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1
Verne C. Huser2
Abstract--Drawing upon a decade of experience in the use of third-party intervenors to help settle riparian ecosystem management conflicts, this paper will suggest a number of lessons for addressing conflict, for designing forums to enable disputing parties to negotiate and for reaching meaningful, realistic implementable decisions.
The first settlement of a riparian ecosystem management dispute reached through negotiation with the assistance of a third-party intervenor
(mediator) occurred in 1974 -- just over ten years ago -- in the State of Washington. 3 That agreement, known as the Snohomish Basin Mediated
Agreement, withstood the transition from the administration of Governor Dan Evans to that of
Dixie Lee Ray to that of John Spellman. It was endorsed by two counties, more than a dozen communities and an Indian tribe, none of whom were at the negotiating table, and i t lasted for ten years, falling apart during the past year for a variety of reasons.
My point here is that the Snohomish Basin
Mediated Agreement started something, a major new concept that has swept the nation during the past decade, a new forum for dealing with natural resource disputes, an old concept -- mediation -applied to a new field -- environmental controversy.
I often say that environmental mediation is a concept that has been over-sold and under-utilized.
By that I mean that a multitude of sins have been committed in the name of environmental mediation.
Ill-defined by some practitioners and badly used by others, environmental mediation is no panacea though it has frequently been sold as a cure-all.
At the same time the concept of negotiated settlements of environmental disputes with the assistance of a mediator have been applied in far fewer disputes than i t might have been, disputes
1
Paper presented at the First North American
Riparian Conference, Riparian Ecosystems and Their
Management: Reconciling Conflicting Uses, Tucson,
Arizona, April 16-18, 1985.
2verne C. Huser is Program Associate, Western
Netword, Santa Fe, New Mexico.
3McCarthy, Jane and Alice Shorett, "Mediation to Resolve Environmental Conflict: The Snohomish
Experiment;'Journal of Soil and Water Conservation,
September-October 1976, Vol.n,No-:-s. in which i t might have been useful; it has not been used because of bureaucratic neanderthalism or misunderstanding of the concept or the desire by parties to fight it out rather than seek settlement.
In her book Resolving Environmental Disputes:
A Decade of Experience scheduled for publication this spring, Gail Bingham of The Conservation
Foundation has researched 162 environmental disputes in which the parties have met "face to face, with the assistance of a mediator, to reach a mutuallK acceptable resolution of the issues in dispute."
Sixteen of them (10%) were water resource issues
(water supply, water quality, flood protection, the thermal effect of power plants). Another 29
(17%) were natural resource management/use of public land issues (fisheries resources, mining, timber management, wilderness areas) that in many cases affected riparian ecosystems. In other words, a number of riparian Ecosystems management disputes have been dealt with through mediation, many of them settled to the satisfaction of the primary parties, and a few of them even implemented.
A mediator is someone who helps parties negotiate. The mediator is a process expert who has no power to impose a settlement but who merely works jointly with all parties to help them find a solution to their problem. The mediator does not solve the problem; the parties do. An agreement is reached with the parties themselves reach an accommodation they can all live with -- and that they believe they can sell to their constituents and get implemented, that is economically feasible, technologically possible, environmentally sound and politically saleable.
The first decade of environmental mediation has seen conceots emerge and techniques refined.
4 Bingham, Gail, "Resolving Eavironmental
Disputes: A Decade of Experience, Executive
Summary", The Conservation Foundation, 1984.
439

The process of applying mediation methods to natural resource disputes has matured through more and more frequent application. us look at some case studies.
