Types of ECR Processes

Environmental Conflict Resolution (ECR) is defined as third-party assisted conflict resolution and collaborative problem solving in the context of environmental, public lands, or natural resources issues or conflicts, including matters related to energy, transportation, and land use. The term "ECR" encompasses a range of assisted negotiation processes and applications. These processes directly engage affected interests and agency decision makers in conflict resolution and collaborative problem solving. Multi-issue, multi-party environmental disputes or controversies often take place in high conflict and low trust settings, where the assistance of impartial facilitators or mediators can be instrumental to reaching agreement and resolution. Such disputes range broadly from administrative adjudicatory disputes, to civil judicial disputes, policy/rule disputes, intra- and interagency disputes, as well as disputes with non-federal persons/entities. ECR processes can be applied during a policy development or planning process, or in the context of rulemaking, administrative decision making, enforcement, or litigation and can include conflicts between federal, state, local, tribal, public interest organizations, citizens groups and business and industry where a federal agency has ultimate responsibility for decision-making.

While ECR refers specifically to collaborative processes aided by third-party neutrals, there is a broad array of partnerships, cooperative arrangements, and unassisted negotiations that federal agencies enter into with non-federal entities to manage and implement agency programs and activities.

Environmental Conflict Resolution (ECR) Processes

For convenience and consistent with how the U.S. Institute carries out its charge, we use the term environmental conflict resolution (ECR) to encompass an array of interest-based, agreement seeking techniques and processes that serve to improve environmental decision making by directly engaging the parties at interest in a creative problem solving process. Among these techniques and processes are:

Case Evaluation/Neutral Evaluation:: This is a form of conflict resolution in which the disputing parties meet informally with an experienced, neutral evaluator. Each party is afforded the opportunity to meet with the evaluator who assesses the strengths and weaknesses of each side's case and explores prospects for settlement. If the parties are unable to reach agreement during the evaluation session, the neutral evaluator may offer an impartial non-binding opinion as to the settlement value of the case and/or a non-binding prediction of the likely outcome if the case were to go to trial. If both parties agree, the evaluator's opinion may become binding.
Collaborative Monitoring:: Collaborative monitoring seeks to engage interested and affected stakeholders as well as public agencies and science and technical experts in a more direct manner. Participants in collaborative monitoring may play a variety of roles: determining target outcomes, defining criteria and indicators to monitor those outcomes, determining the appropriate system for monitoring, participating in the data gathering and analysis, and/or interpreting the data over time. Collaborative monitoring is being implemented in a variety of program contexts, and it has been conducted within many different structural settings.
Conflict Assessment:: Conflict assessment helps to identify the issues in controversy in a given situation, the affected interests, and the appropriate form(s) of conflict resolution. The assessment process typically involves conferring with potentially interested persons regarding a situation involving conflict in order to: assess the causes of the conflict; identify the entities and individuals who would be substantively affected by the conflict's outcome; assess those persons' interests and identify a preliminary set of issues that they believe relevant; evaluate the feasibility of using a consensus-building or other collaborative process to address these issues; educate interested parties on consensus and collaborative processes so as to help them think through whether they would wish to participate; and design the structure and membership of a negotiating committee or other collaborative process (if any) to address the conflict.
Conflict Resolution:: Often termed dispute resolution, conflict resolution includes all possible processes for resolving a conflict or dispute in a peaceful way. This term is broader than alternative dispute resolution (ADR) in that conflict resolution includes not only alternative dispute resolution techniques such as mediation and arbitration, but also judicial processes, negotiating consensus building, diplomacy, analytical problem solving, and peacemaking. The consensual nature of most conflict resolution methods (other than litigation) requires that all parties participate jointly in the process of selecting which process best fits their dispute.
Consensus Building:: Consensus building describes a number of collaborative decision-making techniques in which a facilitator or mediator is used to assist diverse or competing interest groups to reach agreement on policy matters, environmental conflicts, or other issues in controversy affecting a large number of people. Consensus building processes are typically used to foster dialogue, clarify areas of agreement and disagreement, improve the information on which a decision may be based, and resolve controversial issues in ways that all interests find acceptable. Consensus building typically involves structured (yet relatively informal), face-to-face interaction among representatives of stakeholder groups with a goal of gaining early participation from affected interests with differing viewpoints, producing sound policies with a wide range of support, and reducing the likelihood of subsequent disagreements or legal challenges.
Dispute Systems Design: Dispute systems design is a process for assisting an organization to develop a structure for handling of a series of similar recurring or anticipated disputes (e.g., environmental enforcement cases or EEO complaints within a federal agency) more effectively. A dispute systems designer typically proceeds by interviewing representatives of interested or affected groups (including people in the agency) about their perceptions and interests; analyzing the organization's existing system for handling these conflicts; designing and implementing conflict management or dispute resolution procedures that encourage early, informal resolution of conflicts; and perhaps evaluating the impact of these new dispute resolution procedures to assure their effectiveness.
Facilitation: Facilitation is a collaborative process in which a neutral seeks to assist a group of individuals or other parties to discuss constructively a number of complex, potentially controversial issues. The facilitator typically works with participants before and during these discussions to assure that appropriate persons are at the table, help the parties set ground rules and agendas, enforce both, assist parties to communicate effectively, and help the participants keep on track in working toward their goals. While facilitation bears many similarities to mediation, the neutral in a facilitation process (the "facilitator") usually plays a less active role than a mediator and, unlike a mediator, often does not see "resolution" as a goal of his or her work. Facilitation may be used in any number of situations where parties of diverse interests or experience are in discussion, ranging from scientific seminars to management meetings to public forums.
Joint Fact-Finding:: Joint fact-finding is a process by which interested parties commit to build a mutual understanding of disputed scientific or technical information. Interested parties can select their own experts who presumably reflect differing interpretations of available information. Alternatively, they can also jointly decide on an unassociated third-party expert or a panel of experts. A facilitator/mediator works to clarify and define areas of agreement, disagreement, and uncertainty. The facilitator/mediator can coach the experts to translate technical information into a form that is understandable to all interested parties. The goal is to avoid adversarial or partisan science where competing experts magnify small differences, rather than focusing on points of agreement and/or creating a strategy to provide for a joint conclusion.
Mediation:: Mediation is facilitated negotiation in which a skilled, impartial third party seeks to enhance negotiations between parties to a conflict or their representatives by improving communication, identifying interests, and exploring possibilities for a mutually agreeable resolution. The disputants remain responsible for negotiating a settlement, and the mediator lacks power to impose any solution; the mediator's role is to assist the process in ways acceptable to the parties. Typically this involves supervising the bargaining, helping the disputants to find areas of common ground and to understand their alternatives, offering possible solutions, and helping parties draft a final settlement agreement. While mediation typically occurs in the context of a specific dispute involving a limited number of parties, mediative procedures are also used to develop broad policies or regulatory mandates and may involve dozens of participants who represent a variety of interests. Mediation most often is a voluntary process, but in some jurisdictions may be mandated by court order or statute.

