Water, Science, and The Search for Common Ground

Address given at the
1st Australasian Natural Resources Law & Policy Conference

Canberra, Australia

March 27, 2000

Ladies and Gentlemen, friends and colleagues, distinguished participants in the First
Natural Resources Law Conference: you do me great honor with your invitation to speak
at this 1st Australasian Natural Resources Law & Policy Conference. It is also a special
pleasure to be with people who are thoughtful and passionate about one of the toughest
problems we face on our planet — finding a wise balance between contending natural
resource demands. My thought is to share some ideas with you about the use of
mediation — past, present, and future — for complex water conflicts and focus much more
specifically on the challenges of managing scientific and technical information.

My context, experience, and training are American and I hope you won’t hold that
against me as I offer some ruminations on what is happening there in the world of water
mediation. While I think much of the American experience is relevant to Australia,
please know that I am not here to thump the tub as a mediation missionary. Our
historical, legal, and political imperatives differ in important ways. Nor would I ever
suggest that mediation is a panacea or cure-all for the various problems all of us face as
we play out our designated roles as water lawyers, scientists, and policy advocates.
Nonetheless, I am cautiously optimistic that some of the current “third generation”
thinking about mediating fevered water controversies will be useful.

The place to start is with some actual water conflicts. Imagine that, even as we are
gathered here today, there are three other meetings going on in the rooms next door.

In the first one, the staff of a water agency is talking jaw-to-jaw with resort developers,
environmentalists, fishermen, and native peoples’ organizations. The resort has applied
for additional ground water to irrigate an 18-hole golf course which they argue is vital for
the local economy. Environmentalists assert that the additional withdrawal will create a
chloride interference with other nearby wells and ruin the aquifer. The native people at
the table believe that any increases in pumping will diminish their rights by reducing the
fresh water flowing into a near-shore brackish estuary. Fish, crabs, and edible seaweeds
have been customarily gathered by their people at the shoreline for centuries.

In the second room, the Environmental Protection Agency and the Army Corps of
Engineers are engaged in a prolonged discussion with state and community officials.
Local government is demanding millions of dollars to clean up PCBs spilled from three
discarded electrical capacitors. They believe that contaminants are migrating into the
local groundwater supply and are the suspected culprit behind a cancer cluster. Local
government wants more cleanups, compensation, and guarantees of future mitigation.
The agency responsible sees things different, of course. They say the spill was minimal,
well below established actionable standards, that the problem has been remediated, and
that there are other causations behind the cancers.

In the third room, farmers, developers, regulators, and environmentalists from the eastern
and western slopes of a dividing range (along with a lot of lawyers) are trying to resolve a
long-standing controversy that now seems destined for the courts. The dispute centers on
an out-of-watershed transfer of 25 million gallons per day (mgd) of fresh water from one
side of the mountain to the other. It invokes high emotions, thorny legal questions about
the “public interest,” and difficult planning problems over in-stream flow standards.
Once again, conservation and development interests are pitted against each other in a
vitriolic battle of newspaper articles, political campaigns, and legal actions.

All three of these cases are real situations that I have been involved in as a mediator,
facilitator, or hearings officer. I have no doubt that they have fairly precise counterparts
in Australia. I think, for example, of your disputes over deforestation and farm failures
caused by the salting up of the Murray River(1), your dry-land salinity problem, the
prospective commodification of tradable water rights, or the Snowy River rehabilitation
issue that we will be talking about later today. In America, all of these cases are tiny
motes of dust in the annual blizzard of 20-million lawsuits that blow through our state
and federal adjudication bodies. Like divorces, torts, traffic matters, and almost every
other kind of legal action, these water cases have plaintiffs and defendants, witnesses and
evidence, winners and losers. But unlike these other matters, water cases have longer,
wider and deeper public consequences.

Intrinsically, natural resource disputes, whether they are “upstream” issues that involve
policy formation or “downstream” matters that involve enforcement and (2)compliance,
pose powerful challenges to civil societies. In most cases, they focus on one or more of
four key questions:

* Who bears responsibility for something that allegedly went wrong
environmentally?

* How shall a current condition that is harmful be mitigated or remedied?