Bingham's studydetermined that 78% of the mediation efforts led to agreements. What we have learned from that decade of experience is the subject of this paper. Let
SNOHOMISH BASIN MEDIATED AGREEMENT
State of Washington
A team of two mediators -- Gerald W. Cormick and Jane McCarthy -- facilitated the deliberations between a variety of interests -- farmers, developers, environmentalists, outdoor recreationists
-- at odds about a proposed dam on the Middle Fork of the Snoqualmie River, a long-term and frequentlyheated dispute that essentially centered around flood control and development potential for a river valley. The dispute was settled when the parties agreed to a smaller dam on a different tributary, some flood-plain and land-use planning proposals and the creation of a basin-wide coordinating council.s lifestyles of five bands of Native Peoples who depended on the waterways for transportation, hunting and fishing and traditional values. The
Canadian federal government provided a mediator who won the trust of the tribes and over a two-year period helped the parties -- five bands of Indians,
Manitoba Hydro (a Crown Corporation), the Manitoba provincial government and the Canadian federal government -- reach an agreement (1977) that involved land exchanges, land grants, navigation regulations and a number of other issues dear to the heart and soul -- and livelihood -- of the disrupted people.
Lessons Learned? to all parties.
One of the big questions this mediation effort raised is. the independence of the mediator, since he was paid by the federal government, one of the parties. However, the federal government was essentially picking up the tab for much of the settlement, the mediator appointed by the government was t.rusted by all the parties, and the federal government served as aegis for the entire process that seemed to be acceptable
The dam was never built (though a similar one nearby is currently being considered and is creating a whole new range of opponents). Ultimately the funding for the Basin Coordinating Committee, which functioned for nearly a decade, dried up. However, many of the features of the mediated agreement were in place and practice, and the parties to the original agreement remain supportive of the concept and the process.
Lessons Learned? This was the very first attempt to apply the principles of mediation to a natural resource dispute. The pattern established in this effort became the modus operandi in the field: explore the disput~determine if it is appropriate for negotiation, which parties need to be involved, what issues need to be addressed, what implementation steps need to be anticipated; design a process that is specific to the dispute, find an appropriate aegis to legitimize the concerns and give credibility to the process, develop meaningful deadlines so the parties will make decisions; deal with a whole range of sensitive personal and political issues, create some kind of ongoing relationship among the parties to address implementation problems as they inevitably emerge.
Each new mediation effort tested these principles and added to them. people~
PATUXENT RIVER AGREEMENT
State of Maryland
A decade-long dispute over how to manage the water quality of Maryland's Patuxent River was settled in 1981 with the help of environmental mediators.7 The parties were brought to the table by legal action initiated by a coalition of scientists, watermen, and county officials who challenged upstream dischargers. A group of 43 river users, policymakers, scientists and concerned citizens reached agreement on protective measures, flood control and minimum flow guarantees. By some standards the mediators did everything wrong -- too many people, too little preliminary work with the too short a time frame, too many complex issues -- but it worked.
Lessons Learned? Perhaps the ground rules for the effort would be instructive:
• Decision will be made by consensus
• No statements made to be used in future judicial or administrative proceedings
• Personal attacks or prejudicial statements will not be condoned
• Conclusions and recommendations will be based on information currently available
• Proceedings will not be electrically recorded
• No contact with the press during negotiations
LAKE WINNIPEG REGULATION AND CHURCHILL RIVER
DIVERSON PROJECT
Manitoba, Canada6
A major hydroelectric project in northern
Manitoba developed during the 1970's disrupted the
As in serious labor-management negotiations or international negotiations such as the continuing arms negotiation in Geneva, the Press is not part of the deliberations. The deliberations are not recorded nor can anything said at the negotiating table be held against the parties in another forum.
Decisions are normally made by consensus: this is not a hard and fast rule in all mediation, but it
SMcCarthy, op. cit.
6Agreement between the Government of Manitoba and Canada, the Manitoba Hydro Electric Board and the Northern Flood Committee, dated December 16, 1977.
7schneider, Peter and Andy Sack, "Patuxent River
Clean-Up Agreement", The Environmental Forum, May 1983.
440

is frequently insisted upon as the parties design the process that will work best for them in their particular situation. Further, the deliberations are based on factual information available.
Philosophical and emotional issues have little place at the negotiating table. You don't negotiate your values.
