Comparing Collaborative and Traditional Conflict Management in Environmental Issues


by Christina Simokat

July 2008

Christina  Simokat

Abstract:

Collaborative processes have been called the new "dominant paradigm" (Gillingham, 2001; Lubell, 2004) in watershed management, and government agencies such as the EPA are encouraging and looking to expand this style of natural resource management. Collaboratives are said to increase social capital and produce more comprehensive policy decisions. But there are also legitimate criticisms of the process and the results, and most frequently cited is the lack of long-term data collection on the quality and durability of agreements from collaboratives. Given this lack of evaluation, why are there increasing numbers of collaborative processes for managing natural resources? Do collaborative processes provide a realistic opportunity to improve relationship and instrumental goals? If so, are these effects enduring, and do they have tangible results for the environment and for communities? This paper reviews the literature on this topic, and the findings indicate ambiguity about the definition of a collaborative process and its benefits, and a need for more empirical research on the processes for watershed management and the effects, short and long term, on communities.

Introduction

While environmental conflict management has been happening as long as there have been disputes over natural resources, it is relatively new as a professional field. It requires people representing a wide spectrum of interests to come together and interact, usually for a long period of time, with or without a neutral facilitator or mediator, to prevent or resolve a dispute which is likely to be technologically, politically and psychologically complex. The last two decades in the United States have seen an increased emphasis on public engagement which has introduced a host of processes – facilitated dialogue, public conversations, cooperative problem-solving or decision-making, community-based collaboratives. ‘Collaborative’ is the new buzzword in natural resource management especially, and government officials, nonprofit organizations, community members, and members of the business sector are participating in these forums with increasing regularity.

There is a general feeling that collaborative processes are beneficial and positive Wooley, McGinnis & Kellner, 2002; Weible, Sabatier & Lubell, 2004; Marsh, 2002), and some of this belief is rooted in solid communication and conflict resolution theory. Collaboratives are said to increase social capital and produce more comprehensive policy decisions (Lubell, 2004; Weible, et al., 2004). But there are also legitimate criticisms of the process and the results, both from practitioners and stakeholders (Weible, et al., 2004; Imperial, 2005; Marsh, 2002). One of the problems most frequently cited by researchers is the lack of long-term data collection on the quality and durability of agreements from collaboratives (Weible, et al., 2004; Imperial, 2005).

Given this lack of evaluation, why are there increasing numbers of collaborative processes for managing natural resources? Do collaborative processes provide a realistic opportunity to improve relationship and instrumental goals? If so, are these effects enduring, and do they have tangible results for the environment and for communities?

The hypothesis tested by this review is that collaborative processes have become the “dominant paradigm” (Gillingham, 2001; Lubell, 2004) because they produce more benefits for stakeholders, the environment and communities than do traditional processes. This paper reviews the literature to examine this hypothesis.

Search methodology

While natural resource dispute resolution processes are used around the world, this paper will be limited to those occurring within watersheds within the United States. Collaborative processes in watershed management are better studied than those used in other types of natural resource management. Watershed cases in the United States are comparable for the purposes of this review because they involve similar US governmental structures and agencies, and similar types of nongovernmental organizations (NGOs) – in some cases the chapter of the same national NGO.

The work reviewed in this paper includes twelve original investigations and three legal articles from scholarly journals accessed in online databases (Academic Search Premier, Expanded Academic and JSTOR). Papers selected fall into two main groups: those which define the concept of collaborative process, and those which analyze the use and benefits of collaboratives in watershed management. Many definitional papers were reviewed, and those included in this review were those referenced by other researchers, and those which were not subscribing to the ideology of any one field: social science, law, natural science, conflict resolution, psychology, or any other. Definitional papers included one study done outside the US. Analysis papers were selected if they used case studies and other forms of empirical analysis. Additionally, analysis papers were chosen which discussed potential results for the community as well as the environment.

Analysis papers were further grouped into those primarily discussing the collaborative process in watershed management, and those primarily discussing the traditional approach. Only one paper was found that was a direct comparison of the traditional and the collaborative approaches in the same natural resource, but this resource was a marine protected area rather than a watershed, so it was not included in analysis but will be mentioned in the discussion following.