* Will a proposed project, policy, or rule prove potentially deleterious to human or
environmental health?

* How should an environmental resource with its attendant issues of risks, costs,
and benefits, be managed into the future?

But water resource disputes have other characteristics as well. They are often large in
scale, broad in impacts, and laden with values that are at odds with each other. They are
emotional to both “conscience” and “beneficiary” constituents. At issue in many cases
are matters of culture, economics, justice, health, risk, power, uncertainty, and
professional, bureaucratic, and electoral politics. Political careers are sometimes created
or destroyed because of water conflicts. And in some cases, the outcomes of specific
conflicts have inter-generational, international, and global impacts.

Mark Twain, the author of The Adventures of Huckleberry Finn said it best when he was
a young newspaper reporter wandering the American West at the turn of the century.
“Whiskey is for drinking and water is for fighting.” What he meant is that water comes to
us from the past; that, it is a common pool resource that, in the abstract at least, belongs
to us all; and that it somehow ought to be managed in ways that endure the resource into
the future for unborn generations. All of us at this meeting know these cases well. They
are the economic, environmental, and political fault lines that divide us as a civil society.
And for good reason, they are the exact spots where many of us turn uncivil.

In the U.S. — and I presume in Australia as well, although I will quickly defer to all of
you on this point — citizens and policymaker are hungry for ways to improve water
discussions and water decisions. We need wiser outcomes that are conceptually sound,
explicitly equitable, and that have practical staying power. Moreover, we need to reduce
the high transaction costs, both human and financial, that are associated with water
conflicts and we need to make decisions about water, streams, timber, pollution, fishing,
and energy development that our children’s children will not regret.

For the past 20 years I have been professionally organizing solution-seeking discussions
about just these kinds of matters and I have seen some astounding things take place at the
table, both good and bad. In general, I have learned three things.

The first is best summarized by Dave Berry, a humorist, who said, if you had to identify
the one single reason why the human race has not achieved, and never will achieve, its
full potential, that word would be “meetings.” In my line of work, people dread and hate
meetings because most of them are irritating, unproductive, and time-consuming
disproportionate to what usually comes out. One of the great challenges of this new
century is to improve the way we engage each other when we hold meetings about water
controversies.

Second, productive dispute resolution meetings over water issues usually take place
when we really do get the procedural and psychological aspects of a conflict organized
right. I’m not talking about “feel-good” sessions but rather the more pragmatic processes
of establishing reasonably tolerant working relationships. The good news is that much
has been learned about how to do this. The bad news is that we still need to meet.

Third, good process and good working relationships are necessary but, by themselves,
insufficient. We also must have very high quality information on the table. Ironically, it
is usually impossible to meet this third challenge unless the first two elements — good
process and good working relationships – have been established. The three ingredients of
substance, process, and working relationships form a triangle and all three sides are
critical and dependent on each other.

Some of you in this room have probably been involved in mediation proceedings and a
few of you may be mediators yourselves. Most of you, I am hazarding, have not. So let
me do a bit of definitional work. A mediator, unlike an arbitrator, has no power to force
anyone to do anything. They are in the dispute to turbo-charge communications and
negotiations. It’s as simple as that. When I get asked to help with a dispute I am there
only so long as all the parties tolerate my involvement. Anyone can stop the process at
any time. Parties understand that my job is to help them reach agreement, or at least not
let the failure to reach agreement happen for trivial reasons. If they decide to end the
process without agreement, the process ends.

To the popular eye, trained to the task by the movie and television industries, mediation
looks bold, exciting, and decisive. There is a big crisis. Tough and brilliant negotiators
have agreed to a “sit-down” to work out a knotty problem. Lives and fortunes are at stake
and they are struck. At an impasse. In the middle of all their complex bickering sits this
shrewd, Solomonic character, the mediator. At the end of the day, if you watch how it is
on television, we know he or she will pull some kind of rabbit out of the hat and create a
powerful conclusion in which reason prevails over enmity. And it will all get done in 60-minutes.

