Environmental Conflict Management. An Environmental Policy I

402/96 - 19 e PVI

Division 402 Environmental protection, Conservation of Natural Resources, Dissemination of Appropriate Technologies (GATE)

Environmental Conflict Management An environmental policy instrument in developing countries

Division 402 Environmental Protection, Conservation of Natural Resources, Dissemination of Appropriate Technologies (GATE) 402/96 - 19 e PVI

Environmental Conflict Management

An environmental policy instrument in developing countries

Eschborn 1996

Publisher: Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH PO Box 5180, 65726 Eschborn Division 402, Environmental Protection, Conservation of Natural Resources, Dissemination of Appropriate Technologies (GATE) Pilot Project Institutional Development in Environment Wachsbleiche 1, 53111 Bonn Tel.: (+49) 0228 98533-0 / Fax: (+49) 0228 98570-18 E-Mail: [email protected] Author:

W. Hamacher

Responsible:

W. Hamacher, S. Paulus, B. Winkler

Layout:

I. Borucki

2TGHCEG Since the beginning of the 1980s, as part of development cooperation (DC), the Federal Republic of Germany has stepped up support to partner organizations in developing countries for solving environmental problems. During this time it has become clearer that because of these problems’ complexity, their multi-sectoral character and the number of actors involved - all with differing interests - the institutional framework would have to be more carefully examined. Thus for several years GTZ has increased capacity-building efforts in the environmental sector, both aimed at developing institutional structures and an effective range of instruments for environmental policy. Not only at the United Nations Conference for Environment and Development (UNCED 1992) but also within the framework of the OECD Development Assistance Committee, the significance of environmental policy was emphasized; and support was called for to assist developing countries in consolidating institutional structures and local capacities for solving environmental problems. To this may be added the development and application of alternative methods for resolving environmental disputes. The present contribution offers an overview of various conflict management (CM) procedures and their application within the environmental sector. These procedures have the common aim of attempting to solve environmental conflicts before they turn into legal disputes. They produce alternative solutions acceptable to all parties to the conflict sometimes by means of a neutral third party. The positive experience of industrialized countries lends credence to the assumption that these "Alternative Dispute Resolution" (ADR) techniques may also be relevant in developing countries. In the process, novel legal and administrative regulations are suggested, which when applied and possibly institutionalized, may serve to supplement the existing range of instruments. This contribution is offered primarily to professionals who are planning or implementing environmentally-related projects in DC; it is intended to stimulate the greater integration of CM instruments into such projects as part of the overall environmental-policy range of instruments. We also hope to interest professionals and decision-makers from developing countries who would like an overview of cooperation possibilities in this field and would like to familiarize themselves with the current state of discussion in German DC institutions. The focus of this contribution is on technical cooperation (TC). The considerations presented here constitute one of the GTZ key activity areas in the scope of the supra-regional pilot project "Institutional Development in Environment" which is being implemented by the GTZ under a commission from the German Federal Government with the aim of increasing the integration of participative and processoriented elements into the promotion of environmental institutions. The present contribution is based on the results of an international workshop which GTZ held jointly with the World Bank and the Swiss Academy of the Environment in November 1995, in addition to training courses in developing countries and related literature. We would like to take this opportunity to thank all participants most warmly. Bonn/Eschborn, February 1996 Dr. Hans Peter Schipulle Bundesministerium für Wirtschaftliche Zusammenarbeit und Entwicklung (BMZ) (German Federal Ministry for Economic Cooperation and Development) Division 224 (Environment, Resource Protection and Forestry)

I

Dr. Wolfgang Morbach Deutsche Gesellschaft für Technische Zusammenarbeit, (GTZ) GmbH Division 402 (Environmental Protection, Conservation of Natural Resources, Dissemination of Appropriate Technologies)

%QPVGPVU Preface Table of contents Diagrams and graphics Abbreviations Summary

I II III IV V

1.

The significance of alternative conflict management for development cooperation

1

2.

4

2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9

Conflict management as an integral part of effective environmental policy: experience with conflict management procedures Current situation in the USA Varieties of conflict sources Advantages of conflict management procedures... ...and the conditions they require Conflict management procedures Building blocks and the course of a conflict management procedure Evaluation of conflict management procedures by participants The content of negotiated settlements Qualifications of a mediator

4 6 7 8 9 10 16 19 20

3. 3.1 3.2 3.3 3.4

Environmental conflict management and development cooperation The context Institutional framework Intercultural exchange Operational planning

23 23 25 26 28

4. 4.1 4.2 4.3 4.4

Approaches for development cooperation Principles of cooperation Partners in cooperation Phases and key activity areas Cooperation among development cooperation institutions

30 30 31 32 36

5.

Concluding remarks

38

Selected literature

39

Annexes 1. An example of procedural rules of order 2. An example of correcting informational imbalances 3. Conflict management procedures 4. Formulation of issues in conflict analysis 5. Varieties of advisory interventions

1 3 4 9 10

Division 402 publications to date

11

II

&KCITCOUCPFITCRJKEU

Box 1

Definition of conflict management

Box 2

Varieties of conflict sources

Box 3

The continuum of conflict management

Box 4

Procedural steps in mediation

Box 5

Conducting interest-based negotiations

Box 6

Negotiation package

Box 7

Legal obligations of participants to the negotiated settlement

Box 8

What does "power" mean?

Box 9

Mediator typology

Box 10

Conflict management in Indonesia

Box 11

Socio-cultural framework conditions in Indonesia

Box 12

Communication policy in Benin

Box 13

Institutionalization components

Box 14

Preparatory phase

Box 15

Planning phase

Box 16

Implementation phase

III

#DDTGXKCVKQPU

ADR

Alternative dispute resolution

BMZ

Bundesministerium für Wirtschaftliche Zusammenarbeit und Entwicklung (German Federal Ministry for Economic Cooperation and Development)

CIM

Centrum für internationale Migration und Entwicklung

CM

Conflict management

DAAD

Deutscher Akademischer Austauschdienst (German Academic Exchange Service)

DC

development cooperation

DSE

Deutsche Stiftung für internationale Entwicklung (German Foundation for International Development)

FC

financial cooperation

GTZ

Deutsche Gesellschaft für Technische Zusammenarbeit, GmbH

IDE

Institutional development in environment

NGO

non-governmental organization

OECD

Organization for Economic Cooperation and Development

TC

technical cooperation

UNCED

United Nations Conference for Environment and Development

WIP

waste incineration plant

IV

5WOOCT[ In industrialized countries, parts of the population have come increasingly to resist environmentally-relevant activities such as the construction of waste disposal plants. This resistance brings on a sort of decision-making crisis in many environmental-policy sectors today. The source of such disputes lies in part in the actual substance of the decisions, but it also lies in the decision-making process, which often lacks transparency and consensus. Without new methods of citizen-participation, alternative dispute resolution (ADR) procedures, and other participatory negotiation methods which permit innovative development approaches and nurture social acceptance, the transition to sustainability that is so globally called for will hardly be possible. Since the start of the 1970s in the USA - and later in other countries as well - "alternative" conflict-resolution procedures were developed and applied with considerable success to supplement traditional decision-making procedures for the resolution of environmentalpolicy conflicts. The various procedures aim to bring together all interested but opposing parties to solve problems jointly: to "negotiate" a solution acceptable to all. In this way it has been possible to produce options that were in both nature and extent beyond the sphere of administrative or judicial decision-making. The hallmark of these procedures is lack of formality, which allows for optimal adjustment to the needs of the opposing parties: First, there are procedures for cooperative decision-making which take place without a mediator (third party not involved directly in the dispute). In the case of procedures taking place with third-party support, a third party intervenes to assist the negotiating partners. This assistance may be psychological, procedural, or substantive in nature: Thus, team-building contributes to the formation of relationships. Or a third party may assist with design and implementation of a (not particularly polarized) negotiating process, as in facilitation. This person may even be a party to the conflict, but s/he must exercise impartiality in regard to the issue being negotiated. Mediation - surely the best-known procedure - is basically a kind of procedural support. It is used when conflicts are highly polarized and negotiations have reached a stalemate or have not even begun. Substantive support may be provided through Technical Advisory Boards. Decision-by-a-third-party procedures are also strongly differentiated. What they share is that the "negotiation" of the adversaries about agreement is no longer central, but rather the unequivocal recommendation or the binding or non-binding (arbitrated) decision. Occasionally, arbitration and mediation may be combined. Most of the parties involved experience such procedures as positive. Reservations often crop up when people (rightly) perceive the procedures as a discredited instrument for procuring acceptance. The dissolving of mistrust between state and society as well as the executive’s openness to any outcome are therefore important building blocks for success. Although most experience with alternative conflict management procedures in the environmental sector has been gathered in industrialized countries, there is much to be said for applying it in developing countries: institutional weakness, inadequate environmental policy, a lack of regulatory legislative instruments, deficiencies in enforcement, unclear lines of responsibility and inefficiency on the part of administrations and courts all allow negotiated settlements to appear as a true alternative, particularly, too, because consensus-orientation is a tradition in many developing countries and is generally applied in the resolution of conflicts in any case. Experience so far with alternative methods of conflict management in various developing countries has also 9

shown that there is considerable creative potential for overcoming environmental-policy conflicts. Development cooperation projects often take place in the charged atmosphere of environmental-policy conflict. Such projects usually depend on the active participation of a large number of actors, but at the same time they must incorporate the divergent interests of these same actors. Alternative conflict management procedures are of increasing relevance to development cooperation. Determining factors in regard to points of intervention for cooperation in this field are the questions of the requisite framework conditions and the acceptance and viability of methods developed and primarily applied in Western cultures. In this regard, the simple transfer of conflict management theory to practice in developing countries is likely to be counterproductive: mediator-supported negotiations such as mediation procedures do indeed take place there, but are rarely uniform in regard to procedures and mediator role. The decisive question is not, therefore, how procedures and methodologies may be directly transferred from one country to another, but rather: "What works in a given situation? To what extent may traditional dispute resolution procedures in developing countries be applied, further developed, and interfaced with ’modern’ procedures in regard to the environmental sector?" For development cooperation the challenge is to initiate and see the process through, using traditional, locally-tested methods. At first, pilot efforts may be supported, but in the medium term, institutionalization is the aim. For this, the necessary process-oriented support requires flexible and iterative planning. And every imaginable activity involved in such a process presupposes, of course, a comprehensive understanding of the "conflict culture" of the respective country. An exact analysis of the participant structure and the organizational landscape is necessary as well, even though the political sensitivity of the topic and its cultural implications prescribe a solely catalyst role for development cooperation. In the long term the application of conflict management procedures goes beyond the immediate resolution of disputes to a changed participant culture and to increased "ownership." Experience so far also shows that such processes develop considerable momentum of their own and may possibly require new forms of support. It remains to be seen to what extent the existing range of technical cooperation instruments may serve a broader and more appropriate application of such methods in the environmental sector in the long run.

9,

The public must be viewed as a resource, not as an obstacle

1.

The significance of alternative conflict management (CM) for development cooperation (DC)

Wherever people live together in societies there are disputes. Societies do not differ in that in some there are disputes and in others not: they differ only in the intensity of conflict and the manner and modalities of dealing with it. The same is true of environment-related disputes, so it is not surprising that with the growing significance of environmental and resource protection environmental conflict is on the rise. There are many reasons for this. In developing countries, where the connection between living conditions and the condition of natural resources is close, the consequences of resource utilization often make themselves directly felt. In industrial countries the causes often lie in the unequal distribution of benefits and risks - above all with large development projects - in the perceived threat to the quality of life on all levels, in the difference between the views of experts and ordinary people (often heightened by disagreement among the experts themselves), and in the problem of dealing with uncertainties and residual risks. A frequent result is that environmental decisions encounter resistance by those affected and are, in some cases, even challenged in court. The question arises as to why there is growing resistance vis-a-vis state interventions particularly in the environmental field and thus presents a challenge to every political system. An answer to this question must take two processes of change into account, which appear in industrial and developing countries with varying emphasis and lapses in time: r

The future-orientation of environmental policy decisions The elements of policy have indisputably become more complex. In the face of growing global and regional danger to the environment (catchword: "risk society"), the question arises as to whether and to what extent existing structures and decisionmaking processes ensure that environmentally relevant decisions are in the best interests of the entire society with respect to quality of life and survival itself. At the forefront are questions concerning the acceptability of risks, of short- and long-term consequences of political decisions or the lack of them, and the incorporation of these interests into the political-administrative system with an accommodation of diverging interests through concrete decisions. It is precisely in the environmental sector that the discrepancy between society’s shortterm, here-and-now-oriented perception of time and the necessity of coming to terms with the long-term results of decisions is most acute. Solutions to environmental problems must to be complex enough to be effective, and new methods of reaching environmental policy decisions will need to be future-oriented.

r The legitimacy of environmental policy decisions The shift of emphasis observable in all societies from the legislative to the executive (and thus to administration) heightens in equal measure the problem of legitimizing (environmental) policy decisions and the problem of their complexity. The more decisions are made on the administrative level, the less accountability there is, and thus the question of substantive and formal legitimacy remains unanswered: the necessary process of representing various interests in political decision-making either does not take place or takes place only to a limited degree. 1

This has considerable effects on coming to terms with complex environmental problems. In addition to the technical, scientific dimension, these problems have a farreaching social dimension as well. Information on this social dimension is not automatically available in advance, but often surfaces only during the decision-making process. Administrative procedures to prepare for and take decisions must attempt to deal with both factual and social complexities. Only altered procedures can make this possible - procedures that are both transparent and participatory. The quality of a decision - its good sense or the lack of it - thus depends less on the decision actually taken than on the reasonableness or correctness of the procedure leading up to it: only through participation correct decisions can become socially equitable as well. Alternative dispute resolution (ADR) - a process developed chiefly in the USA - serves as an example of the above changes in the decision-making process in regard to transparency, participation and representation of all interested parties as well as constructive conflict resolution. Their application confirms the two trends in the environmental sector described below, which are also detectable (if with some delay) in Europe, but which will in the long term make their appearance world-wide: From sovereign, unilateral decision-making