Definitions

A watershed is defined as “any sloping surface that sheds water” or “the whole region or area contributing to the supply of a river or lake” (Wooley, McGinnis & Kellner, 2002).

The literature reveals that there are many terms in use to describe the different types of conflict resolution of natural resource disputes. Collaborative processes for watersheds are also called a watershed approach or watershed planning (O’Neill, 2005; Lubell, 2004). For the purposes of this paper, I will primarily use the broad definitions described by Fleischer and Pettigrew (2002) of traditional and collaborative processes.

Traditional processes, also called top-down decision-making, adjudicative dispute resolution, and the “governance paradigm” (Weible, Sabatier & Lubell, 2004), are characterized by decision-making from a single authority. This authority could be a governmental official or committee, an administrator, or a judge in litigation or arbitration (Fleischer & Pettigrew, 2002). The agenda for deliberation in a traditional process is determined by a single entity. Public comment may in some cases be solicited, but direct public participation is not typical of this method. Market forces have also been included as a traditional process of dispute resolution (Imperial, 2005) as have typical advocacy and citizen-based activism techniques such as lobbying and petitions (Moore & Koontz, 2003).

The collaborative process is described as a consensus-building effort (Fleischer & Pettigrew, 2002) which values public participation (McGinnis et al, 1999; O’Neill, 2005). It can include governmental and nongovernmental (NGO) agencies, as well as local groups and interested individuals (Gillingham, 2001). Especially in terms of governmental agencies, the scope of the process includes activities which would be unlikely to be accomplished by one entity acting alone (Imperial, 2005). The policy being encouraged by the Environmental Protection Agency (EPA) and the Secretaries of Agriculture and the Interior emphasizes the involvement of all people affected by the watershed in the decision-making process (O’Neill, 2005; Moore & Koontz, 2003; Weible et al, 2004). Collaborative processes are also called the watershed management approach (O’Neill, 2005; Weible et al, 2004).

Collaborative process

A watershed collaborative is often formed in response to problems or disputes associated with the resource. McGinnis, Wooley and Gamman (1999) propose that collaboratives can go beyond problem-solving and establish connections between members based on shared values. The authors performed a factor analysis of survey data from participants in three watershed collaboratives to determine the levels of value-based commonalities and conflicts. They theorize that successful collaboration can be a result of commonly held beliefs and goals, rather than just dispute resolution.

They define a watershed as a “social construct” (p. 2), emphasizing the relationships between collaborative members to define the region and its goals. The findings indicate few significant value differences among participants, and suggest that the group and decision-making processes used are the crucial factors for success. Part of the process, the authors contend, is the evolution of the group as a top-down, governmental initiative, or as a grassroots, community supported activity. The case of the failed Santa Ynez River Watershed group is used as an example of the former type of collaborative, which was dissolved following a protest by a local coalition which felt its interests were not being fairly represented. Collaborative benefits demonstrated in these cases included sharing of technical resources and access to public forums to include the community in the process.

The number of cases investigated in this study was small, with only one failed group being examined, and would have benefited from the examination of other failed groups. Further, the authors assume that “alternative dispute resolution processes imply an absence of shared values” (p. 9) which is not necessarily the case, at least in neutral-facilitated conflict resolution. While noting the potential benefits of resolving community tension over watershed issues and building long term positive relationships among members, the conclusions would be better supported by a wider investigation.

Imperial (2005) addressed the collaborative process involving government agencies, nongovernmental organizations (NGOs) and local groups from the perspective of the public manager. Using a cross-case analysis he compared six watershed networks in the US which had a variety of collaborative activities. He conducted confidential interviews with group members representing a variety of factions, and observed activities and meetings. Imperial theorized that participants collaborated based on the perception, possibly from experience or previous cases, that their goals surrounding the watershed could not be met acting alone.

The benefits noted from the collaborative process included an emphasis on the commonalities among members, leading to improved governance through shared resources and expertise. Imperial claims that data from scientific and technical sources can potentially be better implemented through a collaborative which includes other non-technical members. An iterative approach is recommended to allow members to learn how to work together in this environment and to develop productive relationships.