Reality, of course, is very different. In the day-to-day work I do on water, forestry,
pollution, construction, and commercial matters, a lot of what happens is not very
exciting. In fact, some of it is excruciatingly slow and dull, a bit like “punctuated
equilibrium”(3) or a cricket match or a baseball game. Things bump along at a slow pace.
They are going through the ritual of exchanging threats, arguing facts, and circuitously
“to-ing” and “fro-ing” about their righteous positions. Then, suddenly, there is some fast
and furious action. And that, of course, is precisely the time to be completely present and
acutely attentive to the opportunities and dangers that are the yin and yang of all
conflicts.

To my way of thinking, the mediation business is all about persuading people to sit still
for an exploration of the “needs-behind-the needs” and the upsides and downsides of all
potential solutions. The challenge is not “getting to yes” as Roger Fisher and William
Ury(4) argue, but getting to “maybe.” Once we have done that, then what usually ensues is
mutually focused thinking and productive talk. The issues are more crisply organized,
some of the drama and emotion have been ventilated, crucial missing information has
been gathered, and parties have more fully clarified their interests, intents, and options.
When this happens, it creates what my friend David Keller calls a “negotiatory alchemy.”

The “template” of generic moves that mediators work off of looks something like this:


  • Acquire the participation of all affected stakeholders and help
    and help organize the table so that all the right “voices” are
    present.
  • Establish protocol, forge working agreement on the issues to
    be resolved, and help ensure linkages to formal decision-making.
  • Organize productive and respectful exchanges of
    relevant information.


  • Push the parties to discern the underlying interests of
    all stakeholders and help them to discover, clarify, or
    create the greatest joint gains possible.
  • Assist the parties to make informed choices.

I emphasize the word “template” because there are many other steps and contingency
steps that are shaped by the circumstances of individual cases. Hidden behind these six
broad stages also lie many other artful “road maps” dealing with procedure, substance,
relationships, diagnostics, process design, evaluative and facilitative approaches to
intervention, convergent and divergent problem solving, and legal, scientific, economic,
and social impasse breaking.

Let me illustrate what I am talking about. Fifteen years ago a legislator asked me if I
would organize and mediate a stakeholder group to try and break a 10-year log jam over
the creation of an administrative water code for the state of Hawaii. Up to that point,
every water dispute went to court. Disagreements on the nature of the new law, the
jurisdiction and composition of the agency, and the function of the code as a whole was
contested, The stakeholder group that was assembled represented all of the players who
had been fighting out their legal and political positions in 10-minute sound bites at the
legislature, to no real effect. It was a bit like hand-to-hand combat through the streets of
Paris on a dark night.

The initial challenge was threefold. My colleagues and I first had to identify key
stakeholder groups and negotiate the conversion of those groups and voices into
meaningful representation. Second, we had to test the interest and commitment to go
forward and begin building some momentum for discussions. Third, we had to get
preliminary agreements on the scope of the issues to be discussed and the procedural
protocols and “table manners” that the parties would live by. The protocol document was
5-pages of single-spaced text.

Once started, this group developed a life of its own. As land owners, environmentalists,
small and large farmers, local governments, and native Hawaiian groups engaged with
each other, our job as mediators was to slow the jousting down, choreograph and
moderate the meetings, prevent the process from getting sidetracked or bogged down,
remind people privately of their real interests, and push people for progressively more
thoughtful positions. In the end, resolution came because of the information that was
traded, the brief respite of working trust that opponents enjoyed with traditional foes, and
the political will that developed where none had previously existed.

While nobody should view these kinds of mediated approaches as a substitute for the
traditional workings of government, the use of strategies based on “joint gains” problem
solving, mediation, facilitation, and consensus-building offer promise for many more
cases. In fact, with a bit of hindsight and some crystal ball gazing, I believe we are on the
brink of a third wave of environmental mediation experimentation which may have
important implications for the way water disputes are handled in the future. And for me,
“wave” is the right metaphor since I live on a small island 2,500 miles away from the
nearest land mass.

People who hang around the water a lot — ship captains, surfers, board sailors, fishermen
— know that waves (including tidal waves) are driven by multiple geophysical forces and
that they eventually come ashore in “sets.” What we think of as “a wave” is usually part
of a series of surges and swells, some of which merge together in breakers, others of
which crest by themselves. Waves of social change are similar. New ideas evolve from
small, sometimes isolated experiments and then radiate out. Some fade away. Others
gather depth, power, and form. The reverberations of successful sets become the
knowledge base for the next round of innovations.