Õ

to cooperation and consensus

From after-the-fact courting of acceptance

Õ

to communication and cooperative conflict resolution

In the USA, new forms of conflict resolution in the environmental sector have been developed and applied since the start of the 1970s. Based on experience in divorce and separation counseling, in the field of perpetrator-victim compensation, and in job-related confrontations at the workplace, disputes should be resolved through negotiation, if possible through consensus among the adversaries. Even though the original motive for finding new, "alternative" forms of conflict management (CM) may have been the overburdening of the courts, today they belong in the USA to the established range of instruments for resolving disputes in the environmental sector. The reasons for their increasing success and application will become clear in this paper through a closer examination of CM potential. At the forefront are the following premises: • A consensus solution resulting from dispute resolution has better prospects for implementation than does a decision which results in winners and losers. • The joint search for solutions strengthens a relation of trust among all concerned and prevents policy strangulation when the state is one of the conflicting parties. • Participation creates competence: citizens see themselves as the subject and not just the object of policy and administrative decisions. • In contrast to judicial proceedings, all parties may actively influence the form the solution takes. In developing countries, where environment and natural resources are becoming a decisive factor in the development process, alternative CM procedures have considerable relevance in environmental related conflicts. Environmental and resource-utilization conflicts are becoming more and more significant in development and investment projects. These conflicts often hinder the development process - especially when they touch on the survival of affected groups. The environmental sector of developing 2

countries is thus often marked by sharp conflict. In many developing countries, institutional weakness - such as deficient environmental policy, lack of regulatory legislative instruments, inadequate enforcement, unclear accountability and inefficiency of administration and judiciary - compounds the problem. Many pilot applications of alternative CM procedures in developing countries underline their practical relevance. In many cases it is possible to harness the traditional CM methods of the respective culture: how and under what circumstances is one of the central issues of this paper. The attempts of various developing country governments have already reached the point at which the institutionalization of alternative CM procedures becomes relevant. From the development-policy point of view, there are also a number of good reasons for paying more attention to alternative CM procedures: on the one hand, experience with (failed) large projects in developing countries shows that potential conflicts were not adequately anticipated. 1 On the other hand, the German Federal Government’s criteria for promotion 2 and the international debate on "good governance" have lent strength to discussion about modernizing the state. The key terms are: decentralization, administrative reform, participation, pluralism, emphasis on cooperation, and a new image of the state as a "service organization." Alternative CM procedures take on a central role in this regard. Thus the issue is raised: to what extent should the development and strengthening of capacities for environment related conflict-resolution be the subject of development cooperation? Considering the status of problems and applications described in some developing countries, it is amazing that alternative CM procedures haven’t long since found ready acceptance within technical cooperation (TC). Indeed, German TC has been promoting governmental and non-governmental environmental institutions for more than ten years, but with focus on technical projects and operational-level measures. However, environmental projects have not only a technical but above all a social component. By nature they often involve conflict and are complex and marked by a number of divergent interests. TC projects in the environmental sector often operate in this atmosphere without the ability to react appropriately to it. Alternative CM procedures could offer relief as one of a number of participative instruments. Consideration of how this issue might become a part of TC gave rise to the present paper, which seeks to define more precisely a possible field for cooperation within the CM sector and thereby in particular to reflect the TC role that emerges, given the special complexity and sensitivity of the issue.

1 2

Narmada in India and Arun III in Nepal represent in this case a number of similar development projects. Public participation, market economy and the development orientation of Government activities are above all worthy of mention in this connection.

3

2.

Conflict management (CM) as an integral part of effective environmental policy: experience with conflict management procedures

2.1

Current situation in the USA

It is hardly possible any longer to get a general overview of alternative conflict management (CM) procedures in the USA, which pioneered them. The different forms of procedures (e.g., in respect to the influence exercised by a third party) and the fields of application have multiplied. The major form used is mediation, in which a third party supplies relatively intensive procedural support. 3 In spite of these variations, conflict management may be generally defined thus: Box 1 Definition: Conflict Management

Conflict management (CM) procedures are more or less structured processes, attempting the joint resolution of anticipated or existing conflicts before reaching the threshold of juridical confrontation by involving all concerned, including, if need be, a neutral third party (mediator). The only comprehensive study of the practical application of mediator-supported negotiating processes in the USA was published in 1986. It summarized a decade of experience in an analysis of 161 cases, 4 categorized as site-related procedures (71% of the cases) or policy-dialogues 5 (29%). A more thorough differentiation of both of these types of procedures reveals, however, the broad spectrum of situations that may be supported or resolved with the aid of CM procedures: • policy decisions (in the form of dialogues) for the development of new policy approaches, e.g., to air pollution, toxic waste disposal, etc. • legislative initiatives and the negotiations that accompany them (in the USA "regulatory negotiations") on the formulation of legislative regulations: e.g., on forest management, air pollution, protection of endangered species, etc. The negotiated results are then passed on to the governmental institutions responsible as proposals for legislation and/or processed by means of customary procedures. • enforcement problems involved in finding solutions acceptable to all concerned, e.g., concerning land-use or ground-water maintenance, handling of emissions violations, etc. Often there is some leeway for interpreting legislative regulations. • site-specific problems concerning the resolution of a specific environmental problem, such as a waste incineration plant at a particular location, protection of a particular endangered species, or the pollution of a river, and, generally, all problems related to resource management 6

3 4 5 6

4

In greater detail in Section 2.5. G. Bingham, 1986. Site-related means in this case a spacially limited, specific environmental conflict, while policy dialogue refers to environmentally relevant planning, legislative projects, etc. Please see the comprehensive literature on the micro-level in developing countries for the specific possibilities and conditions of CM.

• consensus problems or disputes over jurisdiction among governmental institutions, where the objective is to reach agreement on the manner of cooperation within the environmental sector Sectoral classification revealed that conflicts predominated in the land-use, natural resources, water consumption, energy, air quality, and toxic substances sectors. In 42% of all cases the objective was to reach a joint decision; in 40% it was to draw up joint recommendations; in 18% to improve communication. For the participants in the CM procedure, the process itself was as important as achieving a result: How can I influence decisions? How fair and efficient is the process? The relationship to and communication with other participants were considered very important. In a total of around 80% of the cases it made almost no difference to the result attained whether a policy dialogue or a site-specific conflict was concerned. The rate for implementation of agreements in site-specific conflicts was 80%, in policy dialogues, at 40%, considerably less, indicating that implementation is more difficult to achieve in such cases. The reason may be that the officials responsible for implementation have not participated, or it may be the structural weakness of an administration dominated by special interests. The number of cases examined does not, however, allow the conclusion that CM procedures are the dominant mode of conflict resolution. The forms of CM without mediator support still dominate - for example, judicial and administrative decisions. Although no recent figures on developments in the USA are available, the increasing professionalization of this sector and the legislative and institutionalization efforts of recent years allow to conclude that enormous growth is taking place in this form of conflict resolution.

5

2.2

Varieties of conflict sources

The type of conflict source may be of decisive significance for the selection and structure of an appropriate CM procedure and should be taken into consideration in the conflict analysis (v. Section 2.6.2). This applies to all varieties of conflict and to all levels on which they occur. Theoretically, five varieties of conflict causes may be identified (v. box 2): Box 2 Varieties of conflict sources

Relationship problems • strong emotions • prejudices/stereotyping • poor or miscommunication Value differences

Structural problems Resources • • •

Data/information problems

• •

lack of information different interpretation

Interests procedural

administrative procedures distribution of power/authority time, place

psychological

substantive

Copyright CDR Associates

r Problems on the relationship level occur mostly in the face of differing perceptions, communication problems, stereotypes, prejudices and strong emotions. r Data problems crop up when information necessary to decision-making is lacking, when people are inaccurately informed, or when the relevance of available data or their interpretation is subject to debate. r Divergent interests, perceived or real, often lead to conflict. They occur when both sides push for satisfaction of their own particular interests.The subject of dispute may be substantive (money, time, resources), or procedural (how is the conflict to be presented?) or psychological (perception of trust, fairness, respect). The operating principle for the resolution of this kind of conflict is that a sufficient number of the interests of all participants in these three areas is considered in resolving the conflict. r Structural problems are caused by certain types of relationships between institutions or individuals. Factors outside of the circle of parties involved in the dispute are often responsible for the conflict or intensify it, e.g., limited authority, lack of financial and human resources, geographical constraints, lack of time, and also organizational structures such as inflexible hierarchies. 6

r Value differences emerge in differing systems of values and beliefs. Values lie at the root of convictions about right and wrong, good and evil, justice and injustice. Differing values must not necessarily lead to conflicts, which occur only when differences in values are not recognized or are asserted to be exclusive: under certain circumstances the relative importance of values may undergo a change.

2.3

Advantages of conflict management procedures...

The chances CM procedures have for success in general have already been outlined in Section 1. While the resolution of particular disputes may not involve every one of the benefits listed below, many of them are often present. r The voluntary nature of the process: Participants who decide in favor of a CM procedure do so because they are convinced that agreements reached in this way will be better than, for example, judicial decisions. r Speeding up the process: Since CM procedures are less formal than judicial proceedings, the participants themselves may determine their nature, prevent delays, and speed up the entire process. When time, money and the postponement of decisions entail major costs, solutions based on CM procedures are a good alternative. r Creative and appropriate solutions: CM procedures offer participating parties the possibility of reaching tailor-made agreements that are more likely to serve their common interests than are those imposed by a third party. They allow room for practical solutions that may be accepted on all sides. CM procedures also allow for greater flexibility amid the range of possible solutions, may focus on the root causes of conflict, and are not limited in the way judicial proceedings are. r The creation of better relationships among the participants: CM procedures that lead to results accepted by all are much more likely to improve present and future working relationships among participants than win/lose procedures such as litigation. r Higher rate of compliance: Participants who have reached agreement together are much more likely to stick to their agreements than are those who are to accept decisions imposed by a third-party decision maker. Thus CM procedures may contribute to the avoidance of costly re-litigation. r Reduction of risk in planning: From the point of view of administration and project contractors, the timely use of CM reduces the risk of failure at a later point in time by taking the needs and interests of all actors into consideration right from the planning stage. r Savings: CM procedures are in general less expensive than are court proceedings. The costs are essentially connected with time, and neutral third parties (mediators) cost on the average less than do lawyers. In addition, expenditures may be reduced through the avoidance of costs caused by delays. Such costs often occur due to the lapse of time between the institution of proceedings and a court decision - time that the participating parties cannot use for more constructive purposes. CM procedures reduce the tax burden of maintaining an inflated judicial structure, because they help avoid unnecessary court cases and thus lead to more economical use of public resources. And finally, participants in CM procedures report that even in cases in which no agreement was reached, the time and money for bringing the matter to court would 7

have been necessary in any case, and that the attempted CM procedure still made sense because it led to better understanding between the opposing sides. The CM procedure narrowed the range of judicially relevant points of disagreement and thereby shortened the court proceeding, making it cheaper for all concerned.

2.4

...and the conditions they require

In spite of the many advantages of CM procedures, they must not be seen as a panacea for every dispute. CM procedures are always open-ended processes, and will only lead to success if a series of conditions are met. Particularly the conflict analysis at the start of the procedure (v. Section 2.6.2) provides for an examination of these conditions. The following prerequisites may be individually specified: r Stakeholders are identified and prepared to participate: At the start, potential participants must be identifiable and basically prepared to take part in the CM process. r High priority for all participants: The resolution of the dispute must be a high priority for all stakeholders. This is often not the case when there are major power imbalances 7 and/or where interests are weighted from different points of view, e.g., between administration and an NGO. r Stakeholders depend on one another: The participants will only engage in a CM procedure if the satisfaction of their specific interests depends on the outcome, e.g., when the awarding of a timber concession by a Forestry Ministry depends on the cosignature of the Ministry of Environment. Dependency exists, too, when one actor has at least enough power to obstruct or to delay the project of another actor (e.g., environmental NGO). r All stakeholders expect advantages from CM procedures: A further prerequisite is that the actors don’t perceive a (subjectively) better alternative to a negotiated agreement, that is, no more favorable BATNA (Best Alternative To a Negotiated Agreement). As long as participating actors are convinced that they are more likely to get what they want by other means, e.g., through a court decision, no CM procedure will take place. r The conflict must be subject to a compromise solution: The conflict or its components must be negotiable. If there is no room for compromise, all mediation procedures turn out to be inappropriate - which is often the case in terms of pure value conflicts: e.g., nuclear power, yes or no?. r Decision-making authority of participants: The participants in a CM procedure must be assured as individuals or as delegates of interested groups and institutions that they are authorized to make decisions within the framework allowed for negotiation. r Relinquishing of decision-making sovereignty: There must be a readiness, in particular on the side of officialdom, to agree to an open-ended process and thereby partially to relinquish decision-making authority. r Frame conditions (e.g., public opinion) favor a negotiated settlement. r Financing is assured. 2.5 Conflict management (CM) procedures 7

8

See also Section 2.7 on the topic of power and balance of power.

The conflict resolution procedures used in the USA may be distinguished in regard to the degree of intervention of a third party. 8 The following chart shows the arrangement of the procedure on a continuum: Box 3

Copyright CDR Associates

CONTINUUM OF ALTERNATIVE DISPUTE RESOLUTION PROCEDURES INCREASING INFLUENCE/POWER OF A THIRD PARTY

COOPERATIVE DECISIONMAKING

THIRD PARTY ASSISTANCE WITH NEGOTIATIONS OR COOPERATIVE PROBLEM SOLVING

Parties are unassisted

Relationship building assistance

• Information exchange • Cooperative problem-solving • Negotiation

• Consulting • Team-building • Conciliation

Procedural assistance

• Coaching/ processconsultation • Training • Facilitation • Mediation

Substantive assistance

• Technical advisory boards • Evaluation • Fact-finding • Mini-Trial • Advisory mediation • Settlementconference

THIRD PARTY DECISION-MAKING

Advisory, non-blinding assistance • Non-binding arbitration

Binding assistance

• Binding arbitration • Mediationarbitration • Mediation, then arbitration • Disputes panels

Every communication within a dispute has either substantive or procedural elements. Very often, the manner in which we communicate with one another determines how or even whether or not our opponent takes in the content of what we say. A central premise of all CM procedures is that by means of separating the negotiation process from the negotiation content or substance the discussion proceeds better and common ground may be found. For this separation of process and content/substance, impartial third parties are necessary who - to differing degrees - become responsible for the negotiating process. Mediation, which is often central to CM procedures, is one of the CM methods that employs a third party to support a negotiation process. Such support is often sought when: the parties to the conflict do not know each other or potential adversaries have not yet been identified; there is no forum for negotiation; none of the participating parties feels called upon to convene negotiations; the relationships among the participants are so charged that discussion appears impossible; the manner of negotiation has not yet been determined; or negotiations have reached a stalemate and the parties are seeking procedural support in order to overcome it. Assistance at this level of intervention always has as its goal the improvement of the joint effort at problem-solving or the negotiation process, but not assistance with substance. At the same time, the mediator should know the negotiated topic very well, so that s/he may at least follow the complex negotiations in terms of their content. If need be, a mediator may also propose options to do with content in order to encourage participants to expand the range of possible roads to a solution.

8

Although all procedures have their specific application possibilities, in Germany mediation is the CM procedure that is best known and with which there is the greatest experience. Further discussion therefore focuses on this procedure. An explication of the remaining procedural varieties is to be found in Annex 3.

9

The mediator 9 should be an outsider without any vested interest in a particular result. During the course of a mediation procedure s/he frequently works with individual participants or groups in order to scout out acceptable options, which s/he then develops into proposals. No matter how much a given mediator may "steer" in an individual case, mediators have in common their role as catalyst to assist the participants in their search for their own solutions.