Conversely, Imperial states competition between governmental agencies and other members in terms of regulations, goals, and the resources needed to implement them could result in collaboratives being unable to fully utilize all the advantages of the process. Another challenge discussed is the tendency for collaboratives to establish their own bureaucracy over time and begin to shift their goals to extending the existence of the collaborative and emphasizing benefits for the collaborative rather than for watershed goals. Imperial asserts that the collaborative approach would not be correct for “controversial problems involving win-lose situations” (p. 308), but who would define those types of problems and determine if they were indeed zero-sum situations? Possibly that would be an appropriate topic for a collaborative to address.

Imperial doesn’t directly compare these collaboratives to traditional processes in this paper. There is also no discussion of the roles of less organized groups such as individual residents and landowners surrounding a watershed.

In contrast, Lubell (2004) examined the role of “grassroots stakeholders” in watershed collaboratives. Using a survey of farmers involved in a river watershed group in Florida, the author performed a statistical analysis to determine why the farmer stakeholders chose to participate in this process. Farmers in this watershed were the largest non-point source polluters, and therefore their involvement as stakeholders was important. He indicated that while he had a low response rate, the respondents were representative of population according to census data. His findings showed that relationships and social capital are indeed important motivators for farmer participation in a collaborative. Further, Lubell demonstrated that the collaborative can assist in coordination between local and federal government, and can improve relationships between local government and farmers, which increased implementation of agreements. While Lubell hoped to generalize these findings to hold true for other farming communities in watershed areas in the United States, further case studies would be indicated.

Community benefits from watershed collaboratives may vary in different populations. O’Neill (2005) reviewed the literature, including case studies, on watershed groups in urban and rural settings and determined the distribution of the features of those groups which led to success. Having found that these features were not evenly distributed, she analyzed, through Henri Lefebvre’s social space framework, the reasons for this and what it means to conveners of a watershed collaborative. The author touches on several important questions for watershed groups: how are members to define the make-up of their community and the affected population, and then how are they to contact these people and educate them about the process so the affected people may decide if they want to participate? Noting that low income residents tend to rely more on experiential data than scientific, she speculates that collaboratives started by low income residents of watershed areas, who then brought in scientists and other experts to collaborate, would have the greatest success.

However, this paper had a number of weaknesses. The author did not state her criteria for paper selection, and could be perceived to have a bias against collaboratives in rural settings, in that she highlighted few positive features. O’Neill did not define terms such as success, rural, or urban. She assumed rural to mean “small” and “homogenous” (p. 242) which may not always be the case in the United States. It is not clear that all her findings and recommendations are based in the research.

Traditional process

Litigation

Litigation in court is a common traditional approach to dispute resolution. Typically, cases reviewed in the literature begin with the trial, trial preparation, or settlement, and there is a lack of information on what approaches were used prior to court proceedings. Following are two examples of litigation over damage to watersheds.

In 2003 the City of Tulsa, Oklahoma and its’ city utility sued a number of large chicken farmers and the City of Decatur, Arkansas over excess phosphorus runoff from Decatur polluting the Eucha/Spavinaw watershed and therefore the water supply for Tulsa. While there is no indication of the presence of a collaborative management group associated with this watershed, there were regulations in place at least throughout the prior decade, but compliance was not monitored (DeLaune et. al., 2006). The plaintiffs were successful in compelling the defendants to produce better standards for pollution prevention, though no mention was made of methods to improve compliance or implementation of these regulations.

In 2000, Robert Friedland, director of the bankrupt Summitville gold mine in Colorado which was leaking cyanide and acid mine-water into the watershed, agreed to pay $27.75 million dollars over ten years into a government-controlled fund for environmental cleanup of the watershed which is estimated to cost $170 million dollars (Engineering & Mining Journal, 2001). After four and a half years of litigation on this case, Friedland agreed to this settlement but did not admit any responsibility for the environmental damage. Other cases have been filed between Friedland and other related parties, and between the government and related contractors, and this settlement does not prohibit Friedland from pursuing court cases against subcontractors. It was not stated when or how the environmental cleanup was going to proceed.

Regulation

Regulatory mechanisms are another form of traditional dispute resolution. Seymour (2004) explored the use of CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act also referred to as the Superfund, to compel mining companies through litigation to clean up environmental damage to watersheds affected by mining processes and “tens of thousands” (p. 800) of abandoned mines. Prior to CERCLA there were insufficient regulations to address the mitigation of these sites. However, there are limitations to CERCLA as well. It cannot be used where the mine’s owners can no longer be found. If litigation is used, it tends to be costly and time-consuming. CERCLA may not have the necessary scope to address all the effects in the watershed. Typically a federal manager is appointed to be the lead in a CERCLA-related clean up, and the manager and the EPA often have disputes which also take time to address.

