and community problems through the use of
mediation, facilitation and other collaborative problem-solving approaches.” (Florida
Conflict Resolution Consortium Progress Report, 1992-94, p. 8)

The CRC is housed out of the Florida State University system. The director of the
CRC has stated that “Florida State University’s leadership and support for the CRC by,
providing a neutral home for its service, education and research initiatives, has been
critical to our continuing successes.” (Florida Conflict Resolution Consortium Progress
Report, 1992-94, p. 4) The placing of the CRC in the University system has allowed the
state government to fund the CRC, allowed the CRC to build on already existing
resources and infrastructure, and the CRC can act as a neutral organization even when
dealing with conflicts that involve state government. The CRC’s programs are guided by

an advisory council with a membership of: city officials, citizens, state general counsels,

29

county officials, lawyers, federal officials, university staff, private industry, and
environmental organizations.

The CRC list its services in six categories: public involvement; collaborative
planning; training, education & evaluation; process design & conflict assessment;
facilitation; and mediation. In addition to long term projects, the CRC will enter “into
contractual arrangements for special projects with various public agencies” (Florida
Conflict Resolution Consortium Progress Report, 1992-94, p. 19). In 1990, the CRC and
the Florida Department of Environmental Regulation initiated a pilot mediation program
to use mediation and other ADR tools to resolve environmental enforcement disputes.
The CRC reports that 76.9% had an agreement and that survey respondents reported a
high level of satisfaction. Additionally, “Mediation saved an average $325,000 per case
in staff, legal and consultant costs expected if the case had gone to court.” (Florida
Conflict Resolution Consortium Progress Report, 1992-94, p. 13) In the literature review
chapter the article, Mediating Environmental Enforcement Disputes: How Well Does it
M (1995), by Sipe and Stiftel was reviewed. The article draws its environmental
mediation cases in part from the aforementioned CRC pilot program. There are not
enough cases in the CRC pilot program to formulate any concrete statements. However,
the results of the study are positive and indicate, at a minimum, that environmental
mediation has had a positive impact in Florida.

One thing that has probably helped the CRC to grow in Florida is the relationship
that the CRC has with state government agencies and individuals. In 1992, the Governor

of Florida stated:

30

“I support the Consortium’s focus on negotiated solutions and helping the

state and its citizens make use of problem-solving negotiation processes to

serve a growing population, preserve the quality of life in Florida’s

communities and protect our state’s unique environment. The Consortium
serves as an example of the leadership role the University System can take

in helping our state and its citizens meet the many challenges ahead.”

(Florida Conflict Resolution Consortium Progress Report, 1992-94, p. 7)

Other people that have gone on record for the CRC include the President of the Florida
Audubon Society, Deputy General Counsel for Florida Department of Environmental
Protection, University Faculty and the President, and state and federal Legislators.

In the July 1997 , Leadership Lette , the “Recent CRC Ventures” section reported
the following activities: South Florida and the Everglades, Governor’s Building Codes
Study Commission, Lake County Visioning, Ocean Strategy Roundtable, Southern
EnviroMental Enforcement Network, Big Cypress Bay, Leon County Development
mediations, Haitian dispute resolution. Upcoming ventures: North American Electric
Reliability Council, Department of Business and Professional Regulation Negotiated
Rulemaking Assessment, Affordable Housing Study Commission, Volusia County
Manatee Protection, Key West Base Re-Use Public Involvement, Florida DEP Marine
Patrol, and International Initiatives.

The level of activity of the CRC, continued monetary support, and public support
indicate that the CRC is providing a service that is beneficial for the state of Florida.
There appears to be multiple reasons for the success in the institutionalization of CRC.

The neutral location in the university system provides CRC with two crucial advantages.

31

CRC can work with diverse groups that are in conflict while operating from a neutral
base, even with high profile public controversies. Additionally, CRC’s neutral location
allows it to receives crucial state funding while mediating conflicts that involve state
agencies. The last point is a crucial issue since the size and jurisdiction of state
government usually means that state agencies are involved with many conflicts within the
state. The CRC’s educational outreach has been another factor contributing to its
institutionalization. Finally, the CRC sites its advisory council as crucial in its success.
Having a diverse council not only brings public legitimacy but provides sound guidance
for strategic direction, leadership, and refinement of programs.
Hawai’i

In 1989, the Judiciary’s Center for Alternative Dispute Resolution was created by
state statute. The mission of the center “is to provide the people of Hawai’i with neutral
alternative dispute resolution (ADR) processes that provide opportunities for early, party-
driven, efficient, and fair resolution of conflicts.” (Center for Alternative Dispute
Resolution Annual Report, 1996-1997, p. 1) The four functions of the center are as
follows:

“assist in designing dispute resolution systems for all three branches of

government at the state and county levels . . . to directly assist the Judicial,

Legislative, and Executive Branches in mediating and facilitating lawsuits,

complex litigation, and public policy disputes . . . to oversee the state of

Hawai’i’s Purchase of Service contract with the community mediation

centers . . . to systematically promote ADR by providing training in ADR

techniques, and educating government and community decision-makers

and the public about ADR and the available ADR options in Hawai’i.”

(Center for Alternative Dispute Resolution Annual Report, 1996-1997, p.
1-2)

32.

The center is housed in the Office of the Administrative Director of the Courts.
This places the center under the governance of the Chief Justice of Hawai’i’s Supreme
Court. The center also has a board of advisors consisting of: Circuit Court Judge,
Attorney General, Native Hawai’ian Legal Corporation, County Council member, State
Senator, City Council member, University of Hawai’i professor, Director of the
Department of Commerce & Consumer Affairs, lawyer, private mediator, and Hawai’i
Business Roundtable.

Hawai’i has created more statutes and rules to foster mediation and other forms of
ADR than any other studied state. The statues and rules are broken down into the
following general areas:

Executive & administrative departments; state risk management and
insurance administration; county organization and administration; public
agency meetings and records/boards: quorum, general powers; public
lands, management and disposition of; conservation and resources;
planning and economic development; multistate tax compact;
transportation and utilities; social services; labor and industrial relations;
Hawai’i employment relations act; code of financial institutions;
corporations and partnership, insurance, professions, and occupations;
trade regulations and practice; uniform commercial code; property;
miscellaneous; courts and judicial proceedings; civil remedies and
defenses and special proceedings; Hawai’i penal code-forfeiture; rules of
the supreme court; Hawai’i appellate conference program; rules of the
circuit court; court annexed arbitration program; family court rules;
probate rules; local rules of practice for the US. District Court (Hawai’i);
Hawai’i state bar association; and Hawai’i administrative rules. (Hawai’i -
ADR related Statues & Rules)

33

The above areas constitute over 200 statues and rules. Part of the reason for so many
statues and rules is that Hawai’i has incorporated ADR into all levels of the state court
system: district, family, circuit, and appellate. In relation to environmental conflicts the
above statues and rules allow:
The Governor or designee perform the Department of Land and

Natural Resources mediations; arbitration of solid waste disposal

contracts; arbitration of any lease controversies involving the Board of

Land and Natural Resources; use of mediation by State Water

Commission; arbitration of mining and mineral rights; mediations for

coastal zone management; use of ADR for hazardous waste management;

mediation of contested cases involving the Department of Land and

Natural Resources; and mediation for issues involving waste, pollution

diversion, withdrawal, impundment, or consumptive use of water.

(Hawai’i - ADR related Statues & Rules)

The result of the statues and rules has been an extensive institutionalization of
mediation in the state of Hawai’i. Currently the opportunity exists for parties to seek
mediation in everything from small claims issues, child custody issues, too natural
resource disputes. The success and extent of the mediation programs is due to cultural
norms and a supportive court system. The current Director of the center indicated that
Hawai’ian culture tends to focus more on relationships than mainstream American culture
(Kent, 1998). This cultural observation is supported by two local words, Ho’oponopono
and Fa’alealeiga. “Ho’oponopono, a Hawaiian dispute resolution process, means to set

right, to make right, to correct, to restore and maintain good relationships among family,

and supernatural powers.” (Center for Alternative Dispute Resolution Annual
Report, 1996-1997, p. 12) “Fa’alealeiga, a Samoan dispute resolution process, is a

healing process, which means to make things whole or to mend relationships. It is

34

typically used between family members or families. The neutral may be a chief, parent,

or respected elder.” (Center for Alternative Dispute Resolution Annual Report,

1996-1997, p. 22)

In addition to cultural norms that promote a successful mediation program, the
court system has been supportive of mediation. The center’s Director indicated that one
reason for the continued success of the program has been the support from multiple State
Supreme Court Chief Justices (Kent, 1998). The current State Supreme Court Justice,
Ronald Moon, describes himself as a “student and proponent of alternative dispute
resolution (ADR) for the past thirty years” (Moon, 1996). Moon goes on to say

“My commitment to ADR began soon after graduation from law school in

1965 when I was fortunate to clerk at Hawaii’s United States District

Court for then Chief Judge Martin Pence, an artful, skilled mediator, that

is, a master of settlement judge. During my tenure with Judge Pence, I

observed ADR principles in action and at their best. I learned to

appreciate the process as an invaluable tool in resolving disputes outside

the traditional litigation track. Since then, ADR has been an integral part

of my life as a private practitioner, trial judge, and supreme court justice.”