2.6

Building blocks and the course of a conflict management procedure

What is the actual course of a CM procedure? CM procedures are first of all not uniform in the sense that they all follow exact rules. It is exactly their non-formal nature that allows the (necessary) flexibility of such procedures. However, to conclude that every kind of structure is unnecessary would also be incorrect. Procedures for resolving conflicts need a minimal structure in the form of an "order of procedure and common understanding."10 If, therefore, in the following the essential steps of CM procedure with its various phases is presented, taking mediation as an example - being the most familiar German CM procedure - nevertheless, participants may basically tailor every CM procedure to suit their own needs and previous experience.11 For this, individual rules of order are often established (v. Annex 1).

Theoretically, four phases may be distinguished (v. box 4): Box 4 2TQEGFWTCNUVGRUKPOGFKCVKQP

Initiation phase Impetus from initiator Finding a conflict mediator Clarifying of financing Preparatory phase Preparing the conflict analysis Selecting negotiation participants Laying out procedural rules of order Procuring information Negotiation phase Eliciting interests (instead of positions) Creating a win-win situation Tying up the negotiation package Implementation phase Announcement and signing of results Commitment of parties Agreement on how to resolve future disputes

9 10 11

10

The terms "mediator," "facilitator," etc. are used in this context collectively, implying neither a single individual nor a male or female personage. P. Wiedemann; C. Karger (no year). The presentation of the procedural steps is according to Gaßner/Holznagel/Lahl, 1992, p. 34.

2.6.1 Initiation phase Before the mediation process begins, it must be initiated: Who wants the procedure to take place? How can a mediator be found? Who will finance the procedure? All three questions are closely related: r Impetus from initiator: Experience in the USA has shown that state authorities, environmental or conservation groups are the chief initiators of mediation processes. A search for a mediation process by outside persons or groups, who are not directly involved in the conflict but are interested in how it turns out, is another frequent initial impetus, as is active soliciting by professionals in the field. In cases where conflict resolution through mediation is legally prescribed by court decision - as in institutionalized labor disputes - the issue of initiation is a moot point. However, in Germany, and also in a number of developing countries, the initiative reverts primarily to municipality and government agencies. Before the initiator of a CM procedure begins the search for a mediator, a number of steps are necessary, including: • initial clarification that potential participants accept the procedure: Is the procedure already familiar to them? Is there (positive or negative) previous experience? Are there basic reservations? Is there a readiness to participate? • coordination with other decision-makers: How do participating decision-makers (administrations) view the procedure, taking into consideration regulatory legislation? Which administrative branches are to take part or are able to hinder the procedure? • clarification of the mediator’s mandate: What is expected of the mediator? What exactly is s/he to do? • clarification of leeway for negotiation: Where is there some leeway? Which positions may be sacrificed if necessary? r Finding a conflict mediator: The search for a suitable mediator is certainly more difficult in Germany, where conflict resolution procedures are still in their infancy, than in the USA, where CM procedures already have a 25-year tradition and where there are now a number of professionals in the field. Experience has shown, however, that the push-and-pull effect tends to strengthen both sides: thus the demand for services in this area might also lead to a greater supply of professional mediators, who, again, through PR work, information, advertising and above all the multiplication of successful mediation procedures, might stimulate greater demand. Finally, above all, CM procedures are particularly significant where they are as yet quite unknown or only in the trial stage.12 When a conflict mediator has been (provisionally) found, s/he will first clarify the assignment in greater detail. The compromise potential of the conflict, the mandate as defined by the client(s), the amount of time allowed, his/her personal acceptability and the assurance of his/her (financial) independence 13 are all primary concerns. The lattermost refers not only to the mediator’s fee, but also to the financing of all activities necessary to the procedure. Only when all this is settled will it be possible for mediator and client(s) to clarify the mediator’s ultimate role and to draw up a contract.

12 13

V. Section 3. Mediators with other sources of income, such as professors, have a high degree of (financial) independence.

11

r Financing: The question of mediation financing, including the mediator him/herself, is complicated and relates to the mediator’s neutrality. Whereas at first independent foundations predominated in the USA, today state authorities and industry often provide financing. Environmental organizations and citizens’ groups also share costs. This cost-sharing has the additional advantage that the motive for consensus is shared by all involved. If - as in the USA - CM procedures are prescribed as an instrument for non-juridical resolution of conflicts, the financial arrangements are often integral to such instructions. In countries in which mediation is still in the introductory phase, the issue arises of whether the project contractor may provide financing, if mediation is to lose its experimental and exceptional character in the long run. Experience does not support the commonly expressed fear that the funding source might compromise mediator neutrality and could be used by the financing body as a subtle method of leveraging acceptance. This fear underestimates the sensitivity of the participating parties to the mediator’s requisite neutrality and impartiality. It is a mediator’s job to make clear to the employer that there is no connection whatever between financing and a particular substantive position. Clearly, it would be very short-sighted of a professional mediator to let him/herself be used in this way, since his/her professional reputation is at stake.

2.6.2 Preparatory phase In the preparatory phase the cornerstone is laid for successful conflict mediation, the essential components of which are conflict analysis, identification of the parties to the conflict or their delegates, and preparation of the first meeting. It is decisive that all interested parties be represented and participate in the results of the negotiations. This alone ensures that the ensuing official decision, which is almost always necessary as well, will be oriented to the result of the negotiations and will be widely accepted. r Conflict analysis: The identification of the various interests will only be possible if a conflict analysis is undertaken. It is the task of the mediator to analyze the conflict’s dimensions with great care. Analysis of the parties is part of this (which parties are the most important and who are their spokespersons?), as is the object of dispute (what are the main objects of dispute?), and matters to do with the procedure itself (what do the participants think of consensual conflict-resolution procedures?)14.

At this stage a confidence-building process takes place in which the mediator must credibly convince all participants in the procedure that s/he is competent on the basis of his/her personal qualifications - or that his/her firm has the necessary experience - and that a mediation process is what is needed to resolve the conflict. Following the preparatory process the mediator must see clearly that all participating adversaries have the (obligatory) readiness to accept both him or her and the procedure itself as a means to conflict resolution. The decisive factor for the acceptance of the mediator by the conflicting parties is certainly the relation of trust between them.

14

12

On the methodological procedure for conflict analysis v. Carpenter, Kennedy, 1988, p. 91. A complete overview of all questions to be addressed in this phase is to be found in Annex 4.

r Selection of participants: The selection of the actual participants takes place according to what the conflict analysis reveals. This process depends on all interests being represented. If necessary, certain interests will have to be combined in order to produce the necessary operating conditions for a round of mediation.15 It is difficult to take non-organized interests into account. In such cases representation within a broader context might be proposed, e.g., through churches, charitable organizations, or NGOs.16 It is, however, essential that delegates be legitimate and that a true bond exist between them and the group or organization they represent. This type of feedback system is especially significant when participating groups represent a broad spectrum of interests, as is often the case with NGOs. r Procedural rules of order: When participants for the procedure have been determined, the next step must be agreement on substance, duration and rules of procedure. The procedural rules of order are generally recorded in writing. 17 At this stage incentives should also promote a brisk conducting of the procedure. Setting of exact dates for the duration of negotiations provides a clear framework for all involved and increases readiness to participate, although, of course, in reality such a framework can be no more than a goal. In the end, the CM procedure must be as open-ended in terms of time as it is in other respects. r Cooperative fact-finding: A central prerequisite for the success of the negotiations that are now to take place is the correction of informational imbalances.18 All parties to the conflict must have equal access to necessary and available information, so that all may be more or less equally informed. This requires an open-handed information policy on the part of both the authorities and project contractors, who both have at this point an opportunity to display their goodwill. Further, it must become clear what additional information will be acquired and by whom, so that there is a sound basis for negotiation.

2.6.3 Negotiation Phase When the participants have been specified, the procedural rules of order defined, and informational imbalances corrected, the actual negotiations may begin. r Interests instead of positions: During talks preliminary to the conflict analysis, the mediator has already defined the participants’ positions and the interests behind them in an "interests profile." It is now of great importance that the parties to the conflict recognize the difference between "positions" and "interests."

15

16 17 18

The relation between the size and functionality of mediation rounds is disputed. Experienced mediators consider groups with more than 30 participants problematical, groups with 15 - 20 optimal. Of particular significance in developing countries is the strengthening of the organizational capacity of marginalized groups (v. Section 3.1). A sample of procedural rules of order is to be found in Annex 1. An example of the correction of such imbalances is to be found in Annex 2.

13

Box 5 Conducting interest-based negotiations The point of departure for all CM procedures is a serious endeavor to solve problems jointly. The participants decide on a strategy for cooperative problem-solving based on their interests. Essentially, a participant may choose one of five strategies: • A competition strategy is chosen when one party’s interests are so narrowly defined that only one solution can be satisfactory, a solution that is unacceptable to the adversary. Thus the one side will make an effort to attain the best result for itself within a winner-loser framework. This strategy includes judicial procedures. • The "choice" of the loser is perforce an adaptation strategy when there seems to be no chance of gain within the winner-loser solution. Such a strategy is appropriate when the party hasn’t the power to assert its own interests. • The most unproductive procedure is conflict avoidance, which satisfies the interests of neither party. It is a strategy of non-decision, which often derives from uncertainty over the result of the conflict, from fear of defeat, or from unfamiliarity with CM procedures. • In cases where no other solution may be forced or accepted, traditional CM procedures depend on a compromise strategy. Negotiation takes place from the standpoint of opposing positions.

• As opposed to this, the strategy of cooperative problem-solving assumes that the positions of the conflicting parties are not identical with the interests and needs to which the conflict may ultimately be traced. The position is the objective decided upon; this decision, however, is determined by an interest. In a conflict of this kind, the problem that requires solution is then defined by interests, and these need not necessarily be so opposed as the positions of the parties make them appear at first glance. The strategy of cooperative problem-solving thus attempts to work out the basic needs and interests of the adversaries in order to discover leeway for alternatives and to be able to develop options for action. In this way, one may find a solution that considers the circumstances of all parties as broadly as possible (win-win solution) and may therefore be accepted by all.

Issues raised in the course of negotiations must be examined to determine whether fundamental interests or strategic-tactical positions are at stake. The mutual recognition of legitimate interests engenders a readiness to put aside positions that aren’t absolutely necessary to the realization of one’s own interests. At this point at the latest it becomes clear why not every phase of negotiations should take place publicly, and the issues of confidentiality and answerability to the public must be clarified in advance. It must be possible for the parties to the conflict, who usually represent group interests, to use what leeway they can, free of external influence, and if need be to sacrifice individual positions in the interests of an overall solution. Thus when a local dispute arises over a waste incineration plant (WIP), the interests that have led to the position "No WIP in our town!" must be analyzed. These may be, for example, fear of toxic emissions, anticipated odors, an increase in industrial traffic, etc. In the further course of negotiations it then becomes a matter of discovering whether or not the respective (justified) interests, may be satisfied through other means, such as improved filters, noise-abatement measures or compensation. r The win-win situation: After the various interests have been revealed, the mediator’s task is to create a "win-win situation." Every participant should leave the negotiations as a winner in that s/he can record successes in his/her interest. The simple decision pattern "either-or" must yield to the working out of a variety of possible decisions, which is more than simply crossing out some of the original positions in order to achieve one solution or to attain a tactical success. What is promoted is rather a broad consensus that presupposes readiness to compromise and understanding for the interests of the opponent. The acceptance of mediation procedures depends 14

conclusively on the extent to which it is successful in developing new, creative options, which could never emerge during a juridical confrontation. r The negotiation package: Negotiation packages are the result of proposals and alternatives that have emerged through the expression of all interests represented. The components of such a negotiation package may extend far beyond the object of a formal administrative procedure: participants are free to use their imaginations.

Box 6 Negotiation package For the example above of an waste incineration plant (WIP), components of a negotiation package might be, for example: The city constructs a WIP with considerably reduced capacity. In return, the groups affected, together with the municipal waste disposal office, commit themselves to drawing up and trying out an integrated concept of waste avoidance. The construction of the extremely expensive by-pass road originally planned is no longer necessary because of reduced industrial traffic to the WIP. Residents along the existing access road are given noise abatement barriers, whose financing is taken on by the state government. In addition, the hours for access to the WIP are restricted.

2.6.4 Implementation phase Negotiation is only effective if in the end the negotiating parties implement what has been decided. Setting up binding plans (Who does what? When? How? Where? With what funds/means?) and monitoring groups have both proved effective. Another tool for promoting implementation is economic incentive (e.g., making funds available on the condition that they be used in accord with the agreement) or sanctions in case of failure to implement (e.g., application by an environmental authority of regulatory or punitive measures.) r Mediation and signing: As already explained, even during negotiation there must be intensive feedback between the participating delegates and the parties they represent. Following the achievement of agreement in the round of negotiations, the delegates must have time for final checking with the parties they represent. If given approval, the results of an agreement may be finalized by signing. r Commitment of the parties: In the ensuing implementation phase the parties to the conflict commit themselves to the negotiated agreement - legally, if need be. There are no significant legal complications involved between project contractors and the groups affected, and this is in fact the usual procedure. There are, however, narrow limits to a contractual obligation or agreement on the side of the authorities, since such administrative decisions take place through a formal proceeding (see Box 7). Nevertheless, the decision-making of the administration may well take the results of the negotiation into account, viewing them as a supplement to - though not a replacement of - the official judgement. The administration is basically free to adopt mediation-supported negotiation as its own and to use it as a basis for a formal resolution. Especially in the case of conflict-laden decisions it may be very much in the authorities’ interest to orient themselves to a solution for which a consensus has already been achieved.

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Box 7 Legal obligations of participants to the negotiated settlement The success of a CM procedure depends on the extent to which implementation of the negotiated settlement is binding. In most countries, however, legal barriers prevent in advance legal commitment by the administration.3 The possibility remains, however, that the administration may opt for de facto self-commitment to the negotiated settlement. Self-binding in advance commitment by an authority is allowable with the proviso that it be justified by circumstances, that it be made in accordance with official planning regulations, and that it be substantively beyond reproach in terms of judicious consideration at the time of the in advance commitment. This prerequisite of lawfulness for de facto self-commitment is also applicable when an authority participates in mediator-supported negotiations and feels itself bound by the agreements reached during them. Aside from de facto self-commitment, there are other ways of achieving legal commitment by the remaining participants in negotiation: For instance, the administration may declare the results of negotiations affecting project contractors to be binding and impose relevant standards. The project contractor may reciprocate by legally contracting to fulfill the concessions it has made vis-à-vis the administration and other participants. In the process it could make its own services dependent on a contractually-specified return service. Also possible is a contractual implementation of the negotiated results between project contractor and the negotiation participants who depend on the authority. In the USA negotiation processes have not for a long time been limited to exclusively informal administrative procedures. They are increasingly and in various forms already built into administration procedure regulations. Thus in 1990 Congress passed the Administrative Dispute Resolution Act, which provides generally applicable regulations for using CM procedures. According to it, federal authorities have the right to introduce a CM procedure whenever the parties affected by an administrative decision agree to one. Since the beginning of the 1980s, in some states of the USA, negotiations are a required part of the formal administrative procedure for constructing toxic waste disposal plants. The Environmental Protection Agency (EPA) uses mediator-supported negotiation processes to generate administrative regulations and laws. These "Regulatory Negotiations" became necessary when more than 80% of the administrative regulations enacted by the EPA were disputed in court, thus considerably delaying or even preventing their application.

r Agreements for the resolution of future disputes: In order not to waste participants’ time and money if problems arise later on, mechanisms for the resolution of future conflicts should be built into the framework of the negotiations. In practice, however, the possibility exists that individual persons or groups may not feel bound by the negotiated settlement. Any parties that are authorized to sue and have not as a result of the negotiations formally rejected recourse to law may resort to judicial review. For this reason the importance of comprehensive representation of all interests and of constant feedback during the negotiating process cannot be overestimated.