Negotiation with indirect or no public participation

Traditional approaches may include mixed processes which seek to increase participation and implementation of agreements through a balance of mandatory and voluntary mechanisms. Cosens (2003) examined two case studies involving negotiations over water rights in watersheds which were instigated through a top-down approach. She claimed that in both cases negotiations were selected as a means of dispute resolution because of the inefficiency of traditional processes used up to that point, observing that the laws regulating these cases did not have the flexibility nor the currency to address present-day issues. While negotiation is generally referred to as a type of alternative dispute resolution, in these two cases the processes more closely resembled traditional approaches in that they lacked meaningful and diverse public involvement in decision-making. In this paper, as in many related studies, there are not clear definitions of terms to describe members, such as public entity, private entity, federal, state and local governmental agency, individual, and public-at-large. There is confusion in these cases as to who is representing the interests of what sector of the community.

In the Milk River case, the dispute began over 100 years ago and has been the subject of federal and state legislation, such as the Winters Doctrine in 1908 granting Indian and federal water rights and the Montana Water Use Act of 1973. A negotiation process established in 1997 was able to reach an agreement in 2001, which was proposed to take five years to reach final approval. The management group, including only government agencies but soliciting input from the local public, was able to pool resources to enable the use of informational tools such as GIS, and they were able to work out jurisdictional conflicts. The author posited that the group’s goals benefit from the inherent accountability due to the members being political appointees, but that the absence of the irrigation district representatives, legally mandated in the case, from the negotiations may impede implementation of the agreement.

Eighty-five years of litigation and failed negotiation over issues relating to the Truckee River watershed led to the Truckee-Carson-Pyramid Lake Water Rights Settlement Act of 1990 and a fifteen-year negotiation. Participation in this negotiation was voluntary, which is considered a strength inasmuch as members can make their own cost/benefit analysis of participation in this method of resolution. However, it also means that any member can withdraw, which is what happened in this case, and has resulted in a less than comprehensive agreement.

While the Truckee River group members included both private and public entities, they did not include the general public in the process, but rather provided for public comment on the completed design for resolution, and many negotiating meetings were closed to the public. This protected the confidentiality of data of the members and was intended to promote more open dialogue, but it can produce problems later when the public is presented with the proposed resolution but has not seen the decision-making process so they may understand the reasons for the design of the resolution. However, without this confidentiality, it may have been more difficult to get all the parties to the negotiating table.

Cosens concluded by calling for ways to require parties to negotiate, and she stated there is a “need to negotiate against the backdrop of possible litigation”. However, in voluntary collaborative processes, the members are not legally prohibited from litigation, but in a mandatory negotiation, there may be more restrictions on legal action. At the same time, Cosens did not support the concept of national standards for the “format or content” of watershed management, claiming this would inhibit creative solutions.

Top-down decision-making

Ruhl et al. (2003) put forward a model for a state system of watershed management to align governmental agencies with the unit and allow better coordination on local and regional levels, and with the EPA. Briefly examining the state and province level watershed management programs in the US, Canada and other countries, the authors provided a framework for a “multi-tiered” system. This paper was intended to be an initial proposal and therefore did not have detailed information about the benefits to implementation of environmental improvements or suggestions about the inclusion of the public or of private entities.

Discussion

Is the collaborative process in watershed management increasing in use because it produces more benefits for stakeholders, the environment and communities than do traditional processes? Table 1 groups the general advantages and disadvantages of each process, and below is a discussion of the effect of the collaborative process on stakeholders, the environment and communities.

Overall, the literature lists more benefits associated with the collaborative than with traditional processes. However, the dearth of research into the benefits of traditional processes, or using direct comparisons between traditional and collaborative processes used in the same natural resource, makes it difficult to draw a conclusion. Further, the assessment of an outcome as an advantage or a disadvantage requires more specific and generally agreed upon definitions of these terms as they apply to each sector. As an example, McGinnis et al. (1999) declared the case of the Santa Ynez River watershed a failure when local members of the collaborative joined together to end the collaborative because they felt it wasn’t serving their interests. This could be construed as a positive effect on the community, in that it brought together ranchers, farmers and other locals to assert their interests in the face of a collaborative which was started by government rather than local groups and residents. However, this paper did not track the endurance of this group or its effect on the community or the environment past that of the dissolution of the collaborative.