(Moon, 1996, p. 475)

Clearly the years of formal and informal ADR in Hawai’i have played a role in the
success of the institutionalized program. Additionally, the cultural norms are also likely
to have played a role. Like Florida, the Hawai’i program is housed in a neutral location,
the court system. It also seems that both Florida and Hawai’i have had multiple strong

champions. All of these factors have seemed to play a role in Hawai’i’s mediation

program’s growth, continued support, and success.

35

Montana

The Montana Consensus Council (MCC) was created in 1994 by an executive
order of the Governor. MCC is governed by a board of directors, representatives
include: Montana Power Company, Montana Audubon Council, Wolf Point High
School, Sagebrush Outdoor Gear, Montana Environmental Information Center,
Democratic State Senator, Republican State Representative, Governor, Northern Light
Institute, Montana Farm Bureau, and Communities for a Great Northwest.

“The mission of the Montana Consensus council is to promote fair,

effective, and efficient processes for building agreement on natural

resources and other public policy issues important to Montanans. As an

organization dedicated to building understanding and agreement, the

council is designed to supplement, not replace, the work of existing

institutions to shape and implement public policy.” (Montana Consensus

Council: Building Agreement on Natural Resources and Public Policy
1995-1996 Biennial Report, p. 1)

Since MCC was created by an executive order, it is housed under the Office of the
Governor for administrative purposes. The first two years of funding were provided “by a
two-year grant fi'om the state’s Renewable Resources Development Program, which is
funded by a state tax on oil, gas and mineral development.” (Mckinney, 1997, p. 237) In
1996, MCC received funding from: one-third state’s general fund, one-third fees for
service, and one-third contributions.

In an effort to ensure that MCC could effectively serve the state on a long-term
basis the board of directors looked at five different organizational models: “state office
model, the not-for-profit model, the university based model, the public-private
partnership model, and the public corporation model” (McKinney, 1997 , p. 238). Four

criteria were used when looking at different organizational models (I) maintain and

36

enhance relationships with existing arenas, (2) build and improve private sector
relationships (includes general public), (3) maintain MCC’s flexibility to address new
issues, (4) diversify and stabilize funding. (McKinney, 1997, p. 237-238)

The public-private model was chosen with the goal of the private side being able
to focus on funding issues and the public side focusing service to the public. The public-
private model is not without critics in Montana. Since the private side of the MCC can
charge fees for service, some people feel that MCC is competing with the private sector.
The critics feel that a government agency (MCC) should not charge a fee for service and
that MCC has an unfair advantage over the private sector since it is partially funded from
the state’s general fund (McKinney, 1997, p. 239). MCC feels that it can work with the
private sector to define its role and together they can explore options for funding.

MCC has had success in helping Montana address natural resource issues,
however, funding has been a major organizational issue and time intensive area for the
staff. MCC is 4 years old, the seed money is gone, and MCC is still in the process of
demonstrating a long-term record of success. In the above context, it is not unusual for
MCC to be struggling with funding. The decision to use the public-private partnership
model was partly based on funding. The goal was to diversify the funding sources,
allowing MCC to provide a stable long-term service to Montana.

A few of the services that MCC has provided include: Working Group on
Helena’s Subdivision Review Policy, Big Hole Watershed Committee, Negotiated
Rulemaking on Game Farms, Land Stewardship Policy Dialogue, Bison Management in
the Greater Yellowstone Area, numerous consultations with individuals, private groups,

and government agencies.

37

In an effort to address the perception of being a special program of the Governor,
MCC attempted to establish itself as a statutory entity. The Senate approved by over a
two-to-one vote. However, the statutory recognition failed in the House due to a 50-50
vote (majority needed). Institutionalization of MCC by the Governor allowed MCC to be
created quickly, in comparison to the time-frame of institutionalizing a program by a
legislative mandate. The quick institutionalization provided MCC with the opportunity
demonstrate the services that it can provide to Montana. Yet, as demonstrated by the
legislative vote, Governor institutionalized programs do not necessarily receive
legislative support.

Unlike Wisconsin’s unsuccessful attempt at institutionalizing mediation, MCC
appears to be stabilizing itself by branching out beyond its government origins with the
public-private partnership model. This public-private partnership model may allow MCC
to avoid the same scenario as Wisconsin when a new Governor is elected. However, the
current MCC model does seem to have one problem that Florida has avoided, the issue of
neutrality. Even if “neutrality” does exist for MCC while under the umbrella of the
Governor’s office, the perception of being a special program of the Governor is
problematic. In the arena of consensus building, perception is reality for parties involved

in a mediation.

Chapter 3
Michigan
Mediation

In 1988 the Legislature passed Public Act 260 which created a statewide
Community Dispute Resolution Program (CDRP). The CDRP is structured on a
community-based model, each county can have a community dispute resolution center.
Funding was provided by a $2 increase in the filing fee for civil cases. Since sparsely
populated counties do not generate enough revenue based on their civil court caseload,
some dispute resolution centers are multi-county. In 1995 there were 30 community
centers for 82 of Michigan’s 83 counties (Mika, 1996). The State Court Administrative
Office of the Michigan Supreme Court provides the statewide administration of the
community dispute resolution program.

During the first six years of operation, over 30,000 Michigan residents resolved
disputes using the local dispute resolution centers. “Where parties to a dispute agree to
utilize the services of a center, approximately 80 percent reach a satisfactory resolution to
their problems. Monetary settlements over the six program year of CDRP have exceeded
$6,540,000.” (Mika, 1996) A statewide survey found “Eighty-four percent of respondents
say they would use the process again, 88 percent say they would recommend the process
to others, and 84 percent agree, or strongly agree, that they are satisfied with how their
problem was handled.” (Mika, 1996, p. 17)

The type of cases varies from center to center; the most common cases are
landlord/tenant, neighborhood issues, breach of contract, and consumer/merchant

disputes. Since each center focuses on local issues additional programs have been

39

implemented in different centers: mediation in work place, education and awareness, real
estate mediation, school mediation, special education mediation, victim offender
mediation, adult probation communication workshop, and agricultural mediation.

The community-based model has both advantages and disadvantages in Michigan.
Currently some of the centers are struggling with funding. Many of the less populated
counties, outside of the Detroit — Metropolitan, area do not have the civil court caseload
to generate sufficient funding through the $2 filing fee. Mika sights a lack of sufficient
funding as a major issue when looking at program performance. Even though the
community-based model has led to varying levels of service from region to region, the
model has one distinct advantage. Each center is grassroots based in almost every aspect.
Funding, board of directors, volunteer mediators, and disputes are controlled locally.
This grassroots emphasis has allowed each center to tailor its programs to the needs of the
local communities. The flexibility of the centers is an important characteristic since
Michigan is distinct from region to region (Metro-Detroit, Outstate, Thumb, Upper-
Lower Peninsula, and Upper Peninsula).

Currently the centers do not have the mandate or training to deal with natural
resource disputes. The closest program that the centers have is the agricultural mediation
program, which is sponsored by the United States Department of Agriculture. The
primary focus and use of the program is to assist the USDA and Michigan farmers in
resolving loan disputes. The program does provide for mediation disputes dealing with
agricultural wetland determinations.

The continued use of the community dispute resolution centers by small claims

courts, police agencies, schools, and individual citizens of Michigan is an indicator that

40

the mediations and other ADR services provided by the centers are addressing existing
problems in Michigan. This leads to the question, when looking at the appropriateness or
inappropriateness of institutionalizing environmental mediation, are there existing
problems in Michigan that need to be addressed?

Natural Resources

One current statewide natural resource issue in Michigan is the loss of agricultural
land to development. Michigan has lost approximately 1,000,000 acres of agricultural
land in the last decade (MDA, 1997). The current projection for agricultural land is the
loss of “about 2 million acres in the next 20 years.” (Michigan in Brief, 1998-99, p. 48)
Compared with other Great Lakes states, Michigan is losing farmland at the greatest rate
(Michigan in Brief, 1998-99, p. 46).

Air quality is another issue that Michigan is struggling with. Recently the
southeast portion of Michigan (Ann Arbor/Detroit) and Grand Rapids were found to be
within the acceptable level of ozone air quality. The regions had been in nonattainment
status for many years. However, there are still six counties in Michigan that do not meet
the EPA standards. Additionally, the EPA has proposed new air quality standards that
could dramatically impact Michigan standards (Michigan in Brief, 1998-99, p. 60).
Intense debates have already begun as a result of the proposed air quality standards.