2.7

Evaluation of CM procedures by authorities, project4 contractors and other participants

In order to evaluate CM procedures as tools for conflict management, a measure for success is needed and may be found on various levels. Clearly, a CM procedure has been successful when it has led to a consensual negotiated settlement. The implementation of agreements is another measure of success. In both cases, one can 3 4

16

V.B. Holznagel, 1990, p. 213 f. What is meant by "projects" is not only new projects on the part of industry / business or the state which might result in conflicts, but also those that are introduced to already existing conflict situations.

only speak of success when all participants rate the outcome better or more time- and money-saving than other forms of conflict management (such as court decisions). But negotiations results and their implementation as measures of success do not fully take the use of the CM procedure into account, and the participants actually reap further benefits that should be included in any evaluation of CM procedures. Even when it was not possible to reach consensus, the participants may have acquired useful experience: the procedure’s open communication process may have shed light on the positions, interests and motivations of other actors. These in turn clarify the individual position of each participant. What are the limits to and possibilities for negotiation with others? What obstacles are insuperable? Further negotiation then becomes more reasonable. The effects on the future relations of the partners to the conflict should also be brought into the balance. Besides all this, a CM procedure may also be the start of a learning process for all participants, which may lead in turn to strengthening a sense of responsibility in conflict-charged situations: compared to "alternative" CM procedures, court cases constitute a typical hierarchical form of conflict resolution, since the resolution mechanism in such cases is the decision on "who is right," and ascribes to the court a higher instance. In CM procedures on the contrary, the participants attempt to attain a compromise acceptable to all. CM procedures may thus contribute ultimately to a change in the political culture. From the perspective of the participants - in this case authorities, project contractors, and those affected (individuals, citizens’ groups, etc.) - CM procedures are variously evaluated, as might be expected: r Authorities: CM procedures may lead to a limiting of the decision-making powers of authorities and are therefore initially approached with caution. In CM procedures tied to formal procedures like the granting of permits, uncertainty arises from the fact that they depart from the strictly formalized course of official decision-making. Authorities must always consider the possibility that their decisions will be judicially reviewed and must meet legal requirements. The object of the review is then, additionally, to what extent procedural regulations were followed. However, from the official viewpoint, there are a number of weighty arguments for using CM procedures: the usual informal preliminary negotiations with the respective project contractors or applicants for permits are replaced by the newer preliminary negotiations involving more participants. By taking into consideration the various interests of the participants, the decision base is improved in the sense of an overall planning result. The administration, often under pressure from both applicants for permits and permit opponents, can better realize its role as impartial guardian of all interests through broad discussion of planning deficits and project effects.5 The CM procedure, originally viewed as an additional burden, may actually lead to a reduction of work and a further guarantee of the formal planning and permit procedure, since the latter gleans the results of the negotiation process and the probability of long drawn-out court proceedings afterward is reduced. Finally, for an authority, certainly the increase of legitimacy and acceptance of its decisions is a decisive argument for using CM procedures. r Project contractors: The project contractor's reservations vis-à-vis negotiations are primarily that they take time and money and must be made to "pay." Experience shows, however, that applicants for permits often initiate negotiation processes, which promise greater chances for the actual realization of their projects and a greater degree of acceptance among the population. This, however, assumes in advance that project contractors enter fully into the negotiation process and on its own terms; that is,

5

This is naturally not the case when the project contractor and the permit-granting authority are one and the same, e.g., in the case of traffic route planning.

17

that they are ready to make concessions, and are not confusing CM procedures with simple methods of gaining acceptance.

18

r Those affected: Mistrust of voluntary negotiation processes is greatest among those potentially affected. 6 Their skepticism is based on the unequal power among the various participants, reflected in their unequal financial leverage, information imbalances and different legal positions. The following basic conditions are therefore formulated for the participation of individuals or representatives of citizens’ groups in CM procedures:7 • • • • •

publication of all information equal participation of those affected capability and readiness to share definition and decision-making with those affected correction of information imbalances readiness to compromise

To even out existing power imbalances, CM procedures prescribe rules that ensure the access to information and technical support that all participants need. Comprehensive information is the deciding factor in effectively coming to grips with conflict. The information gained in the process may also serve as an incentive for participation in the procedure. Besides, CM procedures may be designed in numerous different ways, some of which may lead to the raising of environmental standards. However, often very early on, potentially affected parties have set their minds against a project, and this stands in the way of participation. Participation in a CM procedure means taking a first step away from "no-option" to "conditional acceptance."8 This strategic situation - often difficult for the groups affected - requires in individual cases careful evaluation and weighing of the chances and limitations of the CM procedure. What must above all be clarified is what realistic alternatives there may be to participation in the CM procedure. Box 8 What does "power" mean? "Power means the ability within a social relationship asserting one’s own will, regardless of resistance and regardless of the nature of the occasion." Based on Max Weber’s definition, the roles appear at first sight to be clearly divided: on the one side, the strong state, collaborating with industry, multinationals, etc.; on the other side, the weak, powerless individual, who must humbly submit to the will of the powerful. But reality is different, as, for example, the "Brent Spar"-conflict between Greenpeace and Shell David and Goliath - showed. Turnover, wealth, connections and influence are the cards in one party’s hand; in the other’s, the mobilization of public opinion through the media and with it control and pressure. To these, boycotts and the threat of court actions may be added: in other words, generally making life difficult for the other side. Project contractors indeed avoid public confrontation and monitoring but are at the same time interested in a "clean" image. The threat and influence potential of one party - i.e., the adroit use of this dilemma - creates a general incentive for the other parties to negotiate. The balance of power is put in a different light and is leveled out. In both industrialized and developing countries, NGOs 9 have evolved into effective opponents of established power cartels and are considered negotiation - and to some degree cooperation partners to be taken seriously. Experience shows that in developing countries, NGOs support the interests of marginalized groups very effectively. What is decisive for NGO effectiveness is, however, a minimum of bureaucracy and the free flow of information. 6 7 8

At least in Germany, where until now relatively few procedures have taken place. Ökoinstitut Darmstadt, according to Gaßner, Holznagel, Lahl, loc. cit. p. 85 f. If the CM procedure is only in a very early (planning) stage, a "no-option" is not to be excluded.

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2.8

The content of negotiated settlements

It is sometimes argued that negotiated agreements in the environmental sector treat the environment as goods to be bartered, and that participating parties may reach an agreement at the expense of environmental protection. Such a position reflects the experience that environmental viewpoints often conflict with economic interests and other political objectives and are not given their just due. It must not be overlooked, however, that environmental legislation and legally defensible environmental positions can never be subject to negotiations. No one negotiates over something which is his or her right in any case. What is negotiable is only the leeway for making decisions or legally non-assailable compensations. These also make it possible to "put in a plug" for the interests of environmental protection. As already suggested above, one advantage of CM procedures is the range of possible negotiation results, the variety and breadth of which may not be expected from administrative resolutions. If CM procedures are thus to be more broadly implemented and become more widespread, this flexibility of informal negotiations as opposed to formal administrative procedures must be made available to all participants. The objective of CM procedures is an optimal balancing of interests: that is, at core, a win-win situation. The following examples present possible subjects for negotiated settlements: 10 Avoidance measures: At a relatively early planning stage, the necessity for and dimensions of a planned project may be discussed in the framework of a CM procedure. Invasions of the natural environment or landscape and possible disadvantages to persons affected may thus be avoided or minimized. Thus a waste-avoidance concept, for instance, might make the planned construction of a community-operated waste incineration plant within the city limits unnecessary. Other conceivable results of a negotiation process might be reduction of plant size or the design of a regional waste disposal network. Protection measures: The particular object of negotiated settlements may be agreements that oblige project contractors to undertake measures that go beyond legal requirements. These might be for example: • precautionary measures beyond the current state of technology • obligations to monitor and institute improvements at certain intervals, regardless of official requirements • permission to review confidential records • inspection permission for experts • broadening of the obligation to provide information • participation of affected groups in monitoring and implementing the agreement negotiated Equalization and substitution measures: Equalization measures are also conceivable beyond the scope of the project planned. Such measures, which in Germany have until now been taken only in regard to environmental protection legislation, could also be agreed in other areas of conflict. For example:

9

NGO is used here as a collective term for the most diverse non-governmental organizations, such as environmental groups, legal aid groups, nature preservation associations, citizens’ intitiatives, grass-roots groups, etc.

10

The ensuing remarks are taken from Gaßner/Holznagel/Lahl, op. cit. pp. 57-62.

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• for the sake of water conservation, an obligation to help improve or expand a sewage purification plant that the project contractor may use, too • assumption of costs for passive noise prevention measures to reduce noise pollution caused by delivery traffic within the broader surrounding area • promotion of research to protect the health of residents in the immediate vicinity of the project, e.g., within the framework of environmental liability discussions, obligatory financing of long-term research to provide sufficient data Compensatory measures, particularly financial compensation: Finally, counterbalance measures such as leisure facilities may be negotiated to compensate for property devaluation in the immediate vicinity of a planned project. The characteristic of such compensation is that it does not prevent or lessen disadvantages caused by the project, but balances out such anticipated disadvantages through advantages of another kind. Such measures may be relevant where an optimal project concept already exists, one which takes into account all environmental and social impact criteria. Compensation thus does not replace avoidance, protection, equalization and substitution measures. It can only be used where environmental protection alone is not enough to compensate for a disadvantage that must be accepted for the sake of the general good. Thus, for example, within the scope of a CM procedure in Indonesia, it was agreed that an industrial operation - in addition to meeting criteria for the reduction of pollution - must also contribute financially to the development of the community affected.

2.9

Qualifications of a mediator

A mediator’s qualifications were once summarized as follows:11 • • • • • • • • •

the patience of Job an Englishman’s stalwartness an Irish sense of humor a marathon runner’s endurance an American halfback’s ability to dodge Machiavelli’s shrewdness a psychiatrist’s knowledge of human nature the skin of a rhinoceros the wisdom of Solomon

and, more seriously, • integrity and impartiality • confidence in free expression (as opposed to the ordered communication structures of hierarchies) • belief in the human potential for development • the capability to distinguish what is desirable from what is do-able • sufficient personal motivation and confidence and readiness for self-examination • know-how on conducting negotiations and faith in collective decision-making The qualifications cited are mostly personal qualifications that can hardly be acquired or learned as techniques. In addition there are, however, a number of helpful skills that may indeed be learned: techniques for conducting discussions, communication and moderation skills, rhetoric and specific procedural know-how that relates to the mediation process. Some requirements lie on the border between abilities to be acquired and 11

Simkin 1971, quoted by Fietkau, 1991.

21

personal characteristics, such as strategic, networked and systematic thinking. To what extent such qualification requirements are realistic as a whole, which ones are indispensable, and whether or not all may ever be found in any one person cannot be answered generally, but only within a specific cultural and social context. What is decisive for the ultimate realization and success of a mediation procedure is first of all that the parties involved accept the mediator. The qualifications required for this basic criterion may vary greatly: by North American standards, for example, only mediators with absolute neutrality, who are strictly impartial regarding the interests of the parties to the conflict, are acceptable, while in other cultures mediators may be very successful who have a hierarchical relationship to the parties or have close social or other ties to them. In many traditional societies, a mediator is often employed precisely because his/her close social bond to the web of participating parties obligates him/her to act conscientiously and fairly, so that s/he is trustworthy in the eyes of all concerned. Often mediators are expected not only to support the immediate problem-related negotiations but also to take on "symbolic communication" or interaction that emphasizes common ground, such as genealogy, value systems, etc. The following typology makes these differences clear. It shows, for one, that only a person who is "independent" in terms of a North-American or European way of thinking meets the ideas of a mediator, yet, for another, that a direct transfer of that way of thinking to others is not possible, and may even be a hindrance in practice in developing countries.

Box 9

Copyright CDR Associates

MEDIATOR TYPOLOGY

SOCIAL NETWORK MEDIATOR

• Previous and expected future relations to parties/ tied into their social network • Not necessarily neutral, but perceived by all to be fair • Very concerned to promote stable, longterm relations among all parties • Often involved in implementation • Generally has ongoing relationships with parties after dispute is termined • May use personal influence or peer/public pressure to promote adherence to agreement

AUTHORITATIVE MEDIATORS Benevolent mediator

ManagerialMediator

Vested interest Mediator

• May, but need not, keep up relations with the parties now or in future • Seeks the best solution for all parties • Generally neutral vis-à-vis the specific outcome of the dispute • Has the authority to advise, propose or decide • May have own resources to assist with monitoring and implemen-tation of agreement

• Generally has ongoing authoritative relations with the parties before and following the conflict • Seeks commonly developed solutions within the parameters prescribed • Has the authority to advise, propose or decide • May have own resources to assist with monitoring and implemen-tation of agreemnet • Has authority to enforce agreement

• Has current or anticipates future relations to one or more of the parties • Has a strong interest in conflict outcome • Seeks solution in own and/or favored party's interests • Can/may use influence or force to implement the agreement • May have own resources to assist monitoring and implementation • Can/may use leverage or coercion to enforce agreement

INDEPENDENT MEDIATOR

• Neutral/impartial visà-vis relations and specific outcomes • Serves all parties • Can/may be a „professional“ mediator • Seeks commonly accepted voluntary and non-pressured settlement developed by all parties • May, but need not, participate in monitoring of implementation • Has no authority to enforce agreement

Even administrations, which are not basically disinterested, may be successful mediators. "eminent persons" in India, "fat old men" in East Africa, "public personalities" in Germany, 22

"consulting firms" in the USA - the list may be as long as one likes. The spectrum of qualifications goes from "supposed" or "rumored" qualities to pure formal qualifications or combinations of both. The necessity, for example in the USA, of the mediator’s impartiality and neutrality does not mean that a mediator may not have his or her own views about the subject and the outcome of the conflict. No one is fully disinterested. Disinterest and neutrality mean in this case that the mediator separates his/her own ideas about the possible outcome of the conflict from the wishes and ideas of the parties to the conflict and concentrates on helping them make their own decisions, without favoring either party unduly. The ultimate criterion in the choice of a mediator is whether or not s/he is accepted by all parties to the conflict. The qualifications listed above include no information whatever about substantive professional qualifications. Mediators will probably never be in a position to be expert in all details. This is true above all of environmental conflicts which are not site-related, but rather of a political nature. Specialized knowledge is certainly necessary under certain circumstances, but the conflict mediator him/herself need not be the expert.