The first wave of environmental mediation experiments began in the U.S. in the 1970s. It
started with the interest and experience of a few individual practitioners from other fields
and with the financial support of foundations excited about applying “alternative dispute
resolution” to complex natural resource and planning problems. Early results (the
Snoqualmie dam issue, the siting of Inter-State Highway 90, the National Coal Policy
Project, the Brayton Point power plant conversion, to name but a few) showed great
promise and spurred further interest in the core idea of using mediation and consensus
building for complex resource and planning disputes.

By the early 1980s, this kind of mediation work (as distinguished from commercial,
family, and community mediation) consisted of a small cadre of dedicated practitioners,
a few books distilling cases, the first codifications of best practices, a column in a
journal, a few conferences, and a growing list of questions.(5) Issues abounded, among
them, the appropriate role of mediation when there are power disparities, the ethical
obligations of mediators, how success should be gauged, and when “neutrality” in
environmental mediation is appropriate and inappropriate.

Most of this first wave of environmental mediation consisted of individual “supply side”
experiments that were, in essence, local responses to local frustrations with specific
issues. Previous innovations in managing environmental conflict — environmental
impact statements (EIS), public hearings, contested administrative case hearings — had
improved some forms of environmental decision making. Mediation seemed like a useful
supplement. In the face of a high perceived need (but low actual demand), early
mediation innovators sought to find appropriate cases in which the efficacy of mediation
could be demonstrated. They also sought to educate private and public sector leaders in
the hope that some would become influential users and cheerleaders and build “the field”
by doing research, studying the processes and results of mediation, and by developing
new practice theories.

In the mid-1980s, a second wave washed ashore in the U.S. It occurred when government
agencies entered the picture with their own programmatic interests. State, Federal, and
administrative law judges took interest in mediation and, in a variety of application areas,
began to incorporate ADR into pre-trial procedures. Agencies like the Environmental
Protection Agency, the Mineral Management Service, and the National Park Service
undertook extensive training programs and assigned personnel to coordinate or actually
perform ADR services. Federal agencies passed new laws like Public Law 101-552, the
Administrative Dispute Resolution Act (ADRA), and Public Law 101-648, the
Negotiated Rulemaking Act (NRA), both of which authorized and encouraged agencies
to use consensus building methods as a means of developing regulations. Even more self-consciously, the National Institute of Dispute Resolution began a systematic and highly
successful effort aimed at installing “Office of Mediation” capacities inside state
governments.(6)

The advent of second generation environmental mediation programs brought a
significant shift in the conversation about the public and private advantages of mediation.
Where the first “set” was focused on “supply-side” matters (the training of mediators, the
timing of interventions, fee structuring, maintaining foundation support), the second
wave was more preoccupied with the “demand-side”of the equation. Institutionalization
also brought with it a whole new set of prospective issues: public sector contracting
versus in-house mediators; case “gatekeeping”; roster management; and the building and
maintaining of trilateral support from legislators, courts, and agency administrators.

Retrospectively, it is interesting to note how some of the early practice and policy
distinctions that dominated discussions about environmental mediation have now
blurred. For example, one early school of thinking (articulated by Gerald Cormick and
others with labor-management backgrounds) held that mediation was something that
should be applied fairly late in the trajectory of an environmental dispute and only when
the parties have achieved “standing” and hit a clear impasse. Another view (most
cogently argued by Larry Susskind) suggested that mediation could and should be applied
as early and as broadly as possible and not just to “disputes,” but to a variety of emergent
planning and policy conflicts.

The two approaches — late versus early intervention and “narrow” vs. “broad” problem
formulation(7) – seemed to emphasize different styles of practice. In some contexts, the
distinction looked like competitive bargaining on the one hand, and more cooperative but
slower “consensus-building” on the other. Practitioners of these approaches were
sometimes distinguished as “hard core” or “soft core” mediators. The imagery of the
hard core mediator was one of “arm twisting” and “deal-making.” The imagery of the
other was “touchy-feelie.” Both approaches were often mischaracterized and, as it turned
out, the distinction was a false dichotomy. Most good natural resource mediators were
versatile in several approaches and could apply them to different kinds of challenges.