CREST AGREEMENT
State of Oregon
A major dispute in the Columbia River estuary was settled in 1981 through the use of mediation.8
In a bi-state planning process that spanned seven years, a conflict-resolution process designed by the parties with the advice of environmental mediation professionals was used to settle 23 of
28 site-specific disputes. The final five dispute areas, all on the Oregon side of the estuary where a strict land-use planning policy was in effect, were mediated in an open process that involved four federal agencies, four state agencies and four local jurisdictions.
This one was mediated in the press: a reporter from the local daily newspaper attended all negotiating sessions, and because of Oregon's open meeting law was even able to gain access to caucuses. An agreement was reached that became part of local comprehensive plans approved by
Oregon's Department of Land Conservation and
Development. The Port of Astoria has been using the Agreement as a marketing tool. The Corps of
Engineers has been using it as a "guideline" for issuing permits. Environmentalists not at the table feel their concerns were represented by the resource agencies at the table and seem satisfied with the results.
Lessons Learned? If all the parties with an interest in the outcome are somehow represented in the process -- directly or indirectly -- it has a better chance of implementation. If the participants understand the process, in fact help design it themselves, and if that process is designed specifically for the dispute at hand, it is more likely to result in an agreement.
With the assistance of an environmental dispute professional, whom one of the parties resisted calling a mediator, the parties reach an agreement, and signed a motion for order of dismissal of the legal action, which was accepted by the federal judge in charge of the case. Incorporated in the order of final judgement is an affidavit from the
Massachusetts Department of Environmental Management which states that other state forest and park land resources are protected from depletion by future municipal water supply projects since mitigating land and/or money compensation will be sought in each instance.
Lessons Learned? An independent third-party dispute-resolution professional by any other name would smell as sweet. It matters not that the person who helps parties negotiate be called a mediator. Facilitator will serve as well. It doesn't matter what you call it if it works!
A trio of disputes in New England over riparian habitat management issues were settle9 through mediation. The Upper Androscoggin River in New Hampshire was impacted by the Pontook
Project, but agreements were reached on minimal flows for whitewater recreation and fishery enhancement. A small hydro project at the outlet of Swan
Lake that affects reservoir levels and flows in the Goose River near Belfast, Maine, was opposed by lake-side residents until an accommodation was reached through mediation. Aesthetic considerations at a waterfall that would be impacted by a hydro project on Otter Creek near Middlebury, Vermont, were addressed through mediation.
Lessons Learned? No matter how small or local the dispute, mediation can serve to settle the dispute if the parties are willing and there is enough flexibility on the part of the powers that be.
OTHER NEW ENGLAND RIPARIAN DISPUTEslO
WASHINGTON MOUNTAIN BROOK AGREEMENT
State of Massachusetts9
A dam project in western Massachusetts involving a 19-year evolution from flood control and soil conservation justification to providing municipal water supply led to legal challenges.
The protection of a surface water supply system and the taking of state park and forest lands became issues as did the possible contamination of ground water aquifers by pollution occurring along the Housatonic River.
PLATTE RIVER DISPUTE
State of Nebraskall
In a long-standing dispute over competing plans for allocating water for the Platte River in Nebraska, a mediator helped The National
Wildlife Federation, several state natural resource districts, and other interested parties including the Whooping Crane Heritage Trust develop a sensitive skeletal frameword for settlement. Four days of negotiation in late November (1983) initiated a series of constructive talks, the first in years of legal battles and administrative appeals.
In March 1984 the parties reached an agreement in principle providing for a moratorium on litigation and hearings for several years to allow
8Gusman, Sam and Verne Huser, "Mediation in the Estuary", Coastal Zone Management Journal,
Vol. 11, No. 4, pp. 273-295.
9Interview with Ty Tice of The Mediation
Institute, Seattle, Washington. lOinterview with David O'Conner of the New
Englan~ Environmental Mediation Center, Boston, MA.