Effects on the stakeholders

Stakeholders are so named because they have a demonstrable involvement in the watershed. They may include: government agencies, from local to national levels; businesses, including agriculture, surrounding landowners and residents; environmental advocates; academic researchers; and others. Because the stakeholders of a given collaborative describe such a potentially wide ranging and diverse group of people and interests, concrete benefits or costs are difficult to identify.

Benefits to stakeholders of sharing of potentially expensive technical resources and financial resources and the ability to let different levels of government agencies coordinate more effectively are noted multiple times in the literature (Lubell, 2004; Imperial, 2005; Ruhl et al.., 2003; Cosens, 2003). McGinnis et al. (1999) claim that collaboratives allow local residents and government to retain greater control over their natural resources, however, not all stakeholders would consider this a benefit. McGinnis et al. (1999) also cite the benefits of greater public participation and representation, though this is not necessarily the case, depending on the model of collaboration used, nor is it considered a benefit by all parties. Without greater clarity and definition, the effect on stakeholders is unclear.

Effects on the environment

Most of the case studies of collaborative watershed management examined focused primarily on the process of management, decision-making and conflict resolution regarding the watershed, and did not supply much information about the effect on the environment. What were the environmental recommendations made? On what were they based? Were they implemented, and if so, what were the short-term and long-term results?

One benefit of the collaborative process is increased ease of implementation of environmental improvement projects, due to the better coordination among government agencies and the lessened potential of litigation from ignored stakeholders (Lubell, 2004; Imperial, 2005). However, implementation is also vulnerable to the voluntary nature of collaboration. If a vital stakeholder chooses not to collaborate, implementation may become uncertain, regardless of the agreement of the rest of the group.

More information is needed to examine the effects of collaboratives on the environment.

Effects on the community

In this paper, community is defined as individuals not organized in a formal way and residents, but not as public agencies, a public entity, public land managers, nor the national public. The differentiation between the community and the stakeholders was made because not every collaborative process involves the community in the same way. In some cases members of the public were at the table as stakeholders or even founders of the group, and in others they were only able to make comments on the completed management plans (Cosens, 2003).

If the national public is considered in the definition of community, Fiss (1984) argues that the legal process can in some cases produce benefits by creating public policy. A dispute in one watershed may be shared by others and arguing the case publicly in court may be a more effective way of producing a general standard. However, it is doubtful whether all affected parties would have access to that forum, given financial, notification, or time constraints, to be able to give comprehensive input.

Within the literature on watershed-specific collaboratives, there was little dealing with the effect on the community in the short or long term. Some research examined who was representing the community (Lubell, 2004; O’Neill, 2005) and O’Neill stressed the importance of diversity, though it is not clear how that diversity would be defined or by whom. Lubell used the recent census to determine if his sample represented the community, though there also exists a bias in census sampling.

Direct comparisons

Weible, Sabatier and Lubell (2004) presented a direct comparison of a traditional versus a collaborative process in the same natural resource, in this case a Marine Protected Area. In this study, however, the authors did not examine which process produced more benefits and why, but instead looked at which stakeholders preferred which process. They found that stakeholders who preferred the traditional process were those who were in favor of science-based management, and included the scientists, environmentalists and government officials. These stakeholders continued to express a preference for the traditional approach, even when it proved ineffective. Ironically, the concern that pro-traditional stakeholders stated was that the results of a collaborative process would not be effective. This seemingly illogical stance reflects a lack of education about the potential of the collaborative process and perhaps also a negative experience from a previous collaboration. Educating stakeholders about dispute resolution and management options and addressing their concerns prior to the beginning of any process are clearly important steps for success.

Conclusions

Collaborative watershed management is growing in use and demonstrates benefits in some cases. However, this process is new and still being refined. Over time groups can improve their capacity for working together, resolving disputes, and implementing projects, thereby increasing benefits (Imperial, 2005; Marsh, 2002).