Public Sector Consultants stated “Overall, Michigan surface waters are of
generally good quality-«hat is, pollution is relatively low, and the waters support the uses
protected by law.” (Michigan in Brief, 1998-99, p. 365) However, the term “overall” is a
generalization. A United States-Canadian treaty created the International Joint

Commission (11 C), the organization has the responsibility of making recommendations on

41

management and protection of the Great Lakes. The U C has identified 43 areas of
concern (having serious water quality problems), 14 of the areas are in Michigan.
Additionally, over 10,000 areas in Michigan have been identified by the DEQ as having
groundwater contamination (Michigan in Brief, 1998-99, p. 366). Recently, communities
have begun to struggle with the environmental and fiscal problem of combined sewer
overflow (CSO). In the city of Lansing, the C80 conflict culminated in the city council
suing the city mayor.

Michigan’s unique location as a peninsula in the Great Lakes has provided
economic development, recreation, revenue, and the responsibility of partial management.
Since the Great Lakes generate $3.3 billion annually through boating and fishing it is
important for Michigan to ensure the quality of the Great Lakes ecosystem. Michigan
continually must deal with conflicting interests in order to foster economic growth and a
healthy ecosystem. These conflicts are both intrastate and interstate for Michigan.

In 1996 the Natural Resource Division of the Michigan Attorney General’s Office
opened 251 court cases. It is unclear how long it will take to close the 251 case; in 1996
131 cases were closed from 1995 and earlier years. [hiring the same year the Natural
Resource Division had to argue against 36 administrative appeals. The Attorney
General’s Office acts as an in house council for the DEQ, DNR, and MDA. In addition to
the above cases each agency addresses many disputes without the involvement of the
Attorney General’s Office. Within each agency there are various enforcement units that
utilize warnings, fines, negotiations, and direct final orders in an effort to address natural
resource conflicts. Unfortunately each unit maintains their own records and they

currently are not administratively capable of clearly reporting the number of cases to the

42

public. Conversations with multiple agency personal all indicated that the number of
cases that are sent to the Attorney General’s Office are a small percentage of the total
number of natural resource conflicts in Michigan. Additionally, there are natural resource
conflicts that are addressed in Michigan’s circuit court system, lawsuits between private
parties. Again, neither the State Court Administrative Office (statewide jurisdiction) nor
Ingham County Circuit Court is capable of reporting the number of civil environmental
cases to the public. All of the aforementioned government agencies either had computer
systems that are not capable of reporting the numbers or do not have the staff and time to

create a program that could generate the data.

Michigan Environmental Protection Act (MEPA)

Throughout most of Michigan’s history the natural resources of the state have
provided the foundation for Michigan’s economic growth. The years of trapping,
lumbering, farming, and fishing have left a legacy of a highly utilitarian view of
Michigan’s natural resources. “the history of environmental politics in Michigan has not
been balanced in the way that state policies so routinely are. Until recent decades, the
balance emphasized resource use and environmental neglect.” (Browne & VerBurg, 1995,
p. 276) The balance did not shift due to any one specific factor, however, two factors did
play a key role in establishing the current balance of resource use and protection. In 1963
Michigan’s new constitution included a “clear environmental mandate to the legislature.”

(Browne & VerBurg, 1995, p. 278)

43

“In 1970, in a far more significant move, the legislature followed the
constitutional mandate by adopting the Michigan Environmental
Protection Act (MEPA). The heart of this brief, yet revolutionary, act is
contained in the following paragraph: ‘The attorney general, any political
subdivision of the state, any agency of the state or of a political
subdivision thereof, any person, partnership, corporation, association,
organization or other legal entity may maintain an action . .. for the
protection of the air, water, and other natural resources and the public trust
therein from pollution, impairment of destruction.’ With this act, the
general adversarial relationship between advocates of economic
development and those of environmental protection became
institutionalized in Michigan.” (Browne & VerBurg, 1995, p. 278-279)

Before the enactment of MEPA, individuals could only sue to protect the environment if

they could show direct economic or personal injury that would provide legal standing in

court. MEPA not only allowed individuals to protect the environment in court, it forced

the state to involve citizens in natural resource planning (Browne & VerBurg, 1995).
"The legislation also institutes court procedures to settle disputes.

These procedures are designed to identify the critical issues behind a

complaint and to resolve them without sentiment or prejudice to either

side. Because the adversaries in environmental disputes were seen to be

unusually determined foes, with full intentions of carrying out extensive

campaigns, the legislature chose the courts as arbiters. Advocates of

MEPA feared the consequences of either the normal routine of negotiated

compromises or of gridlock in the legislature or the administration.”

(Browne & VerBurg, 1995, p. 280)

“MEPA created a legal procedure for settling environmental disputes because
activists who supported the law were suspicious of the state’s tradition of depending on
negotiated policy settlements.” (Browne & VerBurg, 1995, p. 279) Before MEPA, an
“activist” that engaged in negotiations and did not have standing in the court was

negotiating with a disadvantage. MEPA has partially leveled the playing field for

“activists,” thus MEPA allows “activists” to more effectively engage in mediations.

Michigan has addressed many community disputes over the last ten years with the
institutionalized community dispute resolution centers. It is evident that the State of
Michigan utilizes the courts to deal with many natural resource disputes every year.
Currently it is not clear if it would be appropriate or inappropriate to institutionalize
environmental mediation in Michigan in order to address the natural resource disputes.
Chapter 4 reviews the research design that was developed in response to the
aforementioned question. Chapter 5 will state the findings of the research. Chapter 6

will provide an analysis of the findings and present the conclusions.

45

Chapter 4

Research Methods

This research is an exploration of the question “Is it appropriate or inappropriate
to institutionalize environmental mediation in Michigan?” In order to deal with the
complex questions of policy, natural resources, and environmental conflict resolution a
qualitative approach was used. The principle of triangulation (Creswell, 1994) was used
in the research design to increase the validity of the analysis. The first position of
triangulation was taken with a survey. The second position was created by the use of a
focus group, and the literature review created the final position of analysis. The use of
any one of the above analysis methods could result in a valid analysis. However, by
looking at the research problem with different tools of analysis the clarity and validity of
the analysis was improved. A
m

Typically, surveys rely on probability sampling, randomly surveying members of a
population. In Survey Research Methods Earl Babbie discusses the advantages of
probability sampling over nonprobability sampling. However, Babbie goes on to state
that there are times when certain factors result in the use of nonprobability sampling
instead of probability sampling. “Situations in which probability sampling would be
prohibitively expensive and/or when precise representativeness is not necessary.”
(Babbie, 1990, p. 97). Since both of the above situations applied to this research,

nonprobability sampling was utilized.

Even though probability sampling has many advantages, it was not an appropriate
method for this survey. The large and diversified stakeholder population groups (148
Legislators, Governor, 3 state agencies with thousands of employees, entire legal
community, environmental organizations, industrial organizations, business
organizations, and citizens) that this thesis looks at are cost and time prohibitive for
probability sampling. Additionally, certain stakeholders, such as Legislators, tend to rely
on group leaders and specialists when dealing with low profile policy questions such as
the appropriateness of institutionalizing environmental mediation. A comprehensive
survey of Michigan Senators and Representatives would be appropriate for high profile
policy questions such as abortion, taxation, assisted suicide, or public assistance
programs. However, it is not out of the ordinary for Legislators to rely on committee
members for guidance on low profile policy issues that involve in depth knowledge and
have no public constituent support or opposition. The above statement is based on the
author’s experience from working in a district office and capitol office of a Michigan
legislator.

The two House of Representative committees that would have oversight over
institutionalization of environmental mediation would most likely be Judiciary (17
members) and Conservation, Environment and Recreation (19 members). The two
Senate committees would be Judiciary (7 members) and Natural Resources and
Environmental Affairs (5 members). Hence, these committee members were part of the
purposive nonprobability survey. Additionally, Legislators rely on their respective policy

staff (Democrat & Republican), both were surveyed.

47

The environmental and natural resource advisor to the Governor received a
survey. State agencies (DEQ, DNR, and MDA) were represented in the survey by
management and staff in each enforcement unit. Additionally, the executive offices of
each agency was surveyed (a policy analyst and the legislative liaison). The above four
state agency groups (executive office, managers, staff, legislative liaison) all play a role in
new policy implementation, hence it is important that they are surveyed since
institutionalizing environmental mediation would create new policies.

The legal profession was represented by the legislative liaison of the Michigan
Bar Association and the Justice Association. Additionally, the Natural Resource Division
of the Michigan Attorney General’s Office and the Michigan Supreme Court State Court
Administrative Office was surveyed. Since environmental mediation can involve legally
binding agreements, the legal community would play a role in developing or blocking an
institutionalized mediation program.