A variety of mediation styles have been identified; for instance, a mediator's style may be described as "evaluative" or "facilitative." Most "evaluative" mediators emphasize helping the parties understand the strengths and weaknesses of their cases, and provide guidance as to the likely outcome in court and appropriate grounds for settling. "Facilitative" mediators tend to be less likely to provide direct advice, propose solutions, or predict outcomes; they usually seek to establish a framework that makes it safe for parties to communicate more effectively as to their interests, options, and realistic alternatives.
Negotiated Rulemaking: Negotiated rulemaking (also called "regulatory negotiation" or "reg-neg") is a multi-party consensus process in which a balanced negotiating committee seeks to reach agreement on the substance of a proposed agency rule, policy, or standard. The negotiating committee is composed of representatives of those interests that will be affected by, or have an interest in, the rule, including the rulemaking agency itself. Affected interests that are represented in the negotiations are expected to abide by any resulting agreement and implement its terms. This agreement-seeking process usually occurs only after a thorough conflict assessment has been conducted, and is generally undertaken with the assistance of a skilled, neutral mediator or facilitator.
Policy Dialogue: Often used to address complex environmental conflicts or public policy disputes constructively, policy dialogues are processes that bring together representatives of groups with divergent views or interests to tap the collective views of participants in the process. The goals include opening up discussion, improving communication and mutual understanding, exploring the issues in controversy to see if participants' different viewpoints can be distilled into general recommendations, and trying to reach agreement on a proposed policy standard or guidelines to be recommended by government.

Unlike processes that explicitly seek to obtain consensus (e.g., negotiated rulemaking, mediation), policy dialogues usually do not seek to achieve a full, specific agreement that would bind all participating interests. Rather, participants in a policy dialogue may seek to assess the potential for developing a full consensus resolution at some later time or may put forward general, non-binding recommendations or broad policy preferences for an agency (or other governmental entity) to consider in its subsequent decision making.
Process Design: In process design, a neutral assists an organization to develop (or recommends to it) a process for addressing a particular controversy or a series of disputes. Typically a process designer interviews representatives of interested or affected groups (including people in the agency) about their perceptions, their interests regarding the conflict in question, and their suggestions as to useful ways to handle it. The designer will then report to the agency with recommendations or a plan for handling the dispute(s).