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3.

Environmental conflict management and development cooperation

3.1

The context

Policy planning projects in the environment are politically sensitive, since they are liable to the suspicion that donor policies are being imposed. This is especially true of policy instruments originally developed and practiced in European and North American cultural areas and so having (apparently) no affinity with the partner culture. Projects in this sector therefore require correspondingly careful planning and implementation. Wherever conflict management (CM) procedures are made part of development cooperation, special demands are placed on both the partner and the development cooperation institution. Fundamentally, development cooperation can play only a catalytic role here, a role which is also characterized by an intensive learning process: at the outset, there is always an analysis of the "conflict culture" of the country involved, which must be made jointly with the partner (cf. Section 3.3). All subsequent measures must build on this basis. Thus it is evident that "ready-made" solutions are ruled out. The development cooperation institution is itself a "learner" at first. But a factor very favorable to the application of CM is that many developing countries already have experience in it, partly based on traditional forms of conflict resolution. Despite this country-specific precondition, there are nevertheless a number of framework conditions (environment-specific and non-environment specific) which are requisites for the introduction and practice of CM procedures, and which can be found, at least in rudimentary form, in most countries: r Democratic structures/separation of powers: In general, the separation of powers (as a pervasive principle at all decision levels) is considered a positive framework condition. It is evident that, for example, the absence of a separation between judicial and executive would considerably restrict the prospects of a successful appeal by the affected party. In most developing countries such structures exist, if often in a less functional form than might be desired. r The rule of law: Beside separation of powers, the fundamental principle that the state is under the rule of law, and the existence of a functioning legal system are further positive framework conditions. With this go transparent planning procedures and decision-making processes, prescribed channels and the right of appeal. The comments above apply here as well: the rule of law is given lip service, but active observation of it is frequently scarcely demanded by the public or even obstructed. r Freedom of speech and of the press: Freedom of information, i.e., free access to information, as well as the right and the possibility freely to express one’s views, are of the greatest significance in removing power imbalances. r Decentralization: The greater the extent to which government decision making and implementation are decentralized, the greater are the chances, as a rule, of participation, and the more probable is a result that accommodates the citizenry and the interests of (all) participants. r Civil society/pluralism: A strong civil society favors the application of CM procedures. By civil society is meant here the presence of (organized) societal actors (associations, NGOs, churches, etc.), independent of the government, who fulfill social functions 24

jointly or singly. The beginnings of a civil society are found in nearly all countries, even in those whose centralist structures give good reasons for supposing that power is strongly imposed from above. So it is no coincidence that it is precisely the USA, with its strong civil society characterized by flat hierarchies and narrowly-confined imbalances of power, that has been in the vanguard of those developing and applying CM procedures. The non-environment-specific conditions outlined above should be taken as optimal prerequisites. Each individual case must be probed to determine to what extent conditions allow enough scope to apply CM procedures or how this scope can be expanded. In some cases even the framework conditions themselves could be the object of the intended change processes. The application of CM procedures, in addition to its purely instrumental function, has an intrinsic value as a social learning process tending to strengthen democratization and encourage citizen participation. CM procedures were developed in the USA with the express goal of overcoming perceived flaws in representative democracy. Environmental policy decision-making around the world is dominated by administrative procedures, essentially characterized by a top-down approach, with limited and strictly regulated participation. This is not surprising, since, on the one hand, participation means loss of power12, but, on the other, it is in this way that the requirements of the rule of law, such as the need for unified administrative action and safeguarding the general welfare, must also be taken into account. Where the capacity to carry out environmental policy stagnates or demonstrably lessens, however, whether at the decision-making or implementation level, alternatives should be considered. Meriting attention at this point, in addition to the already-mentioned context, are environment-specific conditions which influence the capacity for action. r Fragmenting of responsibilities: The fragmenting of responsibilities13 relevant to environmental policy narrows by many times the maneuvering room environmental institutions have and has substantial consequences for the areas in which CM procedures can be applied, if the institutionalized introduction and use of these procedures infringes on the competencies of environment ministries, which is generally the case. But a reform of the entire range of environmental policy instruments becomes increasingly possible as environmental policy itself is perceived as a crosssectoral issue and a common task, and is firmly established on a broad basis in government structures and in public debate. r Status of environmental institutions: Environmental ministries, in developing as in industrial countries, are - compared to the classic ministries - relatively weak actors. The political weight of state environmental institutions and their collaboration at the ministerial level is, however, advantageous for the introduction of new environmental policy instruments. Therefore allies must be sought and strategic alliances built. Potential allies aside from ministries include, first of all, environmental NGOs, interest groups, labor unions, law faculties and the media. In addition to a broad public debate, an important precondition is that the problems put individual participants under intense pressure, and that they perceive that these problems cannot be resolved in the context of the existing range of instruments.

12 13

Often equated with a weakening of governmental structures. The fear among government bodies of losing authority (equated to power loss) to the civil society, has its equivalent on the inter-ministerial level.

25

Box 10 Conflict management in Indonesia The environment ministry’s interest in applying CM procedures results from the difficulties met by this relatively new institution in measuring up to its tasks and in asserting environmental interests against the opposition of politically stronger groups and institutions. The structural weakness of the ministry - it has no project budget of its own and no regional or local structure, and so depends on the cooperation of other ministries to meet environmental needs successfully - made clear the necessity of employing new policy instruments.

Building on traditional conflict resolution procedures when possible is also advantageous. The consensus orientation of many cultures facilitates application of CM procedures. Box 11 Sociocultural framework conditions in Indonesia Sociocultural conditions in Indonesia favor a broad application of CM procedures. The dominant state ideology, in which the search for consensus and harmony is firmly anchored, has adopted a conflict resolution procedure rooted deep in Indonesian culture (mushawara), which seeks consensus among conflicting parties, and can therefore serve as a reference system. Historically, mushawara took place in the rigidly structured Indonesian society only between conflicting parties of the same rank. Disputes of greater complexity were and are resolved by first seeking a solution on a hierarchical level, and then transferring it to the next level up through representatives in an advisory process. These mechanisms are still referred to in current environmental CM procedures. Although environmental conflicts bring into confrontation groups/persons of very different ranks, the common cultural basis provides a favorable precondition.

3.2

Institutional framework

The decision to introduce and carry out CM procedures means that participating actors must be prepared to expend considerable time and effort to reach agreement. It is advantageous here if the agreement process is coordinated from a central position, such as the environment ministry. This is especially important if the ministry primarily has planning and coordinating functions, and depends on other bodies for implementation and monitoring. Generally the possibility and desirability should be examined of distributing responsibilities among regional administrative bodies at various levels, such as states, provinces or communities. The horizontal and vertical distribution of competencies suggests itself in, for example, site-specific conflicts, which are usually confined to geographically definable areas. If the use of CM procedures is planned on all levels, clear lines of responsibility must be drawn. Experience shows that in many countries it is helpful to have overall environmental legislation that establishes priorities, competencies, procedures and participative possibilities, and much else as well. In this connection, it appears worthwhile to establish on the provincial level clearing houses which can find and pass on or furnish expertise, document pilot cases and answer general inquiries. Whether a government body should assume such a function must be decided in each individual case. Since CM procedures include procedural options, their recognition and use is closely tied to an appropriate information policy.14 Their introduction requires therefore a communication and information policy, which reaches all relevant actors and involves them in the discussion process.

14

26

In contrast to, for instance, the use of marked-based-instruments, which are "demandoriented," and which the parties concerned can evade only at an economic loss, conflict management procedures are more "supply-oriented" instruments, whose use is conditional on the knowledge that they exist.

Box 12 Communication policy in Benin An example from Benin shows how important communication policy is. New environmental legislation there provides, under certain preconditions, for public participation in environmentallyrelevant projects. Exercising this right, with in some cases far-reaching consequences, presupposes that its existence be known at all administrative levels and by its potential users. Only then can such a right be exercised. For Benin, this requires a comprehensive, actively-pursued communication policy, including, possibly, even providing the means for people to take this particular opportunity, in order to forestall the impression that the legally-provided right of participation is only for the sake of appearances - to conciliate donors, for example.

Appropriate implementation stipulations and procedural guidelines for lower administrative authorities can also be of central importance to the use and implementation of CM procedures. Since site-specific conflicts are initially the dominant arena for the application of CM procedures in developing countries - this is confirmed by development and application in industrial countries -community or district administrations are as a rule the first authorities involved. They need criteria for the selection of cases and their preparation.

3.3

Intercultural exchange

The problems associated with intercultural method transfer have already been mentioned in connection with CM procedures at the beginning of Section 3. An absolute precondition for any transfer of experience must be the meticulous observation of the cultural environment and of the "conflict culture" in each developing country. It should be borne in mind that many developing countries have traditional methods of resolving conflicts. Against the background of specific cultural, social and political conditions, the varied spectrum of forms and applications that has evolved in developing countries deviates substantially from concepts evolved in the USA and Europe. So developing countries face the question of how to revive and promote these various existing approaches. The (necessary) adaptation of traditional forms of conflict mediation presents a special challenge, which does not involve playing off "traditional" against "modern" methods of settlement, but instead poses the questions: "What works best in a given society? What traditional elements can be supported effectively and combined with modern elements? How do we reach ‘better’ decisions?" In order to answer these questions, it can be helpful to "decode" the society concerned by examining a number of variables15 that influence its problem-solving culture. r Cultural views toward cooperation, competition and conflict Strategic options and possible outcomes of the "resolution" of a conflict: • • • • •

15

Avoid Accomodate Compete Compromise Integrative solutions

→ stalemate/loser-loser → loser/winner → winner/loser → shared gains/losses → winner/winner

CDR Associates, Boulder, Co. USA, 1995

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r Cultural views of relationships • • • • •

hierarchical/horizontal significance of age/gender/race/ethnicity how relationships are constructed (e.g., through "contacts", clientele) context: where and what has already been done content/activity • emotional/objective r Cultural views of problem solving or negotiation processes (who and how?) • • • • • •

framing the problem initiating the problem solving process identifying issues and interests processing/handling of issues developing options reaching final agreement • Implementation r Cultural views toward time • differing conceptions of time • planning horizons r Cultural impacts of language and communication • • • • • •

structure: "face-to-face"/intermediary content direct/indirect same language/terminology logical sequence/argumentation translation/translators • non-verbal r Cultural impacts of larger social structures (ideology/religion, institutional and organizational structures) • cooperative/conflict-oriented ideologies/religions • structures of family, neighborhoods, businesses, governments r Cultural views toward and the role of third-parties • • • •

direct/indirect formal/informal mediation structures mediation role and procedures

r Cultural views toward venue and space • • • •

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outdoors/indoors formal/informal set-up/structure distance/proximity

Such an analysis produces a multifaceted image of the "conflict culture" of a society. An image derived in this way can serve as a point of departure for technical cooperation. Practical experience to date in developing countries shows a wide variety of traditional conflict resolution mechanisms, including many elements that approach our own understanding of mediation. Thus, numerous cultures make use of a third person as conflict mediator. As already explained in Section 2.9, these mediators differ from one another just as the process of conflict mediation does: for instance, according to the degree of influence exercised on the decision-making process, the result, the relation to the conflicting parties, the extent of neutrality, partiality, and much more (cf. Box 9).

3.4

Operational planning

Once the decision for a broad application of CM procedures has been taken on the policy level, in order to put them into operation a number of basic questions must be answered, of which the following are examples: r In which cases should CM procedures be used? • • • • •

political dialogues legislative negotiations site-specific environmental problems enforcement problems or deficiencies conflicts between state institutions

r What type of CM procedures should be used? • cooperative decision-making • third party assistance • arbitration r According to what criteria can/should suitable cases be selected? • • • • • • •

basic negotiability of interests simplicity/complexity identifiability of parties problem-solving potential readiness to compromise slight risk of failure urgency of problem

r Who can/should initiate a CM procedure? • state sector (ministry, parliament, executing authorities, etc.) • NGOs, churches (e.g., in Bangladesh), universities • private sector (industry, associations: e.g., in Singapore, Hong Kong) r Who should appear as independent conflict mediator? • • • •

government officials private professional mediators credible, available, independent and/or recognized individuals volunteers (unpaid: e.g., in Sri Lanka)

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r How can the neutrality of potential mediators be assured? • • • •

selection of independent mediators working in teams supervision code of behavior/ethical rules

r How can/should the use of CM procedures be firmly established organizationally and institutionally? • • • • •

within the framework of an existing organization by founding a new state organization by founding an independent organization within a network through private professional mediators

r What services should a potential mediating organization provide? • disseminating information • supplying a pool of mediators • documenting cases, supplying literature These questions arise whenever institutionalization is attempted. For development cooperation, a wide range opens up of possible advisory and support services, which will be more specifically described in the next section.

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4.

Approaches for development cooperation

Probably there will not be in the foreseeable future any policy planning projects in the environment that deal exclusively or even primarily with conflict management (CM). There is much to suggest that GTZ, on the one hand, should concentrate on selected cases where consultancy services are needed on aspects of CM procedures and, on the other, on integrating advisory services in this sector into the broader approach of policy planning, to which environmental legislation, environmental planning, environmental information systems and reporting, etc., all belong. CM is not an independent field of cooperation, but rather an option in projects which are concerned with institutional development in the environment. Objectives, activities and their results, and the approach taken by cooperation programs in this field depend strongly on the initial situation and the point of intervention in each instance. Whether, and in what form, CM procedures may be integrated into cooperation should be decided in dialogue with participants. The extent to which this is advisable and realistic, however, can be examined in the following cases: • projects concerned with policy planning and institutional development in the environment • projects concerned with designing or implementing national environmental action plans, national strategies for sustainable development and similar plans • projects concerned with environmental planning • projects concerned with protecting the environment and natural resources, especially in the areas of regional rural development, combat of desertification, forestry management and nature conservation • projects concerned with advising a government, particularly in regard to decentralization • projects concerned with environmental related training and upgrading or with university curriculum development • projects dealing with technical and/ or financial cooperation in the areas of energy and water supply, sewage and waste disposal, etc. The points at which intervention is possible vary according to the point in the project cycle. While integration of assistance in policy planning can be decided on through dialogue in the course of initiating, identifying, testing and planning new projects, projects already well under way are less flexible. Here project progress reviews, evaluations, and negotiations about prolongation furnish an opportunity to begin a dialogue on these questions with the partner. It should be made sure, however, that the structure of the partnership allows a good chance for an initiative in the CM area to succeed. Beyond this, the policy dialogue with the German Federal Ministry for Economic Cooperation and Development (BMZ) and accompanying pilot activities - for example, in the context of the Pilot Project Institutional Development in Environment - can provide occasions for dealing with this issue. Basically, it should be ascertained here to what extent collaboration is advisable and possible between various technical cooperation (TC) projects, and between financial cooperation (FC) and TC.