John Kitzhaber, former governor of Orgeon, suggests that the collaborative process is another tool, supplementing or replacing traditional processes when appropriate, but that should not be considered the only tool (Marsh, 2002). The literature indicates that collaboration encompasses a range of definitions. In the future subcategories or different models may develop which address specific situations to increase the potential for benefits to the environment, stakeholders, and the community.

Recommendations for future research

The first major environmental regulatory mechanisms in the US, such as the Endangered Species Act, Clean air and Clean Water Acts, and the National Environmental Policy Act, were only created in the early 1970s, and much litigation followed in the next decades. The 1980s saw the beginning of informal watershed networks forming (Wooley, McGinnis & Kellner, 2002). Seymour (2004) notes that in the 1990s, when regulators and others began to see the “limitations” (p. 950) of the traditional processes of dispute resolution in natural resource management, these networks became more formalized and government agencies began to embrace this collaborative form of decision and policy making. Currently watershed collaboratives are seen by some as “laboratories for testing new forms of public-private collaboration” (Platt, 2006) which could produce models transferable to other sectors.

However, the question remains: is the collaborative process used because it is the best option, or because traditional processes are not working? Collaboratives may have uncertain benefits, but some traditional processes, such as litigation, have certain costs, especially in time and money. Is collaboration being chosen on its merits, or in the absence of another method, and what might the other methods be? Until goals and outcomes in natural resource management, and the actual collaborative process itself, are better defined by all who are affected, this is difficult to assess.

As government embarks on policies which encourage collaborative processes and may even make them mandatory and institutionalized, it becomes more important to ascertain if this is the appropriate direction. Future research needs to directly address the comparison of collaborative, traditional, and other perhaps yet untried processes for management and conflict resolution of natural resources through empirical methods to ensure that future policies are positively chosen, rather than in the absence of a better alternative.

Table 1. Potential advantages and disadvantages of collaborative and traditional processes. (Simokat, 2006)

Advantages of the traditional process: Disadvantages of the traditional process:
More appropriate for win-lose, zero-sum games (Imperial, 2005) Expensive (Lubell, 2004)
Creates public policy standards (Riskin) Not time efficient (Cosens, 2003)
May save time for one side over a collaborative process, if the collaborative is a failure and litigation happens to go smoothly and quickly May not benefit environment if environmental problems go unresolved (Lubell, 2004)
May produce piecemeal solutions (Cosens, 2003)
May not be possible to proceed if all parties cannot be found (Seymour, 2004)

Advantages of the collaborative process: Disadvantages of the collaborative process:
A means of conflict resolution, Secures ecological benefits, Maintains local control of local resources, Representation and assistance for weaker parties, Equal access to scientific information, Greater participation, Accountability and legitimacy, Commitment to the process, Sustaining cultural values, Adaptive decision making (McGinnis, et al., 1999) Too much investment can result in the collaborative creating its own bureaucracy and emphasizing benefits for itself, Inappropriate in zero-sum games, Limitations on stakeholders taking full advantage of the collaborative process due to competing regulations or missions, Time consuming, Negative experiences in the collaborative can be more powerful than positive, Current government system sets agencies at odd with each other in terms of decision-making (Imperial, 2005)
Relieves regulatory burden, (Collins, et al., 2004) Often insufficient resources for success (Imperial, 2005; McGinnis et al., 1999)
Increased flexibility and breadth of discussion, Transparency. (Fleischer & Pettigrew, 2002) Environmentalists fear weak environmental benefits in the collaborative process, especially in areas with little “environmental commitment” (O’Neill, 2005)
Saves money (Lubell, 2004; McGinnis et al., 1999)

References

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Biography




Christina Simokat is a certified mediator and facilitator specializing in land use, public policy and community dispute resolution.  With an MA in Conflict Resolution and a BA in Environmental Studies, combined with experience in facilitating collaborative, consensus-building processes, Christina has a unique perspective and expertise.  She has served diverse groups nationally and internationally, including projects in Mexico and Cyprus, and has partnered with firms such as the National Conflict Resolution Center and the La Jolla Center for Dispute Resolution in managing complex, multi-party cases having significant effects on the community.  Christina is an accomplished conflict skills trainer, adjunct professor, and lecturer, and the author of several papers on environmental issues and conflict management.

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