Environmental organizations were represented by the legislative liaison from
Michigan United Conservation Clubs, National Wildlife Federation (Great Lakes Office),
Michigan Sierra Club and Michigan Environmental Council. The legislative liaison from
the state Chambers of Commerce, Lansing Chamber of Commerce, Michigan Chemical
Council, and Michigan Manufacturing Association were surveyed as representatives of
the industry stakeholder group. Michigan Farm Bureau’s legislative liaison represented
their organization in the survey. Just as previously mentioned organizations would play a
role in the debate of institutionalizing environmental mediation, environmental and

industrially oriented organizations would play a role in a debate, hence their inclusion in

the survey. Since Public Sector Consultants has played a strong policy research and
information role in Michigan, they were included in the survey.

In order to increase the response rate, surveys were hand delivered and picked up
when possible. The hand delivery method was used for all Legislators, this resulted in
four outcomes: immediate survey response, a date set for survey pickup, survey returned
by mail, or no response. Hand delivery was facilitated by the fact that Michigan State
Legislators are housed in four centrally located buildings. All other survey recipients
were spread out over a larger area and were less accessible due to organizational
structures/obstructions. When possible the surveys were hand delivered. When hand
delivery was not possible, the surveys were mailed or faxed depending on the recipient’s
desire. If the recipient did not have a preference, the survey was faxed in order to shorten
the response time. All mailed and faxed surveys resulted in mailed returns or no
response.

In an effort to increase the response rate for non-hand delivered surveys, the
recipients were contacted by phone before sending the survey. Follow-up calls were
placed after three weeks if no response was received. In order to maintain uniformity in
the survey implementation, the survey questions were not discussed with the recipients
until the survey had been returned. One exception does exist to the aforementioned
statement. At the request of a thesis committee member, a member of the Michigan
Supreme Court State Court Administrative Office assisted in the development of question
15. The consulting individual was included in the survey due to the relevant position held

in the Michigan Supreme Court State Court Administrative Office.

49

The first half of the survey (Appendix A) was designed to provide insight into the
stakeholder’s perceptions, level of knowledge, and experience with natural resource
conflicts in Michigan. The second half of the survey focused on the stakeholder’s
perceptions, level of knowledge, and experience with environmental mediation in the
context of state institutionalization. The first half of the survey questions not only
provide valuable background information for this research but also prompted the
stakeholder to reflect on environmental conflicts in Michigan before answering questions
on environmental mediation in Michigan.

The design of the survey, just as the thesis, is not to generate quantifiable results.
The survey is designed to assist in analyzing the perceptions of the stakeholders.
Currently, no data exists that could answer the question, is institutionalization of
environmental mediation appropriate of inappropriate in Michigan? The triangulation
method allowed for integration of the survey, focus group and literature review, this
integration not only allows for a more dynamic analysis but also increases the validity of
the analysis.

Focus gmup

Market researchers have utilized focus groups for many years. More recently, the
years of market research experience and the application of systematic procedures by
qualitative academic researchers has resulted in the utilization of focus groups by
academic researchers, non-profits, and other organizations (Krueger, 1994). Richard
Krueger states “Focus groups produce qualitative data that provide insights into the
attitudes, perceptions, and opinions of participants.” (Krueger, 1994, p. 19) The focus

group process was utilized in this thesis for two reasons; as a tool for triangulation and

50

generation of public debate. The surveys were filled out by the stakeholders in isolation
from other stakeholders, while the focus group provided a forum for stakeholder
interaction. “The focus group presents a more natural environment than that of an
individual interview because participants are influencing and influenced by others—just
as they are in real life.” (Krueger, 1994, p. 19)

Typically focus groups range in size from 6 to 10 people, and are replicated 3-4
times to detect patterns and trends. The relatively small size of the stakeholder
population and the costs associated with focus groups resulted in a single focus group for
the study. The lack of replication in this study is not an issue since the intent of the focus
group is not for one person to represent the entire community. Each representative has
the potential to begin a public debate of the appropriateness or inappropriateness of
institutionalizing environmental mediation. With a diverse group, the public debate has
the potential to raise new concerns and issues specific to Michigan, issues that would not
be raised by the survey, allowing a more thorough analysis.

The focus group was designed to be composed of one representative from the
legislative body, one representative from the DEQ, one representative from the legal
community, one representative from the environmental organizations, one representative
from the industrial community, and one representative from the private sector. When
possible an individual was picked randomly from each community to participate in the
focus group. Due to scheduling conflicts numerous people were contacted before all of
the communities were represented. Additionally, emphasis was placed on having a mix
of views (based on questions 10-13) in the focus group. The variances involved with

field research resulted in a schedule change for the environmental organizational

51

representative, resulting in an absence. Two additional legal community representatives
were present due to an interest in learning about the research.

The design of the focus group was based on Krueger’s (1994, p. 54) outline of
focus group questions. The general format used was: opening questions, introductory
questions, transition questions, key questions, and ending questions (Appendix B). The
above format allowed for the generation of group common knowledge (opening and
introductory questions). Transition questions allowed the group to move into the general
area of research, with key questions focusing the group on the research question. Ending
questions allowed closure for the group and an opportunity for participants to reflect on
comments and summarize. (Krueger, 1994)

At the conclusion of the focus group each participant was asked to fill out another
survey. This allowed a comparison with the pre-focus survey, providing insight into the
impact of public discussion on the question of institutionalization of environmental
mediation. It should be noted that even though Appendix B provides the outline used to
conduct the focus group, the focus group also provided direction and emphasis. The
focus group participants generally controlled the pace of discussion, when the group
discussion naturally ended the moderator would move onto the next question. There were
two times that the moderator directed the group and moved onto the next question due to
time constraints. The author of this thesis acted as moderator.

The combination of the survey and the focus group will allow a more accurate
analysis. The survey will help to determine stakeholders’ current level of knowledge,
view on the role of government in conflicts, and view on institutionalizing environmental

mediation. The focus group will help to determine the issues that concern stakeholders,

52

see if there are any changes on the view of environmental mediation after a public
dialogue, and allow the question of appropriateness to be explored publicly. A survey
provides specific insight, but isolated insight. Policy decisions do not occur in an isolated
vacuum, but are debated publicly and privately. The focus group will add to the isolated

insight by moving the analysis into a publicly debated arena.

Confidentialigg

Many of the individuals that were surveyed were either public officials or worked
for an organization that required concern over issues of publicity. In order to have an
effective survey and focus group it was necessary to provide confidentiality for the survey
and focus group participants. Even though all of the organizations that were contacted
were listed, this thesis does not reveal which organizations orindividuals did or did not
respond. Additionally, confidentiality was preserved since the results of the survey are
only attributed to the community, not individuals. Since some communities had a 100%
response rate it was necessary to group several communities together to ensure

confidentiality.

53

Chapter 5
Findings
This chapter will report and discuss the findings of the survey and focus group.

Survey

The survey (Appendix A) was distributed to 85 individuals, 62.35% responded.
One of the respondents returned a letter in lieu of a survey. The letter addressed the
survey questions with broad responses. The legislative community had a response rate of
52.17%. The DEQ, DNR, and MDA had a combined response rate of 62.35%. Since
some communities had a 100% response rate it was necessary to group several
communities together to ensure confidentiality (legal community, industrial community,
Farm Bureau, Governor’s Office, environmental community, private sector, and political
party policy staff). The aforementioned groups had a combined response rate of 83.33%.

Question 3. of the survey asked To what degree do you feel that citizens and
organizations in MI are currently involved in natural resource and/or environmental

conflict? The findings are shown in Table 1. This question was answered by 94.23% of

 

 

 

the respondents.
Table 1
Extensive conflict Above average Average Below Average Little conflict
2.04% 34.69% 42.86% 20.41% 0%

 

 

 

 

 

 

Question 4. of the survey asked To what degree do you feel that citizens and

organizations in MI will be involved in natural resource and/or environmental conflict in

the firture? This question was answered by 94.23% of the respondents (Table 2).

 

 

 

Table 2
Extensive conflict Above average Average Below Average Little conflict
4.08% 55.10% 28.57% 12.24% 0%

 

 

 

 

 

Question 3. and 4. were designed to provide insight into the respondents’ view on

natural resource and/or environmental conflict in Michigan. A baseline for comparison is

provided by question 3. It is worth noting that respondents felt the future would bring an

increase in natural resource and/or environmental conflict, the category of “above

average” went from 34.69% to 55.10%. The percentage changes for “average” and

“below average” also indicate that the respondents felt that conflict would increase in the

future. Interestingly, no respondents choose “little conflict” in the present or future

questions.

Question 5. of the survey asked To what degree do you feel that M! state

government should play a role in addressing natural resource and/or environmental

conflict? This question was answered by 96.15% of the respondents (Table 3).