Today, though practices and procedures vary widely, a common set of conceptions links
both of these early schools of thought along with the “First” and “Second” wave efforts
described above. Indeed, whether the practice is called “mediation,” “facilitation,” or
“consensus-building,” the entire field is now generally grounded in a common
philosophy that emphasizes good stakeholder representation, strong management of
process, encouragement of interest-based bargaining, and the intelligent participation of
government agencies, advocates, and business interests. The role of government is also
more accepted as both an “actor” at the table and a third party broker of processes and
outcomes. These principles and tenets are spelled out in a variety of publications that,
taken together, can be said to comprise the accrued wisdom of the field.(8)

The next wave holds even greater promise. In addition to applying lessons learned from
the past, third generation mediation programs will apply greater rigor to the problem
solving process. They will offer a variety of discrete, well parsed, and well-defined
services (conflict analysis, process design, system design, fact-finding, policy dialogues,
assisted negotiations, short and long term information exchanges, etc.) and they will be
positioned to work on “chains” of problems that are fundamentally similar but occurring
in different places, i.e., problems over ground and surface water, wetlands management,
pollution, property rights, and so on.

The real key to the next generation of programs and projects, however, will be a more
avowedly self conscious philosophy of conflict resolution that is built on “mutual gains”
problem solving, stronger analysis infused into the mediation process, and the ingraining
of better information management in the face of contested science and scientific
uncertainty. I believe the real “touchstone” for the future lies in a philosophy which seeks
to enjoin science (which is all about truth-seeking) with politics (which is all about the
constructive uses of power) in the service of better policymaking (which is all about the
public “rules of the road”). Kai Lee calls this approach “civic science” and defines it as
“irreducibly public in the way responsibilities are exercised, intrinsically technical, and
open to learning from errors and profiting from success.”(9) The outcomes of a true civic
science should be environmental decisions that are at least as good, if not better than,
what would happen otherwise in terms of their (1) conceptual soundness; (2) equity; (3)
technical efficiency; and (4) practicability.(10)

Excellence in conflict resolution for water cases will derive from the way we meet the
challenge of achieving powerful “substantive” solutions to tough problems. Good process
and improved relationships — the traditional measures of good mediation in other arenas,
are necessary but insufficient for greater use of this method in water cases. Conventional
mediation models are heavily weighted on communication skills (i.e., active listening,
reframing, self-disclosing) and negotiation strategies (i.e., in-team organizing, shadow
bargaining, single-text negotiating).(11) Indeed, standard mediation theology holds that the
parties retain control over the substance of the dispute while mediators exert strong
management over process and interpersonal working relations. Not surprisingly,
improved “relationships” and better “process” are often reported as the major
achievements and outcomes of many consensus processes. In water cases, we must do
better. We must be able to show outcomes that are Pareto-optimal, better than what can
be achieved in litigation, better than expectations, or better than some other party-established baseline. Please note here that I am not using the phrase “win-win” which I
think is a misleading metaphor and which tends to obscure more than it reveals and raise
up unreasonable expectations.

Finding the Pareto-efficient frontier (the “sweet spot”) is the great quest in any dispute
negotiation but it is a special challenge in water cases. Essentially, economist Vilfredo
Pareto suggested that this kind of optimization occurs when no more joint gains are
possible through skillful bargaining.(12) In other words, one side’s bundle of gives and
takes can only be enhanced at the expense of decreasing the other’s. The key to achieving
the highest possible theoretical joint gains, we have learned, involves considering all of
the issues and outcomes together, discussing them serially, but holding off on making
offers and counteroffers until all possibilities, solutions, and options have been discussed.

