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But one subject has embroiled national and state agencies, landowners, environmentalists and sportsmen more than any other-- The Allagash Wilderness Waterway (AWW).
Created by the Maine Legislature in 1966, the Allagash Wilderness Waterway is a 92-mile ribbon of lakes, ponds, rivers and streams which winds its way through northern Maine’s woods. As its name suggests, there are no permanent residents along the Allagash, making it ideal for recreational canoeists and sportsmen who seek a wilderness experience.
The Waterway was both enhanced (and its planning made more complicated) in 1970 when it was named the first state-administered component of the Wild and Scenic River System. For the next 33 years, the Allagash was the subject of ongoing legislative fights, lawsuits, controversial management plans and consent decrees between state and federal agencies.
The controversies became national news in 2002, when the environmental group American Rivers named the Allagash No. 8 on its list of the country’s 11 most endangered rivers, citing “mismanagement, too many access points and overuse of the sensitive river.”
Last year, the outgoing administration of Governor Angus King further inflamed passions by proposing yet another access point at John’s Bridge. The battle lines were quickly drawn. Johns Bridge became a symbol: for environmentalists it signalled further threats to an overburdened river, to sportsmen it represented an acknowledgment of their historic rights to use the river. Native sportsmen vs. out of state canoeists. Northern Maine vs. Southern Maine.
The fight was on, legislation was filed, and protracted litigation seemed inevitable..
And yet, four months into the new administration of Governor John Baldacci “the fighting is over,” according to one of the major protagonists.
In early April, under the leadership of Patrick McGowan, the new Maine Commissioner of Conservation, a group of 23 stakeholders and advisors gathered for a two-day facilitated retreat at the River Drivers Restaurant in Millinocket, Maine with an ambitious goal: to forge consensus on a series of agreements covering access to the river and a variety of other management issues.
Thirty hours later, exhausted but triumphant negotiators emerged from the session with “The River Drivers Agreement,” which the Governor hailed as a “comprehensive and visionary” approach to management of this precious resource. Signed and agreed to by all 23 participants, the Agreement has won broad praise as a road map for preserving both the wilderness character of the waterway and recreational access to it.”
I was the neutral facilitator who was asked by Commissioner McGowan to develop retreat guidelines, interview participants in advance, and facilitate the event.
In reflecting on what factors led to this result, at least 10 elements came together to produce this success:
1) The issue was “ripe” for resolution. The parties had been fighting for a generation, rehashing time and again their positions. They were exhausted, they saw ongoing battles on the horizon with no prospect of “victory” for anyone. With the turnovers in administrations, everyone saw a glimmer of hope that a different path might be possible.
Possible, but not likely, many thought. When the idea of a retreat to build consensus was first proposed, one of the participants said, “I laughed. Not possible, I said. Positions are too hardened.” As a facilitator, I reminded participants that such skepticism was welcomed and expected.
A series of retreats under the previous administration had reached agreement on some marginal areas, but resulted in no agreement on the crucial issues. According to many, “The timing was ideal” for a new approach.
2) The right players were at the table. All of the various interests were represented: northern Maine residents, wilderness camp owners, sportsmen’s groups, Maine guides, environmental organizations, legislators, and state and federal agencies. In addition, a series of “advisors” were present, whose wisdom and experience added realism to the discussion.
3) Preparatory Assessment Interviews were essential. I spoke individually with more than a dozen of the retreat participants before we ever entered the retreat. In these interviews, I was able to discern where there were areas of commonality which could serve as the basis for Agreement (primarily the shared love for this unique river). I was also able to assess which issues should be postponed for later in the retreat, because of the “heat” they would generate.
4) There was strong agency leadership in convening the group. Commissioners McGowan’s letter of invitation to retreat participants acknowledged that the task was “undeniably challenging” but set out the Administration’s “hope and expectation” that the retreat would result in a consensus agreement.
At the retreat itself, McGowan was both cheerleader and taskmaster for the process, insisting that “all of the issues would be resolved or none of them would be.”
5) Participants agreed to disagree. One of the hottest issues in the decades-long controversy surrounding the waterway was the “original intent” of the documents which created the waterway. To some, the intent was crystal clear and had to be honored. To others, the “intent” was more murky, the product of legislative give-and-take and compromise.
Debates on this issue had consumed enormous time and energy and polarized the sides. Since it seemed this group could have no more success in reaching agreement on the “intent” issue than others before it, the retreat spent only a brief time examining these historical documents, more for context than for argument. Everyone saw early on that agreement on intent was not crucial to addressing the more fundamental issues. They agreed to disagree.
6) Participants postponed talk of “deal breakers.” The Department of Conservation was well aware that there were certain issues for which each side would “fall on its sword.” If these issues emerged too early, before some momentum toward agreement was established, the entire process could break down as had others before it. The group’s groundrules encouraged parties to remain flexible, to avoid drawing “lines in the sand.”