 

 

 

 

 

 

Table 3
Extensive More than current Current level Less than cmrent Minimal
level level
22.00% 52.00% 26.00% 0% 0%

 

 

 

55

 

Surprisingly, in a time when there is a trend in Michigan of reducing state
government size and involvement, nearly three quarters of the respondents felt that
Michigan State government should increase its role in addressing natural resource and/or
environmental conflict. None of the respondents felt that Michigan State government
should reduce its role.

Question 6. of the survey asked Please rate the MI court system 's ability to
address natural resource and/or environmental conflict. This question was answered by
88.46% of the respondents (Table 4).

Table 4

 

Very satisfied Moderately Satisfied A little dissatisfied Very dissatisfied

 

8.70% 32.61% 45.65% 13.04%

 

 

 

 

 

 

The respondents were split over the court system’s ability to address natural
resource and/or environmental conflict, slightly more than half (58.69%) had some level
of dissatisfaction. The dissatisfaction was discussed again in the focus group when some
participants articulated that many environmental conflicts are settled before going to
courts. The reasoning for avoiding the courts was that the courts lack of expertise and

background in environmental issues, resulting in questionable judgements.

Question 7. of the survey asked Has your organization been involved in a natural
resource and/or environmental conflict? This question was answered by 90.38% of the
respondents (Table 5).

Table 5

 

Yes N O

 

82.98% 17.02%

 

 

 

 

Question 8. of the survey asked Have you been involved in a natural resource
and/or environmental conflict? This question was answered by 96.15% of the
respondents (Table 6).

Table 6

 

Yes NO

 

70.00% . 30.00%

 

 

 

 

A large percentage of organizations or individuals have been involved in
environmental conflicts. The extensive experience with environmental conflicts adds to
the value of the research. A survey administered to individuals with little environmental
conflict experience would not provide as much insight into the question of

appropriateness.

57

Question 9. of the survey asked the respondents to indicated if they had heard of any
of the following 9 items: Alternative Dispute Resolution (ADR), Arbitration, Labor
Mediation, Community Mediation, Ml’s Community Mediation program, MI’s
Agricultural Mediation program, Community Dispute Resolution Act 260 of 1988,
Environmental Mediation, Natural Resource Conflict Management. This question was

answered by 92.31% of the respondents (Table 7).

 

Table 7
_# 0f 1 2 3 4 5 6 7 8 9
items
heard
of:

 

% 2.1% 6.3% 10.4% 18.8% 16.7% 16.7% 6.3% 10.4% 12.5%

 

 

 

 

 

 

 

 

 

 

 

 

Surprisingly, over half of the respondents (62.6%) had heard of 5 or more of the
terms. However, having heard of a term does not constitute an understanding of the term,
yet, the 62.6% is unusually high since most people have not heard of the terms or only
one or two terms at most.

Question 10. of the survey asked In general, do you feel that environmean
mediation is a valid method to address some natural resource and/or environmental
conflicts? This question was answered by 84.62% of the respondents (Table 8).

Table 8

 

Yes N0

 

90.91% 9.09%

 

 

 

 

58

Question 11. of the survey asked In general, do you feel that environmental
mediation is a valid method to address some natural resource and/or environmental
conflicts in MI? This question was answered by 80.77% of the respondents (Table 9).

Table 9

 

Yes NO

 

90.48% 9.52%

 

 

 

 

Question 10. and 11. have incredibly high percentage responses for a dispute
resolution method that is still relatively new. The results shift the question of
appropriateness of institutionalization of environmental mediation from the validity of
environmental mediation to the validity of institutionalization.

Question 12. of the survey asked Should MI government institutionalize
environmental mediation (create a stafl' and ofi'ice)? This question was answered by
78.57% of the respondents (Table 10).

Table 10

 

Yes NO

 

48.48% 51.52%

 

 

 

 

At first glance the responses to question 12. are surprisingly low in the context of
the respondents’ strong support for environmental mediation (question 10. & 11.) and
support for Michigan government to play more of a role in environmental conflicts
(question 5.). This apparent contradiction may not be as strange as it appears. It is worth

noting that question 12. has the second lowest response rate, 78.57 %. Eight of the

59

questions on the survey had a response rate of 90% or greater. The focus group revealed
that there were many definitions of mediation and institutionalization. The earlier
questions that had high response rates had much less ambiguity in comparison to
questions 12. As was discovered in the focus group, the term “institutionalization” can
be an ambiguous term, this could explain the low response rate. This would also explain
the apparent contradiction, if people were unsure of what institutionalization entailed,
they would understandably be unwilling to choose institutionalization. Clearly, the
response could also indicate that 51.52% feel that institutionalization is inappropriate.
However, then it would be expected that the responses to question 15. (below) would
have a high percentage choosing the earlier options (minimal institutionalization), the
majority choose the later options (most extensive form of institutionalization).

Question 15. of the survey asked If environmental mediation was institutionalized
in MI, to what degree would you want the institutionalization to occur? The findings are

shown below. This question was answered by 67.92% of the respondents.

5.56% 1) A list of available mediators is maintained.

19.44% 2) In addition to l; legislation allowing state agencies and private parties to
use mediation.

16.67% 3) In addition to l & 2; The DEQ, DNR, and MDA each have a staff person
that assists the agency with mediation.

8.33% 4) In addition to 1, 2 & 3; Creation of an office that provides training,
information, and coordinates mediation services.

50.00% 5) In addition to l, 2, 3 & 4; Creation of legislation that encouraged the use of
mediation by state agencies, courts, and private parties.

It is interesting to note if institutionalization occurred, 50% of the respondents
would choose the most extensive form of institutionalization. The strong preference for
the more extensive form of institutionalization brings into question the results of question
12. As mentioned before, the discrepancy can be explained by the ambiguous term
“institutionalize” in question 12. while question 15. removes some of the ambiguity by
clearly stating different forms of institutionalization. Future research should focus on

clarifying the apparent conflict between question12. and 15.

Focus Group

Eight individuals were scheduled to participate in the l-hour focus group. These
individuals were drawn from the legislative body of Michigan, the DEQ, the legal
community, the environmental community, the industrial community, and the private
sector. The day of the focus group, the participant from the environmental community
schedule changed, resulting in a no show. The group was reminded that

“no one is speaking on behalf of an organization or agency, but from

experience working in a respective field. You are not expected to speak

for your respective field. The purpose of this focus group is to bring your

knowledge and experience, from your field, to bear on the research

question. Other people in your field have filled out a survey, however, the

surveys were completed in isolation. Hopefully by bringing individuals

from the different fields together, issues that were not brought out by the

survey will be brought out today.”
Definitions were provided to the focus group in an attempt to provide a common
reference point during the discussions (Appendix C).

The initial round robin questions provided insight into the participants’

background. Five of the seven participants indicated that they have been involved in

61

mediations and/or facilitations. The other two participants indicated that they had been
involved on the periphery of mediations and/or facilitations.

Two of the seven participants have been involved in a natural resource or
environmental dispute. In both cases, the disputes lasted longer than 1 year. One of the
two participants stated that one of natural resource disputes was a multi-state dispute over
water rights involving Lake Michigan. When a mediator was brought in the focus group
participant thought that the mediation was “a waste of time,” but by the end the
participant felt the process was “very valuable.” The second participant stated that when
natural resource disputes occurred they tried to address them at lower levels in the
organization (state regulatory agency). The participant’s experiences have been that when
lawyers become involved, the dispute will take more than one year to address.

Unless noted otherwise, the following questions were put to the focus group as
open ended question for free flow discussion.
Doyoufeelthatenvironmentalmediaflonlsavalldmethodtoaddreassomenamral
resource and/or environmental conflicts?

There was consensus among the fbcus group participants that environmental
mediation is a valid method to address some natural resource and/or environmental
conflicts. However, there were challenges involved in the process. The concern that was
raised most often by participants was the issue of who pays for mediation. Tied into the
concern of payment was the issue of neutrality of the mediator and process, both real and
perceived neutrality.

The other major concern expressed was a lack of incentive for parties to utilize

mediation. Several of the participants felt that the courts were not the best place to

62

address complex natural resource disputes. The court system’s lack of natural resource
expertise and past record of non-rational rulings was cited as the reason that most
environmental conflicts are resolved before the hearing date. Without the pressure of a
court case it was feared that disputants would not utilize mediation. It is unclear why the
focus group members did not believe that disputants might try mediation instead of the
current method of negotiations conducted by lawyers.

One focus group member stated “time is a critical concern, delay tactics “ in
mediation are a concern if one party is not interested in a resolution. Other focus group
members agreed that the delay potential was a concern.

Who pays?