The meta-goal for water resource conflict resolution work is to achieve resolutions that
can be judged more “distinguished” or “elegant” because all stakeholders have achieved
a high level of benefit for the interests they represent, surpassed their BATNAs,(13) and not
left potential additional joint gains on the table. When parties do not bargain efficiently,
when they do not disclose critical information about the way issues are valued, or when
they fail to propose potential outcomes across all issues, the best outcomes remain vague
and elusive. The phenomenon of inefficient bargaining and gains left on the table
permeates multi-issue water negotiations. That is why a good mediator changes the
chemistry of what is going on when parties sit down to try and reach an amicable
agreement.

I believe the next wave of resource mediation will also do a much better job of
incorporating “good science.” At core, disputes about the ecology and economics of
human activities in natural systems almost always involve competing theories and
methodologies for gauging impacts. The agreements, settlements, resolutions, and
understandings that emerge from mediated conflict resolution processes must therefore
address competing epistomologies if the outcomes are to be judged positively. Policy and
site-specific water disputes usually take place in the partial vacuum of an “unknown.”
The impacts of many proposed actions (using certain pesticides, for example, or
withdrawing too much water, or engineering certain structures on the banks of rivers) are
often unclear and may not ever be fully knowable. It is imperative, therefore, that the
highest quality information and accurate understandings of error and uncertainty be
intentionally made a part of the mediation.

Chris Moore has written extensively about how often natural resource conflicts are
caused by a lack of information, misinformation, different methodologies, misunderstood
notions of what is relevant, alternating or contested interpretations of data, and dissimilar
assessment procedures. In Moore’s view, joint-gains processes demand a well-orchestrated effort aimed at reaching agreement on what data are important, agreeing on
the process by which data is to be collected, developing common criteria for data
assessment, and reaching agreements on how third-party experts might be helpful in
interpreting data.(14)

Larry Susskind, puts it even more directly. “Most dispute resolution processes,” he and
Jeff Cruikshank write, “involve forecasts of some sort. It may take months, or even years,
before the wisdom of such forecasts and the accuracy of the assumptions upon which
they were based can be ascertained.”(15) Since waiting years or even decades to pass
judgement on the efficacy of a particular substantive agreement is usually unacceptable,
Susskind and Cruikshank suggest the use of “prospective hindsight,” something that at
first blush seems oxymoronic. A wise settlement, they argue, will move substantive
problem-solving beyond the usual model of warring experts and “adversarial science.”
In doing so, a more cooperative approach will create specific interactions among the
stakeholders that ultimately incorporate the best and most relevant methodologies.
Susskind calls this the “wisdom” criteria for gauging outcomes. Have the parties focused
on the salient issues and jointly utilized scientific and technical evidence regardless of
which faction of stakeholders proposed it? If the answer is “yes,” then the agreement is
“wiser” than one that has failed to do this.

Is it actually possible to find a more “impartial” approach to science-intensive problems
such as we face in water controversies? Over the last several decades the idea of “neutral
science” has been steadily debunked and more or less abandoned. However, “good
science” has not. “Science is not a collection of facts,” says Timothy Ferris, “any more
than opera is a collection of notes. It’s a process, a way of thinking, a method based on a
single insight — that the degree to which an idea seems true has nothing to do with
whether it is true, and that the way to distinguish factual ideas from false ones is to test
them by experiment.” (16)

Good science does not mean “perfect science.” Rather, it exists on a continuum that
ranges from highly controlled and repeatable experiments (stronger science), to statistical
modeling (slightly weaker science), to quasi-experimental approaches that use selective
sources of information (weaker still), to crude data amalgamation (even weaker), to
aggregated and unaided subjective judgements (weaker yet), to the intuitions of a select
or

small number of people (very weak). Stronger science tends to be more rigorous but
there is also a tradeoff. Generally speaking, the more rigorous the mode of science, the
more costly and time-consuming the inquiry and the less effective it may actually prove
in dealing with complex, multi-variate social and cultural problems that require making a
combined set of decisions that are at once economic, environmental, legal, and political
in nature.

The challenge of doing a better job of the science in complex water cases is a “third
wave”goal that is being taken very seriously. This month a source-document developed
by a working group of environmental mediators will be jointly published by the United
States Institute for Environmental Conflict Resolution, the Western Justice Foundation,
and RESOLVE, Inc.(17) This document lists nearly sixty strategies and techniques for
managing some thirty different science-related problems that crop up routinely in
environmental cases. The document offers up the distilled experience of more than a
hundred scientists, lawyers, and mediators who have all been deeply involved in the
negotiated resolution of natural resource conflicts. We believe it will help further the use
of joint gains processes and give greater confidence to those who are the participants and
recipients of these procedures, the “mediated upon.” It is, of course, just a start.