7) A starting small group exercise was key. From the assessment interviews it became clear that, despite their positioning, the parties had much in common. If an exercise could be devised to illustrate those shared values and interests, it could set the groundwork for agreement. It also was clear that if participants started their work in the large group, there would be great temptation to posture and reiterate past arguments, demonizing “the other.” (Indeed, as a facilitator I named the “great tension” that existed in the room at the outset). For this to work, participants had to begin to see one another as people who appreciated the river for many of the same reasons.
From those two insights, a small group exercise was developed in which participants told others “the story” of their first trip on the Allagash, their best trip, and “why” those trips were so special. From a large group debriefing of the small group discussions, it emerged that among the group as a whole, there were more than 500 years experience on this special river. Participants called this exercise a “breakthrough.”
8) A small drafting group and offline discussions proved invaluable. At the end of the first day, a number of tentative agreements had been reached, but the toughest issues remained unresolved. With the larger group’s permission, a smaller drafting group met late into the evening to develop proposals on those “core” issues for the larger group’s consideration. The proposals which emerged from that group’s work were discussed over coffee, in the restaurant lounge, and in the front seats of cars and pickups by various participants until midnight, and starting again at 6 a.m. the next day. The work of the drafting group, when combined with the more relaxed “offline” discussions among participants from the same perspective, allowed the agreement process to evolve. Reservations were addressed, people questioned whether others were willing to make certain adjustments, some “bottom lines” became clear.
9) Creative and timely proposals emerged from Deep Listening. As the large group worked through certain issues, there were hints that creative compromise was in the air. Nevertheless, to tackle the toughest issues, Deputy DOC Commissioner Karin Tilberg realized based on her listening throughout the day that a “package” deal had to be constructed. The package approach would address the interests of all, but no party would get everything they wanted.
Ms. Tilberg’s intervention was timely. By insisting to the drafting group that the proposals on the remaining “core issues” be treated as a package, by tieing together disparate issues, she offered the drafting group a more comprehensive solution (based on the conversations throughout the day which were cited) than could otherwise have been devised.
10) Rituals of closure and PR were considered. At the end of this tough and exhausting negotiating session, it was essential to develop a “one text” agreement, which simply set forth in clear terms the agreements which had been reached. This agreement was then brought to the entire group for review and minor adjustments were made. Finally, each and every person in the room, beginning with Commissioner McGowan, signed the document. Then each person in the room was given the opportunity to say what s/he needed to by way of closure. The amazement and delight expressed, the appreciation of each person’s hard work, reinforced the sense of accomplishment.
The group also affirmed the importance of no one claiming “victory” after emerging from this session. In truth all parties could claim their essential interests were addressed. As one participant said, “I think the differences between us were vastly overblown...we just needed to sit down and talk about it.”
What can we learn from this Case Study? The influences in every multi-party, multi-issue public policy mediation are different. But by reflecting on the factors which were successful here, we may obtain guidance about what might work well in other situations.
Jonathan W. Reitman is a practicing attorney since 1978; full time mediator, facilitator and arbitrator since 1990. Practice concentrates on mediation, training, conflict resolution and consulting. Substantial experience (1000+cases) in the mediation and arbitration of a variety of complex civil disputes, including business, commercial and insurance matters; employment, labor relations and workers' compensation; environmental and land use; boundary and property disputes; construction project matters; family law, and public policy matters involving state and federal agencies. Extensive facilitation of multi-party stakeholder groups on public policy issues (environment, telecommunications, higher education, transportation, workforce development), involving as many as 60 parties. Has served as Court-appointed mediator, referee or Guardian ad Litem in more than 200 cases.
Frequent lecturer and trainer on ADR, including presentations at national and regional conferences; Adjunct Faculty, University of Maine School of Law since 1996; has conducted multi-ethnic workshops on Conflict Transformation in Bosnia and Republika Srpska; has trained participants from 15 different countries in England and Italy. Trained Arabs and Jews in Negotiation, Mediation and Conflict Management, Israel College, Tel Aviv, Israel, 2001-2006.
Facilitator of multi-day strategic planning retreats for statewide university systems, law firms, a national environmental coalitions, a national conference on "Reinventing Justice," and a national advocacy organization on end of life issues. Has designed and facilitated community meetings with 250-300 attending on highly contentious ecopnomic development, land use, community services and transportation issues. Sample facilitation list available on request.
Co-chair of 2000 Annual Conference and Board member, New England Chapter ofAssociation for Conflict Resolution (ACR); former chair and newsletter editor, International Sector of Society for Professionals in Dispute Resolution (SPIDR). Membership on mediation panels including American Arbitration Association Labor, Commercial Panels; CADRES Land Use, Civil Litigation and Domestic Relations panels; General Services Administration Panel of Mediators for EEO disputes in federal agencies; United States Postal Service REDRESS Panel of Mediators; National Employment Mediation Services (NEMS); National Roster of Environmental Conflict Resolution and Consensus Building Professionals, U.S. Institute for Environmental Conflict Resolution.
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