4.1

Principles of cooperation

The chance of achieving lasting success with environmental policy planning and institutional development in the environment increases with the partners’ sense of "ownership". This, however, does not preclude the possibility that individual institutions 31

(government institutions as well) may behave passively at first, showing little interest in CM procedures. A necessary precondition is the existence of individuals or organizations e.g., university professors, legal-aid NGOs, as well as concerned decision-makers in politics and economic life - who assume an effective promotional role as "local champions" of the procedure. For TC organizations, this means that participation and dialogue-oriented research, analysis and planning methods should be applied to the greatest possible extent. In the area of implementation, everything depends on a clear role-definition for the local partner on one hand, and for external contributions on the other. In no case will the pure transfer of expertise suffice to shape an effective policy planning program. This, however, does not necessarily rule out that external contribution restricts itself to such matters. This applies so much the more as experience in industrialized countries shows that, under some circumstances, a considerable time span can lie between the first debates (with a legal emphasis) about CM procedures and their (gradual) adoption16. Due to the multitude of relevant actors, (in part) divergent interests, and the culture-specific problemsolving mechanisms for conflict resolution that must be considered, the processes involved are mostly not linear, but partially erratic, iterative and conditional on changing political and economic trends. Therefore, next to the "ownership" question, the flexibility and transparency of planning and implementation are of central importance. Process orientation, meaning the stepby-step, iterative planning and implementation of activities should therefore basically characterize policy planning programs in the environment. Such programs should - not least because of the considerable need for information - be viewed and implemented as "joint learning processes." Implementation objectives such as, for example, "CM procedures adapted at all administrative levels," can serve at best as beacons which one approaches in small steps, especially since not a single partner institution can guarantee in advance the reaching of these objectives. Therefore, results or indicators for policy planning programs in the environment should be so formulated that they primarily state something about the direction and quality of the consensus and decision-making processes (for instance: "Law faculties take up the theme of ‘conflict management’ for the first time as part of environmental law lectures"; "Law association requests training course in mediation"; "Environment minister introduces the theme during ministerial consultation"; "Chamber of industry and commerce establishes an advisory office," etc.)

4.2

Partners in cooperation

The question of target groups and partners for cooperation in environmental conflict management can not be answered in general terms. While the long-term development objective is to institutionalize the establishment and application of CM procedures on all levels (for example: "CM procedures are independently and successfully applied by parties to environmental conflicts in a manner consistent with sustainable environmental protection"), medium-term project objectives will concentrate on the development of institutional structures: a dispute design system, as it is called. The corresponding programs or services that Germany contributes can seldom be limited to one partner organization. Although environmental ministries usually have responsibility for and control of the instruments by which environmental policy is steered, the planning 16

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Germany lags a good fifteen years behind the USA in making CM a ‘socially acceptable’ topic for discussion. Even though since the end of the '80s several dozen mediation or mediation-like processes have taken place, nevertheless any institutionalization is still remote.

and use of CM procedures require the involvement of other institutions in the state and private sectors. Here the fact that government environmental institutions are all too often among the "lightweights" must be taken into account, so that it is as important to form strategic alliances as it is to concentrate fragmented areas of responsibility. Therefore, policy planning in the environment should strive for a deliberate diversification of partners as early as the planning stage. This can, but must not necessarily, take the form of a diversification of executing organizations. It is also conceivable that the projects in question be established on "neutral ground": i.e., outside of the formal executing organization. For CM procedures this could be, for example, a law faculty. When configuring and implementing a range of environmental policy instruments or legal conditions, a relatively high hierarchical level is addressed. In many cases, especially in advanced phases, the first option to suggest itself will be to set up policy planning projects at the environment ministry, where responsibility, control and also, usually, the role of promoter in the state sector lie. Contact with those at the leadership level is important, although the immediate counterpart on the working level can be a policy planning department, or a (national) environmental authority, to the degree that it has the necessary competency and is charged on the policy level with developing environmental policy concepts. Establishing the project at appropriate community or provincial institutions is also conceivable, when the federal structure and the jurisdictions of the regional administrative bodies permit (for example, a municipal environmental office).

4.3

Phases and key activity areas

What possible starting points for TC support are there, and when is it appropriate? Rather simply put, TC support might take two directions which are not mutually exclusive, but which differ considerably in their range: r Support for pilot cases (P) r Support for the institutionalizing of CM procedures (I) In the first instance, the solution of a site-specific conflict, for example, can be made the object of a pilot case. As explained at the beginning of chapter 4, this can occur under some circumstances even in the context of a project supported by TC. The use of TC to support a pilot case is an option when • it is a sector-oriented, spatially limited project • the conflict can be resolved within the framework of the hierarchical levels cooperating with the project • there is as yet no TC project for policy planning or institutional development in the environment

The type of projects for which support of this kind would be appropriate include as a rule all resource management and waste management projects.

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In contrast, support for institutionalizing CM procedures can be considered only if TC projects exist whose focus is explicitly institutional development/policy planning in the environment. For this type of project, which, however, can usefully be supplemented by support in the form of pilot cases17, support for the institutionalization clearly takes precedence. The key questions for institutionalization are: • • • •

What is institutionalization? Why institutionalize? What should be institutionalized? How is institutionalization brought about?

The first two questions concern practical legal issues and governmental philosophy, and must be subject to an internal clarification process. At this stage, TC can only contribute to a modest extent. In contrast, a broad range of support possibilities opens up regarding answers to the remaining questions. To answer the question what institutionalization is, it will be helpful at the start to look at the various components that are possible objects of institutionalizing (cf. Box 13). Basically, all the areas named come into consideration. However, whether they should be institutionalized at all and, if so, with which of them one should begin, and how, are questions with which TC can concern itself. It is also not out of the question to institutionalize in several areas simultaneously.

Box 13

Copyright CDR Associates

Institutionalization components values, norms, attitudes of the

training of behavior/skills of • participants • Intermediaries (e.g., WHO)

• agencies • users • the public regarding cooperative problem solving

Development of

Identification and resolution of pilot cases

• general modes of procedure • specific strategies

provides training for participants in procedures/skills and shows the success of ADR procedures.

Structuring • • • •

17

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rules procedural regulations tasking organizational structures

Institutionalizing always requires reference to one’s own experience. Therefore, for a broader application of CM procedures, gaining experience in the context of pilot cases - to which one can frequently resort - is indispensable.

Depending on the status of the discussion in the partner country concerned, a classic18 sequence of phases can be distinguished, within which specific kinds of support are conceivable: • preparation • planning • implementation, monitoring and evaluation

The phases require advising at varying levels of intensity. Accordingly, various types of advising are employed.19

In connection with policy planning projects in the environment, GTZ offers a service package which may be used subject to the status and commission: • As part of project identification, GTZ conducts preliminary discussions with representatives of concerned organizations, "local champions," etc., and supports preliminary pilot activities when necessary, especially in the area of training and upgrading. Candidates are field staff in GTZ projects and project administration services who are familiar with the CM issues. Additionally, the pilot project on IDE, as it proceeds in selected countries, can provide support through short-term experts. If necessary, study and experts funds can also be used here. • Advisory services in project planning and project appraisal is fruitful if relevant ideas or applications from developing countries are at hand. This phase offers an especially good opportunity, in the context of an expanded project appraisal over a longer time period, to clarify the participant or partner structure and/or to advise in the development of a conception and procedure. • In the framework of the range of instruments described above, assisting partner institutions in the implementation of projects on policy planning and IDE. In the preparatory phase, due to numerous imponderables, it may be advisable to resort to the instrument of the "open orientation phase," which permits the development of a suitable concept and implementation of initial pilot activities together with the partner over a longer time period, without being committed at this early stage to long-term collaboration. • Monitoring and evaluation in the form of project progress reviews, etc. In the preparatory phase, individual decision-makers or potential actors such as industrial associations, national NGOs, etc., express a vague interest in CM procedures. The discussion of extra-juridical forms of conflict management is still in the beginning stages, conceptions of how to apply it are still unclear, and expectations are conflicting. At such a stage, it can be useful to attempt, through wide-ranging discussions of the chances and risks involved, to reach a common conception of CM procedures.

18

19

"Classic" in the sense that a country is a clean slate with regard to CM procedures. But as a rule this is not so. More probably, several phases will be in progress at the same time, and institutionalization will proceed in an iterative and erratic process. Supporting services can therefore be offered simultaneously in various phases. For types of advising, see also Annex 5.

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Box 14 Preparatory Phase: possible activities • Provision of "infrastructure" for interested parties, decision-makers, etc. ("tea-and-cookie role") • Holding national or international conferences, workshops and seminars for experts in order to introduce and disseminate the principles of and practical experience with conflict management • Identification of "local champions" and potential multipliers • Fact-finding missions to afford potential multipliers the opportunity of acquainting themselves onsite with CM procedures and conditions for their use • Support for establishing curricula/courses of training at universities (law faculties) in developing countries • Making contacts and initiating cooperation between relevant institutions in developing and industrialized countries • Advising/awareness-raising for various groups of actors (industry, NGOs, labor unions, churches, etc.) • Seconding multipliers to relevant training and upgrading courses in universities, training centers or independent professionals in the field • Support for "local champions" through material such as documented pilot cases from other developing countries, literature, or through seconding to attend relevant (training) events • Systematic evaluation of local case-studies • Analysis of "conflict culture" • Coordination of different conceptions of conflict management • Promotion of the founding of a national forum with interested ministers, the public and other donors

In the planning phase, political decision-makers or other important non-governmental actors (e.g., industrial associations) have decided on their readiness to adopt and apply CM procedures. Questions increasingly arise of institutional and possibly legislative integration, of adaptation to existing mechanisms, of areas of answerability, and of operational planning. Beside the continuation of the above-mentioned activities, additional tasks and possibilities for support arise.

Box 15 Planning phase: possible areas of advisory services • Advising the environmental ministry/environmental agency in planning the institutionalization process • Advising the environmental ministry/environmental agency in arranging the necessary coordination discussions • Support for selected pilot cases (selection, development of criteria, infrastructure, etc.) • Holding events related to special issues of institutionalization • Organization/implementation of seminars/specialist events for the exchange of experience with representatives from other developing countries on issues of institutionalization • Documentation of relevant processes in other developing countries • Advising and support in setting up centers of expertise • Initiation of cooperative relationships with relevant institutions • Planning, proposal and implementation of training and upgrading events with specific curricula for various administrative levels • Development of a communication strategy for the dissemination of CM procedures20 • Adaptation of procedures to, e.g., sociocultural and legal conditions • Clarification of tasks among participating institutions • Promotion of networking (newsletters, databases, etc.) • Establishing communication with the public (press releases, newsletters, etc.)

20

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On the theme of "communication", a GTZ/PVI OE 402 publication will appear soon.

In the implementation phase, CM procedures are carried out on the basis of operational planning and subjected concurrently to intensive monitoring and evaluation. By this time, (partial) data are at hand regarding many questions, and experience provides feedback which allows adaptation of procedures. Further opportunities for TC arise at this point, both in the context of pilot cases and of institutionalization: some overlapping is unavoidable here. Box 16 Implementation phase: possible areas of advisory services • • • • • • • • • • • •

Support, documentation and preparation of pilot cases (P) Financing of mediators (P) Support in implementing agreements (P) Case-by-case support for "weak groups" in correcting informational imbalances Training of mediators from "disadvantaged" groups (P) Professional advising for legal aid NGOs, among others (P) Supervision and coaching of mediators (P + I) Advising the executing organization in implementing procedures (P + I) Assessment of results and their implementation (P + I) Organization of training in developing countries (I) Composing country reports on putting CM procedures into practice (I) Legal advising: on the "adaptation" of CM procedures to existing administrative structures: if necessary, in extending application to negotiations about laws (I) • Systematic training to strengthen local capacities (I)

The enumerated possibilities are not exhaustive. They must also be specified in each case and adjusted to circumstances. It is unlikely that all of the listed support activities can be accomplished through the German contribution alone. The project partner must, beside providing adequate political back-up, also make its own substantive contributions. As the institutionalization process progresses, and with it the accompanying professionalization, however, local advisory capacities will come into being that should be put to increasing use.

4.4

Cooperation among development cooperation institutions

Cooperation with the Deutsche Stiftung für internationale Entwicklung (DSE) (German Foundation for International Development) is a possibility, especially in the field of training and upgrading. The Zentralstelle für öffentliche Verwaltung (Public Administration Promotion Centre) of the DSE in Berlin has for several years offered advanced training programs in the field of environmental administration for specialist and management personnel who are environmental administrators in developing countries (especially South Asia and Africa). These programs employ seminars, training courses and international conferences and second consulting experts. The work focuses on major issues in environmental administration, management, planning and information. Recently training modules on the use of CM and capacity-building procedures in the environmental sector have been developed which are used in seminars and training courses in both the German Federal Republic and in developing countries. For the future, it would be helpful if, step by step on the basis of past experience, specialized training programs could be developed which imparted at an advanced level practically-oriented knowledge and experience regarding the design and implementation of CM procedures. In developing countries where there is a lack of the specific qualification profiles that are important for designing or implementing CM procedures in environmental administration, it may be advisable to second integrated experts, which is done through the Centrum für internationale Migration und Entwicklung (CIM). 37

With regard to political foundations and other non-governmental development cooperation institutions, too, numerous points of contact arise in matters of policy advising in the environmental sector. This is especially true in the preparatory phase, when everything depends on the creation of pluralistic forums for a national policy dialogue, on the involvement of political decision-makers, and on public relations and cooperative research. For the latter, the Deutscher Akademischer Austauschdienst (DAAD) (German Academic Exchange Service) is another cooperating partner. It promotes, among other things, short-term periods of study in Germany and other countries for scientists from developing countries. Members of faculties of law concerned with issues of institutionalization and possible adaptation to existing legal traditions could be a potential target group here. A broad field of cooperation also opens up in the framework of partnership with universities. Thus, the ETH in Zurich is working on an environmental conflict research program in partnership with the University of Asmara/Eritrea. Similar partnership programs with German universities are also conceivable, in which faculties of law and management should also be involved. These points of contact and possibilities for cooperation, however, are opposed by difficulties arising from the pluralistic nature of German development cooperation. Nevertheless, on the whole they are outweighed in the area of environmental policy advising and capacity-building by the opportunities growing out of multi-sectoral cooperation.

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5.

Concluding remarks

It is difficult at the present to speculate on what the future significance of alternative CM procedures might be. Even in the USA, only a small percentage of environmental conflicts are dealt with in this way: recent legislation will increase their numbers, however. There are two grounds for supposing that such procedures will be gaining greater significance in developing countries: for one, it may be assumed that environmental conflicts will increase. Satisfactory solutions are unlikely through established - often overburdened administrative and judicial channels: thus alternatives must be sought. For another, current capacity-building efforts in developing countries that are tied to CM procedures will hasten the revival of traditional forms of conflict resolution. The broader and the more positive experience with these procedures turns out to be, the more this process will multiply. The specific conditions for successfully applying CM procedures are as varied as the partner countries themselves. Technical cooperation should welcome this challenging task. The success of cooperation in this sector can only be expected in the longer term, and is not always apparent at the start. Only relatively "soft" process indicators suggest positive effects at this point in time. So these must be carefully watched. This means that the counterpart - for his part - must be ready to hold his breath for a while, yet be willing to cooperate in environmental policy sector advising in the longer term, at least in view of the social and political aspects: CM procedures are clearly not self-serving, but serve above all the reaching of "better" decisions. In this way they serve as well to promote a general sense of responsibility and a readiness to translate ideas into action. The pluralistic dimension presents a great opportunity precisely for the institutional variety of the German range of technical cooperation instruments. To get the most out of this potential, however, participating institutions will have to display greater flexibility toward one another and more coordination on site.