In bringing this work forward, we do not assume that technical and scientific information
is the “be-all” and “end-all” of resource management conflicts. Parties bring to the table
many different kinds of knowledge: “traditional” knowledge, “cultural” knowledge,
“local” knowledge, and “remembered” knowledge. All have a place in the mix along
with high quality legal, economic, and political knowledge. Nonetheless, we think
advances in the life and social sciences, in computing power and data management, and
in our ability to understand chaos, order, and systems will give those who follow much
greater advantages as they struggle to make wise water decisions.

And the ultimate goal of all this mediating and facilitating? In the final analysis, it has
something to do with that much overused concept “sustainability.” Part of why I feel
compelled to find new approaches to water conflicts is because the stakes keep rising and
our conventional ways of doing the business of conflict resolution seem less and less
germane to what is really going on.

We live in a time of unprecedented growth but the prosperity which we enjoy, and which
the world aspires to, has been bought on credit. The bill is coming due. David Quammen,
a brilliant science writer, says the collective impact of 6-billion people (one-third of
whom live in unequivocal poverty) is, not figuratively, but literally destroying the earth.
Interestingly, in his mind, the greatest threats do not come from polluted air, acid rain, or
the unraveling of the ozone layer over the Antarctic. The real threat is biological
impoverishment: the reduction of the planet’s gene pool.(18)

Our current species “die off,” says Quammen, the one that has been going for the past
300 years, is now greater than any of the five previous extinctions, the last of which
killed off 76% of the planet’s mammals, amphibians, and dinosaurs in the Cretaceous.
Today, we are losing the things that formed the commonweal and common ground
beneath our feet for so long. It is not, of course, the end of the world nor the end of
nature, but we also know that the extinctions are accelerating. Coral and forest
destruction, habitat fragmentation, invasive species, and the ripple effects of key animals
and plants disappearing from the food chain all have much to do with water. If there
really is such a thing as a “web of life,” then water is the connective gossamer that holds
the filaments together and moves nutrients up, down, and across the various plant and
animal regimes.

I tell you all this, not as an alarmist or as an environmental crusader, but as a willing and
eager participant in the everyday water dramas that I see people of integrity and good
confronting as they sit down at the table to solve problems. I worry for all of them. I fret
about the water in the aquifers and the people who manage it. I worry about the fish and
algae in our rivers and the people who lose their livelihoods and or entire way of life
when a factory shuts down or a stream is unswimmable. The way we mediators have
chosen to participate is the middle path, the teasing out of more elegant solutions and the
forging of new balances.

Elusive as it may be, then, we mediators are in the business of trying to help create,
through pragmatic actions, a sustainable enterprise in which economics is intimately
connected to environment and grounded in a just and robust society. Finding the
connective tissue between these three — ecology, economics, and community — is the
great business of our time. Kai Lee calls sustainability the “map” on which the
connections between science and politics are played out. “Adaptive management,” he
says, is the compass which keeps us from aimless wandering. And conflict resolution is
the gyroscope which stabilizes us in the crosscurrents.

In the months and years ahead, holding steady to this purpose — steering by this star –
will serve us well as we ride the next wave of mutual gains problem solving. But there
are other benefits as well. Law professor Charles Wilkinson puts it this way:

“We will always have disputes over land, water, wildlife, minerals, and
power. Such raspings are inevitable and ultimately healthy in a colorful,
dynamic, and individualistic society. Nevertheless, the dissenting parties
often leave angry, determined to undercut the temporary solution bred of
combativeness. Perhaps worse, the process tears at our sense of
community; it leaves us more a loose collection of fractious subgroups
than a coherent society with common hopes and dreams…. Consensus
dispute resolution involving all affected basin parties has a core value,
one separate from the worth of ending a confrontation for the time being.
An agreement can glue former adversaries together in a continuing
process jointly conceived. Consensus builds trusting communities.
Agreements heal and strengthen places.”
(19)

1. “The Salt That Won’t Run to the Sea,” The Economist, p. 38, February 5, 2000.