Several ideas for supporting mediation were put forth in the focus group. Most
of the ideas were in the context of creating a system that provide a neutral mediator and
equity in cost sharing. There is “disparity of resources between groups, if industry pays
100% (environmental groups may not trust the mediator), perception is reality.” Some of
the ideas were:

0 Part of court fees for litigated cases should be set aside

0 Tax on potential polluters, if potential polluters upgrade equipment then they receive
a tax break, if potential polluters do not pay for upgrades then the taxes goes into a

pool

0 As tax revenue increases from industrial growth rate, the state should adjust priorities
and designate some of the new money for mediation

- It ‘s not hard to find companies that will pay, need other outside money to match
(maintain neutrality), set up a pool funded by private foundations where company
funds are matched by the pool funds

0 Part of mediation settlements should go to a fund

0 If mediation demonstrates a proven track record of a good quality program, then the
state and departments would likely fund a program

0 Individual agencies should allocate their money if they want mediation, the Office of
Special Education was cited as an example, the office knows that they will spend
$30,000 to deal with a contested hearing rule, mediation is a cost saving option for
them

Could the case be made that environmental mediation in Michigan could work?

Consensus was reached by the focus group that environmental mediation could
work in Michigan. There were clearly questions and issues that would need to be
addressed, such as the concerns discussed in the Validity question. One member of the
group stated that mediation is more viable in Michigan now than 5 years ago because of
changes in Act 307. Act 307 is Michigan’s version of CERCLA, empowering
government agencies to identify, inventory, and deal with contaminated sites that are not
being addressed. Then the government can bill the liable parties for the costs associated
with the cleanup of the site. In the past, status liability was the standard; any owner or
operator of the contaminated property was liable, regardless if they were involved in the

contamination. The changes in Act 307 have resulted in a causation standard, a

connection must be shown between the accused polluter and their past action that resulted

in contamination. Under the old system, the state automatically won in court against the
owners, no room for mediation. Incentives for mediation have increased since it is
unclear who would win in court. Also, mediation could be utilized for determining how
the potentially responsible parties would split up the costs of the clean up.

Another issue that was raised is that court rules reduce frivolous claims since a

judge can throw cases out. There was concern that mediation would tie up peoples’ time

with numerous conflicts that would be considered fiivolous under the court system. One

64

focus group participant suggested that the cost of mediation is not all bad since that may
reduce frivolous disputes. It is unclear why the focus group participants did not discuss
the fact that since mediation is normally voluntary, a party could avoid what they perceive
as frivolous disputes by only engaging with the disputants in the court system. Other
issues discussed were:

0 Agencies can create a staff position to screen cases, and then contract outside for a
mediator

- Institutionalization provides accountability as opposed to a mediation program
outside state government

0 State has vested interest, some funding must come from elsewhere

0 Locate environmental mediation in courts, helps with neutrality issue; another
participant agreed, institutionalization in court addresses the hired gun problem (it is
hard to find a mediator that both parties can agree to on short notice)

One member indicated skepticism during the pre focus group survey and in the
beginning of the focus group, but after reflecting and listening, believes that there are
enough benefits to mediation ”that it would be a worthwhile process to work on
developing.”

What concerns you most about institutionalizing environmental mediation and what
doyouseeasthegreatestbeneflgifany?

The above two questions were the last questions asked in the focus group, and
were presented in a round robin format, with each participant being asked to keep their
response succinct. Unanimously, the responses were very positive about the potential
benefits for the state of Michigan if institutionalize of environmental mediation occurred.

However, as expressed earlier, in order to successfully utilize institutionalization of

environmental mediation there are some issues that would need to be addressed.

65

Expressed concerns:

0 Vehicle for citizen involvement needed

0 Address federal liabilities, in some cases a federal agency such as the EPA has to
sign off on environmental agreements

0 Need common definition of mediation and proper mediator training

0 Need common definition of institutionalization

0 Need to avoid mediations being utilized as time delay tactic by disputing parties
0 Clear goals and measurable accomplishments needed to build a case for program
0 Must ensure mediation process is neutral and perceived as neutral

0 Find balance between manageable mediation group size and operating within the law
that allows for all citizens to be involved

0 System must be fair and clear so that parties know what they can expect, some level
of certainty

Exm benefits: .
o Mediation would save time and money for all involved

0 Involving disputants in the resolution of the conflict usually results in disputants that
are happier as compared to traditional methods of resolution

0 The more disputants that take the responsibility for resolving disputes, the better
0 Mediation “moves things along”

0 Mediation allows the client’s lawyer to encourage a settlement based on a neutral
process, some clients do not trust deals negotiated exclusively by lawyers

It is worth noting that many of the participants indicated agreement with the benefits
stated by other participants that spoke before them. Participants continuously reiterated
time and monetary cost savings as a benefit of institutionalization of environmental

mediation.

Pre & Post Survey of Focus Group

Figure 1
Pre Focus Group

    

 

 

 

 

 

6 ,
5 :7:
#ot ;
people 2 IV”
1 El No
0
# 10 # 11 # 12
Guestlon
Figure 2
Post Focus Group
# of
people IV”
:1 No

 

 

 

 

# 10 # 11 # 12
Guestlon

It is worth noting that the one individual that chose “no” for question 12. wrote in
“Not in term of office but otherwise yes.” The seventh focus group participant is not
included in the pre and post survey graphs since only the post survey responses are

available. The seventh individual stated yes for questions 10-13 in the post survey.

67

It is clear from the pre and post focus group surveys (Figures 1 & 2) that the focus
group participants changed their views on questions 10-13. This research was not
designed to explore the correlation between focus groups and change in view on
institutionalization of environmental mediation. However, the pre and post focus group
survey appear to support the commonly held belief that as people learn more about

mediation, the level of support for mediation increases.

Chapter 6

Conclusions & Recommendations

This thesis has shown that the question of the appropriateness of institutionalizing
environmental mediation in Michigan has complexities on many levels. In order to deal
with the complexities that the research question raised, several criteria were utilized: cost
effectiveness, time efficiency, existence of champions or adversaries, stakeholder
perception of environmental mediation, stakeholder support or opposition to
institutionalization of environmental mediation, funding availability, and availability of
skilled environmental mediators. In order to increase the validity of the analysis,
triangulation was utilized with the criteria. The three sources for triangulation were the
literature review, survey, and focus group results. The application the criteria will not
result in a definitive answer of the research question. The reality of public policy and
institutionalization questions is that the research can provide guidance and insight, but the
influence of multiple variances of the world prevents a definitive answer.

Cost & Time Effectiveness

Any state government acting in the best interest of its citizens strives to provide
the most cost effective government programs possible. Hence, the question of cost
effectiveness needs to be applied to the question of institutionalization of environmental
mediation in Michigan. Sipe & Stiftel’s (1995) research found that Florida’s institutional
environmental mediation program had median savings of $75,000 per party, in
comparison to the costs of a court resolution. Since environmental conflicts tend to

involve multiple parties, $75,000 savings per party is a substantial amount of money. The

69

Florida research also had participants rate different factors, including the efficiency in
terms of cost of the mediation. Cost efficiency received the highest rating, 94.9% of the
respondents picked the categories of “very” or “moderate.” Although Sipe and Stiftel’s
(1995) research is worth noting, experience has shown that a successful program in one
state does not have the same impact in all states. However, multiple focus group
participants stated that they felt institutionalization of environmental mediation would
result in cost savings for Michigan.

Again, Sipe and Stiftel’s (1995) research reported that participants rated
mediation in terms of efficiency of time, 89.8% (very & moderate categories). The
saving of time as opposed to engaging in litigation contributes to the monetary cost
savings associated with mediation.

As in monetary efficiency, multiple focus group participants felt that time savings
would result with the institutionalization of environmental mediation in Michigan. One
participant expressed that his experience has been that when lawyers become involved in
environmental disputes, the dispute will take more than one year to resolve.

This analysis indicates that the initial review of cost and time effectiveness does
not demonstrate any barriers to implementing environmental mediation in Michigan, in

fact, the initial review provides an incentive for institutionalization.

Existence of Champions or Adversaries

The question of institutionalization entails changing the status quo, something that
does not occur easily for individuals or state institutions. Kressel, Pruitt & Associates
(1989) state that “there is a need for a strong champion, with the stature to bring together

the key actors and represent the effort to legislative and other affected interests.” (p. 162-

70

163) No “strong champion” or strong adversaries emerged during the research. The lack
of a strong champion is clearly an indication that institutionalization would be very
difficult.

The survey results showed that there was approximately an equal amount of
advocates and adversaries of the idea of institutionalizing environmental mediation in
Michigan. Since many of the survey participants are individuals in a position of influence
(legislators, lobbyists, managers and upper management in state agencies) the potential
exists for a champion to emerge. However, even though the survey and focus group
results were positive towards environmental mediation, institutionalization requires more
than positive views. When dealing with a large institution, such as state government,
successful institutionalization requires a champion willing to expend energy and skill in
order to create change in a change resistant organization. If a champion does not emerge,

institutionalization of environmental mediation would not be appropriate.