39

Selected literature

Akademie für Natur und Umwelt des Landes Schleswig-Holstein (Publ.): Mediation. Verhandlungen als Mittel der Konsensfindung bei Umweltstreitigkeiten, Neumünster, 1994. Beck, Reinhilde; Schwarz, Gotthart: Konfliktmanagement. Alling, 1995 Bingham, Gail: The Conservation Foundation. Resolving environmental disputes. A decade of experience, Washington, D.C., 1986. Carpenter, Susan; Kennedy, W.J.D. Managing Public Disputes, A Practical Guide to Handling Conflict and Reaching Agreements, San Francisco, London, 1988. Claus, Frank; Wiedemann, Peter M. (Publ.): Umweltkonflikte. Vermittlungsverfahren zu ihrer Lösung, Praxisberichte, Taunusstein, 1994. Dally, Andreas; Weidner, Helmut; Fietkau, Hans-Joachim: Mediation als politischer und sozialer Prozeß, Rehburg-Loccum, 1994. Deutsche Gesellschaft für technische Zusammenarbeit GmbH (Publ.): Mediation/ Konfliktmanagement im Umweltbereich und seine Bedeutung im Rahmen der technischen Zusammenarbeit. Dokumentation eines Fachgesprächs am 10.11.1995 in der GTZ, Eschborn, Nr. 402/95 d PVI, Bonn/Eschborn, 1995. Fietkau, Hans-Joachim: Psychologische Ansätze zu Mediationsverfahren im Umweltschutz, WZB, 1991. Gans, Brigitte - Gesellschaft für ökologische Kommunikation GmbH (ökom): Mediation. Ein Weg des Umgangs mit Konflikten in der räumlichen Planung? München, 1994. Gaßner, Hartmut; Holznagel, B.; Lahl, Uwe (Publ.): Mediation. Verhandlungen als Mittel der Konsensfindung bei Umweltstreitigkeiten, Bonn, 1992. Holznagel, Bernd: Konfliklösung durch Verhandlungen, Hamburg, 1990. Gleim-Egg, Heidrun: Kommunikative Problembewältigung in Staat und Privatwirtschaft, Speyer, 1995. Gupta, Nandini; Beger, Gudrun: International Academy of the Environment Geneva (Publ.): Environmental conflict and resolution. Annotated bibliography bilingual French and English, Geneva, 1994. International Academy of the Environment: La résolution des conflits environnementaux, Sousse, Tunisie, 30 Mai - 3 Juin 1994; Genève, 1994. Ibid.: Environmental dispute management, Antalya, Turkey, 9-13 May 1994; Geneva, 1994.

40

International Academy of the Environment/Deutsche Gesellschaft für technische Zusammenarbeit GmbH (GTZ): Environmental Mediation and Negotiation Sharing experiences through case studies , Proceedings of the international conference held in Geneva, Switzerland, November, 1995; Germany, 1996. Kucharzewski, Irmgard: Vermittlungs- und Verhandlungsverfahren in der Abfallentsorgung. Amerikanische Erfahrungen - deutsche Perspektiven, Dortmund, 1994. Moore, Christopher W.: The mediation process. Practical strategies for resolving conflict, Boulder, 1986. Moore, Christopher; Santosa, Mas Achmad: Developing Appropriate Environmental Conflict Management Procedures in Indonesia. Integrating Traditional and New Approaches, In: Cultural Survival Quarterly, 1995, H.3. Wiedemann, Peter M.: Mediationsverfahren - Dialog im Widerspruch. Jülich, no yr. Ibid.: Mediation bei umweltrelevanten Vorhaben: Entwicklungen, Aufgaben und Handlungsfelder, Jülich, 1993. Wiedemann, Peter; Karger, Cornelia; Claus, Frank; Gremler, Dieter: Runder Tisch zur Deponiestandortsuche Bremen, Jülich, 1994. Wiedemann, Peter; Karger, Cornelia; Der Einsatz von Konfliktmittlungsverfahren bei entsorgungswirtschaftlichen Vorhaben: Praxisbeispiele und Handlungsempfehlungen, no loc., no yr. Zilleßen, Horst; Dienel, Peter C.; Strubelt, Wendelin: Die Modernisierung der Demokratie. Internationale Ansätze, Opladen, 1993.

41

Annex 1

An example for procedural rules of order (after Carpenter and Kennedy) I.

General

1.

The negotiation round is answerable for the progression and outcome of this project. Following the first meeting, at which information about the project is exchanged, negotiating issues are established and a schedule drawn up.

2.

The round of negotiations may set up sub-groups composed of its own members or other persons. These sub-groups have the task of studying and discussing particular issues intensively. Final authority remains, however, with the original negotiation round.

3.

Since the success of the negotiation depends on the participants’ readiness to cooperate, members must accept the following guidelines:

a) Personal abuse is not tolerated. b) The participants’ motivation and intentions are not to be challenged. c) The participants’ personal integrity and values are to be respected. Stereotyping is to be avoided. d) Promises are not to be made lightly and are to be kept. Delay tactics initiated to avoid undesirable results are not accepted. e) Lack of agreement is viewed as a problem to be solved and not as a battle to be won.

II.

Substitutes and observers

1.

Since in the end the success of the negotiations depends on personal relationships and trust among the parties, substitution of participants is not permitted.

2.

Before a decision may be made in regard to a sub-point, sufficient time will be allowed for consultation with the reference group or with legal or professional counsel. Technical experts may be invited at any time to contribute additional information. Only observers who have been specifically invited may participate.

3.

As soon as a participant in the negotiations makes known that s/he can no longer take part continually in the negotiations, a permanent substitute may be selected.

1

III.

Information

1.

All relevant information is made available to the negotiating parties.

2.

Information that may be used to support one’s own position is to be made known to and shared with all participants. Requests for privileged treatment are to be allowed only with express justification and acceptance by the entire round of negotiation.

3.

Reliable data are to be accepted.

4.

Information may not be withheld for tactical reasons.

5.

Statements and documents used in the course of the negotiations may not be used as evidence in administrative or court proceedings. However, the parties are at liberty to look to their rights. At the same time they should be aware that the initiation of a court proceeding may hinder the negotiation process and might affect their credibility as participants in negotiation.

IV.

Contact to the media

The negotiations are not open to members of the press. However, the round of negotiation commits itself to issue regular reports.

V.

Application

It is the task of the parties to the negotiations and of the mediator to see that the procedural rules of order are observed.

2

Annex 2

An example of correction of informational imbalances Because of the complexity of a project to renovate an occupied waste disposal site in Osnabrück (Germany), the municipal environmental authority sought counsel in the form of an advisory committee. This advisory committee, made up of concerned area residents, was to propose recommendations. One of the mediation team's central tasks was to see that the advisory committee became better informed. The following measures were taken to this end: • Fliers with basic information appear on a regular basis in broadly comprehensible form. • Varieties of press contact: the mediator drafts press releases, which the committee delegates prepare for the press. • A permanent exhibit is set up for the general public in the foyer of city hall. Soil cross sections, finds and discoveries, historical maps, interim results, etc. are graphically displayed. • The members of the advisory committee have full right of access to files and documents. • Appraisers present results in reports, which the mediator compiles and lays out in final form. • A series of seminars are held on toxicology for members of the advisory committee. • A special meeting is held on the renovation of occupied toxic waste sites.

Appraisal

The participants are for the most part satisfied with the process so far. There is broad acceptance of the expert level. The preparation, conducting and follow-up of the meetings have created an atmosphere of trust that allows existing conflicts to be resolved objectively. The advisory committee is valued as a successful attempt to promote understanding between the municipal administration and its citizens.

3

Annex 3

Conflict management procedures

1.

Cooperative decision-making

At the left end of the continuum there is a series of cooperative decision-making procedures that require no third-party support. Cooperative problem-solving procedures belong in this category, as do negotiations and information-exchange meetings. Information exchange meetings are those in which participants attempt to avoid conflict early on by exchanging expectations, positions and interests. The meetings are often the first step in productive joint problem solving or negotiation. Within the scope of cooperative problem-solving, issues of mutual interest are addressed. This procedure is best suited to conflicts that are only slightly polarized or in which the parties have not yet adopted any firm positions. This is usually the step that immediately follows the parties’ recognition that a problem exists and that a solution may affect everyone, whether positively or negatively. Negotiation is the major CM procedure that does not involve mediators. Negotiations as a rule involve two or more parties with real or supposed conflicts of interest. In the scope of voluntary negotiations of limited duration, needs and interests are formulated and proposals for (partial) solutions are worked out. The character of negotiations may vary widely depending on whether the participants stick closely to their positions or leave their interests open. Nearly all CM procedures in which the outcome of the conflict remains in the hands of the participating parties are variations of the negotiating process.

2.

Third parties assistance with negotiations or cooperative problem solving

The majority of all conflicts are solved by the participating parties themselves through joint cooperative decision-making. Only a comparatively small number of conflicts requires the involvement of a third party. Third-party assistance involves the intervention of a neutral and impartial person (or persons) in a conflict in order to offer the negotiating partners specific assistance, which may be substantive or procedural in nature, or which may affect relationships. The various forms of third-party support are categorized below. In actual conflicts it is not unthinkable for a third party to adopt more than one role or to offer various forms of support at one time.

2.1

Relationship building assistance

Often psychological barriers between or among the parties to a conflict cause negotiations to break down. Such barriers are caused by false perceptions or stereotyping the behavior, aims and motives of the opposing side, by communication problems having to do with style, form and content of information provided, and also by repeatedly negatively-valued behavior, which arouses resistance to cooperation. A third party may be necessary to help opposing parties overcome these psychological barriers and form positive relationships. Several procedures are described below. 4

Counseling and therapy: Individual counseling and therapy are typical ways of analyzing psychological barriers. Marriage and divorce counseling are the fields of conflict in which these procedures are commonly used. Conciliation: Often parties to a conflict - although interested in resolution - hesitate to take the initiative. The establishment of communication between the parties - possibly at a neutral place through a neutral third person - generally gets negotiations started. Conciliation is often practiced in connection with procedural support such as coaching, training, facilitation or mediation (see also 2.4.2.2). Examples of such activities in the sphere of national and international conflicts appear daily in the press. Team building: Team building is a procedure that aims to resolve existing conflicts within, between or among groups that are currently working together or will do so in future.21 Team building within groups aims to increase common understanding of roles, differing work styles and decision-making processes. An example of team building between or among groups is the clarification process between government administration and private consultants or contractors so that a common understanding of goal-setting, individual and organizational decision-making processes, channels of communication, etc. are created.

2.2

Procedural assistance with negotiations

Coaching or process consultation: This kind of assistance promotes proposals for the improvement of the negotiation process, including procedural proposals having to do with "how": How may I make conciliatory gestures? How can I improve communication? How may I best begin negotiations? How do I identify interests? How do I make an offer? How do I communicate possible alternatives? Etc. Training: Training is another form of procedural assistance. The participating parties together or separately - are trained in effective negotiation. Training frequently goes beyond negotiation and offers participants - in particular in the case of a common training process - the possibility of getting to know one another, of learning modes of procedure and skills, of adapting their expectations to the goals and results of negotiations and thus of improving the chances for the actual negotiation process. Facilitation: Facilitation22 consists of assistance with the design and implementation of a negotiation process by a third party who is impartial vis-à-vis the negotiation issue. The facilitator, unlike the coach described above, works with all the participants together and gives procedural tips on how the group may function efficiently and attain a result together. The facilitator may be either a member of one of the groups participating or an external consultant. S/he must not necessarily be an outsider, but s/he shooed remain impartial and limit him or herself to procedural issues.

21 22

In German the word Teambildung refers only to intra-group conflicts; in the USA the term "team building" also refers to inter-group conflicts. In German the term Facilitator is nearly synonymous with the term Moderator. In the USA the term is used much more precisely and narrowly for a particular kind of negotiating process moderation (v. Section 5.2).

5

Facilitation may be used, e.g., to improve data exchange in public meetings when the availability of relevant information is involved or in negotiations that are intended to lead to a particular result. In the latter case, the facilitator may help the parties make up a list of results acceptable to both sides or put together decision preferences which then are submitted for decision to a higher authority. In general, facilitation may be used when the participants or negotiation issues are not particularly polarized, when the participants are not particularly strongly committed to the issue, and the parties are certain that they will be able to work out together a solution acceptable to all.

2.3

Substantive assistance with negotiations

Although disputes based on procedural issues may be brought closer to a solution, disputes based on substantive questions require other solutions. In cases in which, for example, data constitute the central problem, procedures are required that ensure that negotiations do not break down because of missing information, different views of what is relevant, differing forms of research and data analysis, or different criteria for evaluation. Substantive assistance with negotiations may thus include the collection, evaluation and management of data, but it may also propose procedures through which data may be collected in a manner that makes them accessible to all. The following procedures serve the improvement of informational bases that are necessary for effective decision-making. Early neutral evaluation: The core of this procedure is a non-binding prognosis by a respected and well-informed person (usually a former judge or lawyer) on the possible outcome of a conflict if decided in court. It is assumed that the parties to the conflict thus get a more realistic idea of how their conflict might possibly be seen and judged by a court. This leads in the rule to the parties’ being better prepared to reach a realistic, reasonable and mutually acceptable agreement. Technical advisory boards: It is the task of technical advisors to prepare information or to reconcile differing data evaluations with one another. In these cases impartial third parties review the data that are up for discussion and make proposals on how the differing interpretations may be reconciled. These proposals may also be of a procedural nature and also include specific substantive recommendations. Advisory mediation: Advisory mediation presents a variation of the mediation already presented above in the scope of procedural support. In this procedure the mediator functions first, as usual, as a process advisor. In case the negotiations come to a dead end, however, and procedural assistance is of no avail, the parties to the conflict may ask the mediator to assist substantively as well, without his or her view being binding. The parties may use the counsel for their further negotiations or refer the conflict to a higher authority. Mini-trial: A mini-trial is a relatively new way of identifying and evaluating relevant information. It constitutes a brief, miniaturized court proceeding devoid of binding resolutions and without the involvement of an actual judge. A mini-trial is both a procedural and substantive intervention, which provides decision-makers with detailed information about the legal background of the conflict. It is based on the assumption that the ensuing negotiations will be more successful if decision-makers are thoroughly informed - as they are in a genuine court procedure - on the material-legal view of the conflict both from their own point of view and that of their opponent. 6

Fact-finding: Fact-finding is a procedure originally applied in labor disputes but used today in many other areas, too. The basic pattern is very simple: a neutral third party accepted by all parties to the conflict is authorized to use a "fact-finder" to get to the bottom of the conflict issue. The result of the research may be an up-to-date status report that presents both solutions and options and makes, as well, specific (non-binding) recommendations on how the conflict may be resolved. In either case, the results of the fact-finding report may be used in further negotiations. It is commissioned, for one thing, with the expectation that the views of a trustworthy, impartial third party will carry more weight if the fact-finding report is published, and, for another, with the hope that the report will be viewed as an unprejudiced, fair and impartial recommendation that the parties to the conflict will accept. The settlement conference: The settlement conference is a CM procedure within a court proceeding and constitutes a customary procedural step in many legal systems. It usually contains an advance meeting with the adversaries’ lawyers and a settlement judge. The objective is already in this stage to attain a mutually accepted negotiation result. The settlement judge does not serve at the same time as the judge in the first instance. The role of the settlement judge is similar to that of a mediator with the difference that s/he has particular juridical knowledge and is therefore in a position to comment on possible judgements on the disputed issue that might emerge from a court proceeding. Considering this, because of his/her knowledge of the law, his/her status as a judge and his/her experience with similar cases, the arbitration judge is much more powerful and influential than a mediator would be.