2. “Upstream” and “Downstream” are concepts developed by Ms. Christine Carlson, Esq., Executive
Director of the Policy Consensus Institute in Santa Fe, New Mexico.

3. See Stephen Jay Gould’s evolutionary theory of “punctuated equilibrium” in Dinosaur in a
Haystack:- Reflections in Natural History
, Harmony Books, 1996.

4. Roger Fisher and William Ury, Getting To Yes, 2nd Edition, Penguin, 1991.

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

6. See, for example, “Statewide Offices of Mediation” by William Drake in Negotiation Journal,
359, (1989), “State Offices of Mediation: Thoughts on the Evolution of a National Network”, in Kentucky
Law Journal
by Peter Adler, Vol. 81, No. 4, 1992-3, and “NIDR’s State Office of Mediation Experiment”
by Lawrence Susskind in Negotiation Journal, 323, (1986).

7. For an excellent discussion on how issue definition affects intervention strategy, see “Mediator
Orientations, Strategies and Techniques” by Leonard L. Riskin in Alternatives, Vol. 12, No. 9, September,
1994, pp. 111- 114.

8. For a good example of “First Generation” wisdom, see for example Managing Public Conflict by
John Kennedy and Susan Carpenter, San Francisco: Jossey-Bass, 1988. For a good example of “Second
Generation” wisdom, see Best Practices for Government Agencies, a report of the SPIDR
Environment/Public Disputes Sector Critical Issues Committee, Society of Professionals in Dispute
Resolution, January, 1997.

9. Compass and Gyroscope, Kai N. Lee, Washington, D.C.: Island Press, 1993, p. 161.

10. Politicians, Bureaucrats, and the Consultant, Garry D. Brewer, New York: Basic Books, 1973.

11. For a representative example of “process” and “relationship” oriented mediation models, see
When Push Comes to Shove
by Karl Slaikeu (San Francisco: Jossey-Bass, 1996) or Conflict and Resolution
by Barbara Nagle Lechman (New York: Aspen Publishers, 1997). For a representative example of “process”
and “relationship” oriented negotiation models, see Fundamentals of Negotiation: A Guide for
Environmental Professionals
by Jeffrey G. Miller and Thomas R. Colosi (Washington: ELI, 1989).

12. The Art and Science of Negotiation, Howard Raiffa, Cambridge: Harvard University Press, 1982,
p. 139.

13. BATNA is a term of art and an acronym for “best alternative to a negotiated agreement”. It
derives from the work of Roger Fisher, William Ury, and others at the Harvard Program on Negotiation.

14. The Mediation Process, Christopher Moore, San Francisco: Jossey-Bass, p.27.

15. Breaking the Impasse, Larry Susskind & Jeffrey Cruikshank, New York: Basic Books, 1987, p.
28.

16. “Not Rocket Science” by Timothy Ferris, The New Yorker, July 20, 1998, p. 5.

17. “Managing Scientific and Technical Information in Environmental Cases: Principles and Practices
for Mediators,” (forthcoming in printed and website versions) by Peter S. Adler, Robert Barrett, Martha C.
Bean, Juliana E. Birkhoff, Connie P. Ozawa, and Emily Rudin. U.S. Institute for Environmental Conflict
Resolution, the Western Justice Foundation, and Resolve, Inc, April 2000.

18. David Quammen, “Planet of Weeds,” in Harper’s Magazine, October, 1998.

19. “Law and the American West: The Search for An Ethic of Place” by Charles F. Wilkinson in
University of Colorado Law Review, Vol. 59, No. 3, 1988, pp. 409-410.

                        author

Peter Adler

Peter Adler directs ACCORD3.0, a group of independent consultants specializing in foresight, fact-finding and conseneus building. He is the former President and CEO of The Keystone Center and has held executive positions with the Hawaii Supreme Court, the Hawaii Justice Foundation, and Neighborhood Justice Center of Honolulu. Peter can also… MORE >

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