1 Interview with Ed Krinsky, Director, Regional
Office, The Mediation Institute, Madison, Wisconsin.
441

for feasibility studies, data gathering, and consensus building and to set priorities for ways to allocate water rights should the date prove it to be feasible.
However, the Nebraska Water Resources
Department decided that certain issues had to be resolved through the courts, and the agreement was not implemented.
Lessons Learned? If any of the parties to a dispute want to set legal precedents, it is probably inappropriate for mediation/negotiation.
Perhaps another subtle lesson, mediation is not a substitute for politics. seem to be unanimous in their support of their initial recommendations.13
Lessons Learned? There needs to be a clear understanding of what will become of the product of such deliberations. All interests must be well represented in the deliberations and all considerations -- political, economic, technical
-- need to be addressed if implementable decisions are to be made through mediator-assisted negotiations. Political pressures and budget cuts can disrupt good-faith efforts to settle differences.
ROGUE RIVER AGREEMENT
State of Oregon
The "wild" segment of the Wild and Scenic
Rogue River in southwestern Oregon is managed jointly by the U. S. Forest Service (FS) and the
Bureau of Land Management (BLM). A management plan developed a decade ago which limited use to
120 person launches per day had worked well during the permit season (Memorial Day weekend through
Labor Day weekend), the heavy-use period. However, as use pressures increased, especially by private boaters, extremely high use was occurring after the control season, that is, after Labor Day: several hundred boaters were launching each weekend in September and early October, the heart of the traditional fishing season.
The post-permit-season use was out of line with management principles and guidelines. No one wanted more regulations, but something had to be done. The agencies jointly pulled together a working group composed of a representative of each agency and three representatives of private use groups and three of commercial use groups (summer scenic outfitters, fall fishing guides and lodge owners). They hired a mediator to facilitate the deliberations of the joint working group.
Agreement was reached on a series of recommendations, but even though the agencies were represented at the negotiating table and agency representatives had an opportunity to check back with their respective agencies between sessions, the agencies have indicated they are not pleased with the working group's recommendations, a fact that seems to substantiate the feelings of the group members that the process was an exercise in futility.12
The working group's recommendations were not implemented the fall of 1984. An interim volunteer system will be in effect the fall of 1985. There is the possibility of a series of public hearings on the subject should the agencies decide to make changes in policies or permit seasons, but at present the non-agency members of the working group
SUMMARY all
I do not intend to provide you with details of
45 cases of mediated settlement attempts in riparian ecosystem management disputes that Gail
Bingham uses in her book. These examples will serve to suggest that mediation, a term I have used generically in this paper to mean independent thirdparty intervenor-assisted settlements, has come into fairly common usage during the past decade.
More than a quarter of the case studies in Bingham's book deal with riparian ecosystem management disputes.
I do not suggest that mediation is a panacea.
It certainly is not nor can it ever be a sure cure for every dispute over riparian habitat issues, but used carefully by skilled professionals in appropriate circumstances, it can be effective in helping parties find agreement in some very complex often multi-party disputes.
People seek settlement when there is enough uncertainty for all parties to make it worth the effort to negotiate, when the status quo is intolerable to all parties and existing forums are not working effectively, when a relative balance of power among the parties exists and all parties are willing to seek a workable solution -- but only if there is enough flexibility within the decisionmaking system to allow for creative solutions.
I do not mean to suggest that mediation should be used in all or even a majority of disputes, but it does enable the parties to control the decisionmaking process, to make better use of technical experts, to plan more effectively and to reduce uncertainties. It can be useful in keeping future options open and in improving the psychological climate by helping people learn to work together more effectively.
Mediation can help people make better decisions that are implementable. Decisions that are continually challenged through administrative appeals processes or in court or in the legislature are not good decisions. They cost time and money and people's positions and agencies' prestige.
The best reason to try mediation is ultimately to improve your bottom line.
12Interview with Don Stevens of Grants Pass,
Oregon, a member of the working group.
13
Ibid.
442