3.

Third party advisory and (non)-binding assistance

In many disputes neither information nor procedural support can succeed in bringing about agreement. In such cases the objective view or recommendations of an independent and experienced person may be of use. In the process, this kind of support resembles a court proceeding, unlike the negotiation and cooperative problem-solving procedures already described: the case is presented in a more or less judicial form to a "judge", whose opinion is requested. Negotiation between the parties to the conflict concerning their own agreement is not the main point here, nor is the aim of such procedures to help the participants bring the matter to a conclusion directly among themselves. The point is rather to get a clear recommendation or a binding or non-binding decision. Such arbitration proceedings strongly resemble court proceedings. Their main characteristic is the presentation of the case to a third, non-involved and neutral person. This person is often a lawyer, a person in public life, or an expert on the disputed issue. What is decisive for the choice of an arbitrator are his/her freedom from prejudice, fairness, impartiality and acceptance by the participants and his/her capability to evaluate information and to make decisions based on it. Usually the parties to the conflict have some say in choosing the arbitrator. Non-binding arbitration is the best known semi-juridical procedure for resolving conflicts and has a long tradition in labor disputes. Binding arbitration differs from non-binding arbitration in that the parties to the conflict commit themselves to accept the decision. Decisions taken in such cases have legal validity without, however, constituting precedents, and without the option of revision or referral to a court. Mediation arbitration is a variant of the arbitration procedure. In such a procedure a conflict is mediated by an impartial and neutral third party to the point of deadlock. The 7

mediator is then empowered to make a binding decision on how to overcome this deadlock. This procedure is not undisputed among professional conflict mediators, because it removes the separation between procedural support and decision-making and calls the mediator’s neutrality into question. Besides, it is feared that the opponents may be less prepared to make information necessary to the resolution of the conflict available but may instead - if they believe that in the end the mediator will be asked to make a decision after all - introduce extreme or exaggerated arguments. Mediation - then arbitration is similar to mediation arbitration, except that two persons undertake to assist the opposing parties. At first, a mediator works with the parties to the conflict, and only when they are unable to reach agreement is the procedure passed on to a different third party - an arbitrator - in order to reach a binding decision. This procedure thus responds to several of the crucial points of mediation-arbitration. In "disputes panels", the binding decision of a group of independent and impartial persons is sought. The manner of selecting these persons may vary. One possibility is that the parties to the conflict receive a list of potential candidates from a respected organization that customarily makes impartial persons available. The parties to the conflict first agree to the number of panel members and then draw up the list together. The case is then brought before the panel, which first consults and then reaches a decision.

8

Annex 4

Formulation of issues in conflict analysis

I.

Parties

1. 2. 3. 4.

Which are the most important parties and who are their spokespersons? Have interested parties unfavorably affected by the decision already formed an initiative or group? Are the parties willing to try for a consensual resolution of the conflict? Are the parties in a position to work together?

II.

Conflict issue

5. 6. 7. 8. 9. 10. 11. 12. 13.

What aspects of the conflict characterize it? Is it a matter of different interests or differing values? How may the problems best be defined? What are the central conflict issues? What are the second most important conflict issues? Are these issues negotiable? What are the true central interests of each party? What interests do the parties share? What negotiating positions have the parties assumed? What options are there for resolving the conflict?

III.

Procedures

14. 15. 16.

How do the parties feel about using consensual conflict resolution procedures? Will a consensual process be of use to the parties? Which structural constraints will influence resolution of the conflict (time frame, legal activities, financial resources)? Which obstacles must be overcome by the procedure? Are any of the parties experienced in consensual conflict resolution? What chances does the procedure have for success?

17. 18. 19.

9

Annex 5

Varieties of advisory roles •

The bulk of responsibility for the overall program - i.e., for substantive inputs, process planning and management and for attaining the objective and results - lies in the hands of the initiator, that is, the external advisors. When the partner desires this form for a policy planning project in the environment, conditions should be reviewed with particular care. Basically this form does not meet criteria for sustainability, because it bespeaks limited readiness on the part of the partner to assume program "ownership".

•

The promoter represents a form of advising characterized by a relatively high degree of intervention without, however, assumption of a line function. The promoter provides substantive inputs and proposes decisions and initiatives related to process planning and management.

•

Coaching is the classic role of the advisor who advises and trains the partner on every kind of professional and methodological question without, however, assuming a line function. This form, too, is typified by relatively high advisory intensity and demands a thorough clarification of roles and expectations to prevent "backsliding" into other forms of advising.

•

Facilitating23 or process advising is for the most part restricted to conveying selected know-how. Otherwise facilitators function essentially as advisors for planning, coordination, communication and decision-making processes among the participants. They assume responsibility for the flow and quality of decision-making processes, but not, however, for their results. In this role, the facilitator becomes an even stronger element of the learning process than in the role just described.

• The loosest form of advising is to be found in the role of the sponsor, who provides mainly financial support for processes based on agreed-upon objectives without interfering in their design and evolution. In this case, the responsibility for objectives and attainment of results lies exclusively with the partners in cooperation. The classic roles indicated here cannot be strictly separated from one another but must be viewed on a continuum. Nevertheless, distinguishing among them can be helpful in defining responsibility. The more indirect and loose the role of the advisor is, the more the presence of an external on-site advisor is called into question. The following types of advising are to be distinguished: • long-term advisory services by experts who are on site during the entire project duration • intermittent advisory services, in which if possible the same persons return to the site on a recurring basis over an extended period of time • short-term advising, that is, the selective assignment of short-term experts for clearlydefined and restricted tasks. A decision must be taken on the extent to which advisor presence is required based on the agreed role and responsibility of the external advisors and the scope and variety of their tasks.

23

Facilitation in the sense used here is not identical with the duties of a facilitator in the scope of facilitation as a CM procedure (see Annex 3, CM procedures). External consultants are advised not to assume the role of facilitator in a CM procedure.

10

Division 402: Publications to date As of July 1997 Publication-No.

Titel

Order-No.

Ökonomische Instrumente der Umweltpolitik: Bedeutung für die Entwicklung von umweltrelevanten Institutionen im Rahmen der praktischen EZ

P3-001-d

Institutionenentwicklung im Umweltbereich - Ergebnisse eines GTZ-Mitarbeiter-Workshops

P3-002-d

402/94 - 3 d PVI

Ökonomische Instrumente der Umweltpolitik als Beratungsfeld im Rahmen der TZ - Systematische Kurzdarstellung der in der Bundesrepublik Deutschland angewandten Instrumente und relevanter Institutionen

P3-003-d

402/94 - 4 d PVI

Der Runde Tisch als Programm? Möglichkeiten und Grenzen der Institutionenförderung im Spannungsfeld von Umwelt und Entwicklung

P3-004-d

402/94 - 4 e PVI

The round table as a Programme? Institutional Development caught between the Environment and Development - Options and Limitations

P3-004-e

402/94 - 5 e PVI

Pollution Prevention Through Market-Based Incentives Two Case Studies on Thailand

P3-005-e

402/94 - 6 e PVI

The Use of Economic Instruments in the Environmental Policy of Chile

P3-006-e

402/94 - 7 e PVI

The Role of Land Tenure and Property Rights in Sustainable Resource Use: The Case of Benin

P3-007-e

402/94 - 7 f PVI

Le rôle des systèmes fonciers et des droits de disposition pour la gestion durable des ressources naturelles: Le cas du Bénin

P3-007-f

402/94 - 8 d RMSH

Dokumentation zum Consulting Workshop - Anwendung von Beteiligungs- und Selbsthilfeansätzen in Vorhaben zum Ressourcenmanagement

P3-008-d

402/94 - 9 d PVI

Information, Bildung und Kommunikation im Umweltbereich

P3-009-d

402/94 - 10 d RMSH

Hinweise auf Schlüsseldokumente für die Anwendung von Beteiligungs- und Selbsthilfeansätzen im Ressourcenmanagement

P3-010-d

402/93 - 1 d PVI

402/93 - 2 d PVI

out of print

out of print

out of print

out of print

402/94 - 11 d RMSH

Beteiligungs- und Selbsthilfeansätze im Ressourcenmanagement - P3-011-d Ein Positionspapier

402/94 - 11 e RMSH

Participatory and self-help approaches in natural resource management - A position paper

P3-011-e

402/95 - 11 f RMSH

Participation et auto-promotion dans la gestion des ressources naturelles - Document de base

P3-011-f

402/95 - 11 s RMSH

Participación y auto-ayuda en el manejo de recursos naturales Documento básico

P3-011-s

11

402/95 - 12 d PVI

Marktwirtschaftliche Instrumente der Umweltpolitik in Entwicklungs- P3-012-d ländern - Beiträge zur Institutionenentwicklung und Politikberatung im Umweltbereich

402/95 - 12 e PVI

Market-Based Instruments in Environmental Policy in Developing Countries - Framework for Policy Planning and Institutional Development in the Environment

P3-012-e

402/95 - 12 f PVI

Instruments économiques applicables aux politiques de l’environne-ment dans les pays en développement - Contributions au développe-ment institutionnel et à l’assistance technique en matière de politique de l’environnement

P3-012-f

402/95 - 12 s PVI

Instrumentos económicos y política ambiental en los paises en desarrollo - Desarrollo institucional y asesoramiento politico en materia de protección ambiental

P3-012-s

402/95 - 13 d RMSH

Die Rolle von Anreizen bei der Anwendung von RMSH als P3-013-d Vorgehensweise

402/95 - 13 e RMSH

Incentives and the NARMS Approach - A hand-out for project desk officers, consultants and onside project staff

P3-013-e

402/95 - 13 f RMSH

Le rôle des mesures d'incitation dans l'application de la stratégie GERNAP - Outil de travail à l’intention des chargés de projets, des consultants et des collaborateurs de projet

P3-013-f

402/95 - 13 s AMREN El papel de los incentivos en la aplicación del enfoque AMREN Folleto de información para encargados de proyectos, consultores y colaboradores de proyectos

P3-013-s

402/95 - 14 d PVI

Umweltinformation und ihr Management

P3-014-d

402/95 - 14 e PVI

Environmental information and its management

P3-014-e

402/95 - 15 d Biodiv

Biologische Vielfalt erhalten! Eine Aufgabe der Entwicklungszusammenarbeit

P3-015-d

402/95 - 16 d

Lösungsansätze für den technischen Umweltschutz in kleinen und mittleren Unternehmen in Entwicklungsländern

P3-016-d

402/96 - 16 e

Approaches to cleaner production in small and medium-sized enterprises

P3-016-e

402/95 - 17 d PVI

Mediation / Konfliktmanagement im Umweltbereich und seine Bedeutung im Rahmen der TZ Dokumentation eines Fachgesprächs in der GTZ

P3-017-d

402/95 - 18 e RMSH

Creating Local Agendas (A) Participatory Appraisal Methods for Interinstitutional collaboration in Integrated Watershed Management - Lessons from a Colombian Experience (B) Participatory Planning and Evaluation Methods: Suggestions for complementary methodologies

P3-018-e

402/96 - 19 d PVI

Konfliktmanagement im Umweltbereich Instrument der Umweltpolitik in Entwicklungsländern

P3-019-d

402/96 - 19 e PVI

Environmental Conflict Management An environmental policy instrument in developing countries

P3-019-e

12

out of print

out of print

402/96 - 19 f PVI

La gestion des conflits dans le domaine de l’environnement Instrument de la politique de l’environnement dans les pays en développement

P3-019-f

402/96 - 19 s PVI

Manejo de conflictos en el área de medio ambiente - Instrumento de política ambiental en los países en desarrollo

P3-019-s

402/96 - 20 e

Environmental Protection in Small and Medium Enterprises in Developing Countries - Proceedings of the GTZ-workshop

P3-020-e

402/96 - 21 d PVI

Methodenkompaß - Eine praktische Orientierungshilfe für Planungs- und Managementaufgaben im Umweltbereich

P3-021-d

402/96 - 22 d RMSH

Prozeßmonitoring - Eine Arbeitshilfe für Projektmitarbeiter/-innen

P3-022-d

402/96 - 22 e RMSH

Process Monitoring (ProM) - Work Document for project staff

P3-022-e

402/96 - 22 f RMSH

Suivi des processus - Un outil de travail pour des collaborateurs de P3-022-f projet

402/96 - 22 s RMSH

Seguimiento de procesos - Una auyuda para personal de proyectos

P3-022-s

402/96 - 23 d PVI

Indikatoren der Institutionenentwicklung im Umweltbereich Anregungen und Beispiele für Projektplanung und -management

P3-023-d

402/96 - PVI

Umweltprojekte durch Kommunikation verbessern

P3-901-d

402/96 - PVI

Erfahrungen und Ansätze der TZ bei der Unterstützung von Umweltaktionsplänen - Dokumentation eines Erfahrungsaustausches in der GTZ

P3-902-d

402/96 - RMSH

Prozeßbegleitende Beratung Eine Arbeitshilfe für Berater/-innen im Ressourcenmanagement

P3-903-d

402/96 - RMSH

P3-903-e

402/96 - RMSH

In Process Consultancy A Work Document for Consultants to Natural Resource Management Projects Consultation interne

P3-903-f

402/96 - RMSH

Asesoramiento a procesos

P3-903-s

402/96 - RMSH

Toward decentralised Natural Resource Management Case study: The village of Balingnar in Burkina Faso

P3-904-e

402/96 - PVI

Vers une Gestion Decentralisee des Ressources Naturelles Cas du village de Balingnar au Burkina Faso

P3-904-f

402/96 - PVI

Umweltkommunikation in der TZ Dokumentation eines Fachgespräches in der GTZ

P3-905-d

402/96 - PVI

Bibliographie Umweltkommunikation

P3-906-d

13

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