Stakeholder Perception of Environmental Mediation

The survey results show that the stakeholders have overwhelming positive
perception of environmental mediation. In response to the question “In general, do you
feel that environmental mediation is a valid method to address some natural resource and
[or environmental conflicts?” 90.91% of the respondents choose “yes.” In response to the
question “In general, do you feel that environmental mediation is a valid method to
address some natural resource and lor environmental conflicts in N11?” 90.48% of the
respondents choose “yes.” This level of support for environmental mediation is
exceptionally high. Suspiciously high, except for the fact that the focus group results

corroborate the high level of positive perception of environmental mediation.

71

Neil and Stiftel’s research found similar positive stakeholder perceptions,
“participants indicated that they were very satisfied with the mediation process, the final
agreement, and the mediator” (1995, p. 139). Clearly, the application of the stakeholder
perception criterion to the research indicates the appropriateness of environmental
institutionalization.

Stakeholder Supp_ort or Qpppsition to Institutionalization of Environmental
Mediation

In response to the question “Should MI government institutionalize environmental
mediation (create a staff and office)?” 48.48% of the respondents choose “yes.” As noted
in the discussion of the findings chapter, it is unclear if the results indicate that a majority
feel institutionalization is inappropriate or if the ambiguity of the term
“institutionalization” created the response. The uncertainty arises from the fact that the
focus group felt that institutionalization was not clearly defined and that in question 15.
the majority of survey respondents choose the most extensive forms of institutionalization
over less institutionalized forms of environmental mediation. If the face value results of
question 12. were taken, then it would be reasonable to expect that a majority would
choose the less institutionalized form of environmental mediation in question 15. It is
worth noting that the pre and post focus group surveys showed that public discussion
resulted in changes, some participants who opposed institutionalization changed to
supporters.

Kressel, Pruitt and Associates (1989) suggest caution when discussing
institutionalization since the ADR community’s perception of a need for institutionalizing

mediation is higher than the perception of a need among policy makers and the general

72

public. The survey results are unclear, the focus group indicates support for
institutionalization, and the literature cautions against zealousness for institutionalization.
Further exploration of stakeholder support would be beneficial, at this time the criterion
does not clearly indicate appropriateness or inappropriateness of institutionalization.
Review of the current research as applied to this criterion seems to warrant tentative
institutionalization.

Funding Availabilig

When exploring the question of institutionalization, discussion of funding for the
related creation and changes inherent to institutionalization is crucial. Even though
institutional of environmental mediation has the potential to reduce the costs associated
with environmental conflicts, there would clearly be “start-up” costs. One member of
the focus group felt that the issue was not finding funding, many larger organizations
could easily afford the cost of mediation. The problem was finding funding that
maintained the neutrality of the mediation process. Having a single funding source would
clearly create a problem of perception of neutrality when the funding organization is
utilizing the mediation process.

The experiences of Florida, Hawai’i, and Montana (see Literature Review)
indicate that funding is an important issue. The neutral location of Florida (university)
and Hawai’i’s (court) mediation programs allow them to receive state frmding while still
engaging in disputes that involve government. Montana’s mediation program has had to
expend time and resources in the continuous search for funding due to their limited state

funding.

73

The crucial part of the funding question for this research is “Will funding
availability impact the appropriateness of institutionalization?” If the research showed
that there was clearly, no source of funding, then institutionalization of environmental
mediation would be inappropriate. The focus group discussion indicated that the funding
question would need to be addressed but the discussion did not indicate that the funding
question resulted in institutionalization being inappropriate. The current research appears

to indicate that institutionalization is appropriate in the context of the funding question.

Availabilig of Skilled Environmental Mediators

The availability of skilled environmental mediators is a serious issue when
reviewing the question of institutionalization of environmental mediation. The literature
(Susskind and Cruikshank, 1987; Kressel, Pruitt and Associates, 1989; and SPIDR report,
1997) discussed the importance of a neutral and skilled mediator in dispute resolution.
The focus group discussed the importance of an institutionalized program creating a
positive track record in order to be successful and secure future.

Within the State of Michigan there is currently a very limited number of skilled
environmental mediators. However, the limited number of mediators does not mean that
institutionalization is inappropriate. It is unlikely that any initial program would require a
large number of mediators. The State of Michigan does have a pool of trained and
experienced community mediators that could, with additional training, create a larger
pool of environmental mediators to draw on. Additionally, there is a national pool of
environmental mediators that can be drawn on. Currently the Environmental Protection

Agency is in the process of creating a list of “qualified” mediators that federal agencies

74

will be able to draw on. Since skilled environmental mediators would be available, this

criterion indicates that institutionalization would be appropriate.

Question Raised by Literature Review

Kressel, Pruitt and Associates (1989) felt that something must shift stakeholders
from the status quo in order for stakeholders to take the risk of utilizing a new conflict
resolution method. The survey showed that a majority of the respondents felt that the
future would bring an increase in environmental disputes (#4). Additionally, a majority
of the survey respondents indicated dissatisfaction with the Michigan court system’s
ability to address environmental disputes (#6). Currently, there is dissatisfaction with the
status quo and this dissatisfaction will not be helped by the potential for increasing
conflicts.

As discussed earlier, the survey questions regarding institutionalization do not
provide a clear mandate for or against institutionalization. The focus group resulted in
participants stating that they felt institutionalization was worth exploring further due to
the potential benefits.

Clearly there is not a crisis providing the motivation for change, however, there
does seem to be a level dissatisfaction that is motivating some stakeholders to
advocate exploring institutionalization of environmental mediation.

Recommendation

Based on this research, outreach (creation of public forums) and research of
different institutionalization options should be conducted. The public forums need to
firrther the process of exploration and debate that occurred in the focus group. The

outreach should be conducted in a way that allows all participants to share their

75

experiences and express concerns. The focus group was composed of individuals from
different stakeholder communities, the diversity of environmental, legal, institutional,
economic, and mediation knowledge provided a rich environment in which the
participants could explore potential problems and answers. Future public forums should
have participants with diverse backgrounds to allow full exploration of questions and
encourage thorough debate.

The public forums will serve two functions, determine if a champion exists and
provide information for future research. The pursuit of more public forums would
expand the number of people involved and provide the time for those involved to reflect
and decide on their level of support for institutionalizing environmental mediation. The
additional time will help provide a more definitive answer to the question; does a
champion(s) exist?

The next level of research should focus on the different forms of
institutionalization that would be appropriate in Michigan. Institutionalization questions
could be addressed with an organizational analysis of the environmental and legal
government structures of Michigan. However, organizational analysis alone would not be
sufficient. The review of state mediation programs conducted by this research should be
expanded on and future public forums should be utilized as another source of Michigan
specific information. Some of the specific questions that future research and public
debates should address are: what forms of environmental mediation are appropriate,
organizational structure of environmental mediation program, location of program,

funding of program, scope of disputes addressed, role of program in relation to other state

76

programs, development of evaluation criteria, relationship of program with court system,

and public participation in disputes involving government.

APPENDICES

78

APPENDD( A

SURVEY

Name Date
Organization Sex: M F

Position

 

Party Affiliation (only for Legislature): Dem. Rep. Indp.
Committee (only for Legislature): Senate Jud. House Jud. Senate Env. House Env.
Education Level: H.S. Bachelor Master J.D. Ph.D. Other:

1. Please rate your knowledge of judicial issues (court system, laws,
strength/weaknesses) in MI; compared to the average citizen.

Extensive knowledge Above average Average Below average Little knowledge

2. Please rate your knowledge of natural resource and environmental issues in MI;
compared to the average citizen.

Extensive knowledge Above average Average Below average little knowledge

3. To what degree do you feel that citizens and organizations in MI are currently
involved in natural resource and/or environmental conflict?

Extensive conflict Above average Average Below average Little conflict

4. To what degree do you feel that citizens and organizations in MI will be involved in
natural resource and/or environmental conflict in the future?

Extensive conflict Above average Average Below average Little conflict

5. To what degree do you feel that MI state government should play a role in addressing
natural resource and/or environmental conflict?

Extensive More than current level Current level Less than current level Minimal

79

6. Please rate the MI court system’s ability to address natural resource and/or
environmental conflict.

Very satisfied Moderately Satisfied A little dissatisfied Very dissatisfied

7. Has your organization been involved in a natural resource and/or environmental
conflict?

Yes No
8. Have you been involved in a natural resource and/or environmental conflict?
Yes No

9. Have you heard of: Yes No Alternative Dispute Resolution (ADR)
Yes No Arbitration
Yes No Labor Mediation
Yes No Community Mediation

Yes No MI‘s Community Mediation program

Yes No MTs Agricultural Mediation program

Yes No Community Dispute Resolution Act 260 of
1988

Yes No Environmental Mediation

Yes No Natural Resource Conflict Management

What can you tell me about the terms that you have heard of?

10. In general, do you feel that environmental mediation is a valid method to address
some natural resource and/or environmental conflicts?

Yes No

11. In general, do you feel that environmental mediation is a valid method to address
some natural resource and/or environmental conflicts in MI?

Yes No

12. Should MI government institutionalize environmental mediation (create a staff and
office)?

Yes No

13. If MI government institutionalized environmental mediation, where should it be
housed?

14. Who should pay for it? How?

15. If environmental mediation was institutionalized in MI, to what degree would you
want the institutionalization to occur? (circle one)

1) A list of available mediators is maintained.

2) In addition to 1; Legislation allowing state agencies and private parties to use
mediation.

3) In addition to 1 & 2; The DEQ, DNR, and MDA each have a staff person that assists
the agency with mediation.

4) In addition to l, 2 & 3; Creation of an office that provides training, information, and
coordinates mediation services.

5) In addition to l, 2, 3 & 4; Creation of legislation that encouraged the use of mediation
by state agencies, courts, and private parties.

81

APPENDIX B

FOCUS GROUP

August 3'", 1998
12:00

Introduction

02° Who I am (Nick White, RD, MSU, Master Thesis).

0:.

O
9.0

My research looks at the question is it appropriate or inappropriate to institutionalize
environmental mediation in MI?

This is 1 of 2 data collection methods, earlier surveys were given to a larger number
of people.

There are six stakeholder fields represented here (legislative, judicial, environmental,
industry, state regulating agencies, and private sector).

I would like to remind everyone that no one is speaking on behalf of an organization
or agency, but from experience working in a respective field.

You are not expected to speak for your respective field. The purpose of this focus
group is to bring your knowledge and experience, from your field, to bear on the
research question. Other people in your field have filled out a survey, however, the
surveys were completed in isolation. Hopefully by bringing individuals from the
different fields together, issues that were not brought out by the survey will be
brought out today.

Define Facilitation, Mediation (Neutral, non-binding, voluntary), Arbitration,
Alternative Dispute Resolution (ADR).

Define institutionalization (formalization of mediation by the state of Michigan).

12:10

Round Robin

.3.
{0

R will give us a brief background and take 5-10 min.
Have you ever been involved in a natural resource or environmental dispute?
Have any lasted more than 1 year? If so, how long?

Identijy one person, ask that person to briefly summarize the dispute.

If that person does not articulate, ask them to articulate $ cast, time cost,
organization cost, productivity result of conflict.

Currently what methods are available to address environmental conflicts?

Have you ever been involved in FacilitationMediation/Arbitration, if so which?
Have you ever been involved in Facilitation/Mediation/Arbitration for environmental
conflicts, if so which?

82

Open Questions to the Group

02° Do you feel that environmental mediation is a valid method to address some natural
resource and/or environmental conflicts?

Do you feel that environmental mediation is a valid method to address some natural
resource and/or environmental conflicts in MI?

Should MI government institutionalize environmental mediation?

If MI government institutionalized environmental mediation, where should it be
housed?

0:0 Who should pay for it?

0
0.0

O O
0.. 0..

Round Robin

03° What concerns you most about institutionalizing environmental mediation?
03' What do you see as the greatest benefit, if any?

12:50 Ask members to fill out second page of survey before they leave at 1:00

APPENDIX C
FOCUS GROUP DEFINITIONS

Facilitation was defined as a process that involved a neutral third party that
focused on promoting communication, while not participating in the substantive part of
the discussion. Mediation was defined as a process that involved a neutral third party that
focused on promoting communication and could become involved in substantive
discussion if it promoted communication between disputing parties. Both of the above
processes were defined as voluntary and non-binding, unless the disputants freely entered
into a contractual agreement as part of the resolution. Arbitration was defined as a
process that involved a neutral third party where the disputants presented their arguments
and the arbitrator made a decision, could be binding or non-binding. Institutionalization
of environmental mediation was defined as formalization of mediation by the state of

Michigan.

BIBLIOGRAPHY

BIBLIOGRAPHY

Babbie, Earl. Survey Research Methods. Belmont, CA: Wadsworth Publishing
Company, 1990.

Bacow, Lawrence and Wheeler, Michael. Environmental Dispute Resolution. New
York: Plenum Press, 1987.

Bingham, Gail. Resolving Environmental Disputes. Washington, DC: The
Conservation Foundation, 1986.

Beckenbaugh, Scott. Director of Upper Midwest, Federal Mediation and Conciliation
Service. Phone Conversation, October 1, 1997.

Browne, William and VerBurg, Kenneth. Michigan Politics and Government. Lincoln,
NB: University of Nebraska Press, 1995.

Center for Alternative Dispute Resolution, The Judiciary, State of Hawai’i, Annual
Report 1996-1997.

Creswell, John. Research Desi alitative & titative A
Thousand Oaks, CA.: Sage Publications, 1994.

Crowfoot, James and Wondolleck, Julia. Environmental Disputes: Community
Involvement in Conflict Resolutiop. Washington, DC: Island Press, 1990.

DEQ, Michigan Department of Environmental Quality. Sites confirmed during phone
conversation, (517) 373-8815, October 16, 1997.

EPA, Environmental Protection Agency. Consumption Advisory confirmed during
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Fisher, Roger and Ury, William. Getting to Yes: Negotiating Aggpmgnt Without
Giving In. 2d ed. New York, NY: Viking Penguin, 1991.

Florida Conflict Resolution Consortium Progress Report. 1992-1994. The Florida
State University, Shaw Bldg, Suite 132, 2031 E. Paul Dirac Dr., Tallahassee, FL
32310-4161. (850) 644~6320.

Folger, Joseph and Jones, Tricia ed., New Directions in Mediation Communication
Research and Pem'ves. Thousand Oaks, CA: Sage Publications, 1994.

Hawai’i - ADR related Statues & Rules, Prepared by the Hawai’i State
Judiciary’s Center for Alternative Dispute Resolution.

86

 

Kent, Elizabeth. Director of the Center for Alternative Dispute Resolution. Hawai’i.
Phone conversation, (808) 522-6464, June 10, 1998.

Kressel, Pruitt, & Associates. Mediation Research. San Francisco, CA: Jossey-Bass
Publisher, 1989.

Krueger, Richard. Focus Groups A Practical Guide for Applied Research. Thousand
Oaks, CA: Sage Publications, 1994.

McKinney, Matthew. “The Challenge of Funding Consensus-Building Processes.”
Negotiation Journal, July 1997, p. 235-241.

Michigan in Brief. Public Sector Consultants, Inc. 1998-1999.

Michigan Mediation Training Manual. Michigan Supreme Court, 3rd revision, April,
1994.

Michigan Department of Agriculture, Acreage confirmed during phone conversation,
800 292-3939, October 16, 1997.

Mika, Harry. “An Evaluation of Michigan’s Community Dispute Resolution Program.”
Michigan Supreme Court State Court Administrative Office, 1996.

Montana Consensus Council: Building Agreement on Natural Resources and Public
Policy 1995-1996 Biennial Report. Office of the Governor, State Capitol, Helena,
MT 59620-0801. (406) 444-2075.

Moon, Ronald. “Visions of a New Legal System: Could there be a legal system that
better incorporates the strengths of ADR and existing legal institutions?” The
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Moore, Christopher. The Mediation Process. 2'“l ed. San Francisco, CA: J ossey-Bass
Inc., 1996.

Sipe, Neil and Stiftel, Bruce. "Mediating Environmental Enforcement Disputes: How
well does it work?" Environmental Impact Assessment Review, 15, p. 139-156,
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Society of Professionals in Dispute Resolution (SPIDR). “Best Practices for
Government Agencies: Guidelines for Using Collaborative Agreement-Seeking
Processes.” Report & Recommendations of the SPIDR Environmental/Public
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Washington, DC 20005. (202) 783-7277. Adopted by the SPIDR Board January
1997.

87

 

Susskind, Lawrence. "Statewide Offices of Mediation: Experiments in Public
Policy." Dispute Resolution Forum, Dec. 1987.

Susskind, Lawrence and Cruikshank, Jeffrey. Breaking the Impasse. New York:
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Talbot, Allan. Settling Things: Six Case Studies in Environmental Mediation.
Conservation Foundation, 1983.

General References
"An Arbitration journal report: the use of ADR methods in environmental disputes.” The
Arbitration Journal, March 1992.
Daniels, Steven and Walker, Gregg. "Managing Local Environmental Conflict Amidst

National Controversy." The International Journal of Conflict Management, 1995,
v6, n3 p. 290.

Robson, Colin. Real World Research: A Respurce for Social Scienp'sts _apd Practitipner-
Researchers. Cambridge, MA: Blackwell Publishers, 1993

”Viewpoint: Alternative Dispute Resolution in Public Land Management.” Journal
of Range Management, Jan. 1994. v