INTERNATIONAL JOURNAL OF ORGANIZATION THEORY AND
BEHAVIOR, 8 (3), 396-424
FALL 2005
EXAMINING BARRIERS TO NEGOTIATED
ENVIRONMENTAL AGREEMENTS
Catherine A. Ramus and Alfred A. Marcus*
ABSTRACT. We bring together disparate negotiation theory research in order
to identify a composite set of potential barriers to reaching agreement in
environmental negotiations. This framework builds on behavioral decision
theory, showing barriers that arise from personal values and institutional values
and norms, as well as from situational elements that influence individual
behaviors and organizational strategies. We contribute to the literature on
organizational behavior by making explicit the relationship between the strength
of the situation and organizational behavior related to negotiations. The
elements of situational strength have not been addressed adequately in prior
negotiation literature. We incorporate this concept into a comprehensive set of
barriers to offer explanations for the intractability of many environmental
disputes.
INTRODUCTION
Environmental regulatory negotiations are prevalent; government
agencies often negotiate with companies, community groups, trade
associations, and other stakeholders over a myriad of environmental
issues ranging from rulemaking to voluntary agreements. In many cases
environmental regulatory negotiations are very complex; they typically
include multiple stakeholders and feature intricate technical issues and
politically charged debates (Ramus, 2003). Indeed, many of the issues in
-----------------------* Catherine A. Ramus, Ph.D., is Assistant Professor, Donald Bren School of
Environmental Science and Management, University of California, Santa
Barbara. She studies organizational factors that influence socially and
environmentally sustainable business practices. Alfred Marcus, Ph.D., is a
Professor, Carlson School of Management, University of Minnesota. His
teaching and research interests are in strategy and public policy as it affects
businesss.
RAMUS & MARCUS
Copyright © 2005 by PrAcademics Press
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dispute are nearly intractable, with one or more parties being unwilling
(or unable) to compromise because of the ideological importance of the
issue. Not surprisingly, therefore, many environmental negotiations end
in stalemate (Burkardt, Lamb & Taylor, 1998).
In this paper we define environmental negotiations as “conflicts in
which one or more parties represent” or claim to represent “the interests
of the environment” (Wade-Benzoni et al., 2002, p. 42). We seek to
identify the factors that influence the outcomes of environmental
regulatory negotiations that range from two-party environmental
permitting or enforcement negotiations to more complex multiple-party
and multiple-issue negotiations such as superfund cleanup, the licensing
of hydropower projects, energy development in pristine natural areas, or
the harvesting of timber in old growth forests.
A Description of Environmental Negotiations
The nature of environmental negotiations is quite different from what
many might traditionally imagine when thinking about a negotiation
situation. Seldom are environmental negotiations bilateral monopoly
problems where two parties bargain to reach an agreement over a single
issue, like price. Environmental negotiations tend to be more complex
for a number of reasons. Environmental negotiations often involve
multiple interested parties (governments, multinational corporations,
civil society organizations, etc.). The media and public often are
watching and reacting to progress and outcomes, with stakeholders often
waiting to see if progress is being made before getting involved, which
can add to the complexity since those at the table never know when a
different part of the public will weigh in on the discussion. Moreover,
environmental negotiations are often more values-based than fact-based,
with issues relating to ideology or ‘rights” in environmental disputes. In
environmental negotiations there is often a disparity in power between
the parties that is compensated for by coalition formation. Finally, in
environmental negotiations there can be long time horizons, with parties
returning to fight over the issues again and again. The inherent conflicts
may never be settled. Each negotiation just resets the rules for
subsequent negotiations.
Furthermore, at their most complex environmental negotiations are
very different from labor union disputes, one of the most studied types of
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negotiations. Unlike labor disputes which generally involve two clearly
identified interests that are roughly equal in stature (O’Leary, Durant,
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Fiorino & Weiland, 1999), conflict about environmental issues often
involves multiple groups of stakeholders with different levels of power
(e.g., local, state and national governments, local and national
environmental groups, major corporations, and local citizens). And,
unlike labor disputes where the issues are generally concrete and
quantifiable (i.e., pay and benefits), environmental disputes often involve
ideologically-charged and difficult to quantify issues such as species
diversity versus economic growth, or preserving natural resources for
future generations versus prosperity for this generation, for example. As
such, the issues involved in environmental negotiations are difficult to
trade off with each other. Finally, labor disputes have a highly
institutionalized process with a long history that is routinely used for the
resolution of differences, whereas environmental dispute resolution has
no such single “tried and true” procedural blueprint upon which
disputants can ground their discussions. For all these reasons we argue
that environmental negotiations are more difficult to resolve than most
labor negotiations and that as researchers we must probe more deeply
into organizational and negotiation theory to understand their dynamics.
Intractability of Environmental Negotiations
Many environmental disputes are complex and resist settlement.
These disputes have been called “intractable” (Campbell, 2003). But it is
the settlement of just such disputes that is likely to yield the largest
rewards. Other than negotiation, there are likely to be few other ways to
overcome the impasses that arise from these disputes. Why are such
disputes mired in deadlock? Why are they so difficult to resolve? Realworld experience in creating workable agreements remains limited
(Bacow & Wheeler, 1984; Breyer, 1993; Howard, 1994; Osborne &
Gabler, 1993; Sexton, Marcus, Easter & Burkhardt, 1999). According to
O’Leary (1995), work based on empirical evidence on environmental
negotiation is rare, the research foundations of the literature in this area
are weak, and much of what we claim to know is based on speculation.
Additional research and analysis is necessary to determine what works,
what does not, and why.
Evidence of problems in and solutions to resolving environmental
disputes comes from an analysis of the reasonably successful Alternative
Dispute Resolution (ADR) process. ADR is meant to resolve disputes
more expeditiously and with less cost than a more confrontational
regulatory approach (O’Leary & Bingham, 2003). This technique
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involves some form of consensus building, joint problem solving, and
negotiation of conditions of compliance. The parties in the ADR process
have direct face-to-face interaction, and they reach decisions by mutual
agreement. They jointly explore and resolve their differences with the
assistance of a third-party mediator or facilitator, who in most cases has
no formal authority to impose an outcome on the parties. The various
parties in ADR processes are free to withdraw and seek resolution
through other means at any time. Bingham, in a 1986 study, assessed the
effectiveness of ADR. She examined 132 cases; three out of four of the
cases involved site-specific issues, and one in four involved broad policy
issues. Bingham reported that agreement had been reached in a high
percentage of the cases she examined — 79% of the site-specific cases
and 76% of the policy issues — and that 80% of the site-specific cases
and 41% of the policy cases featured solutions that were fully
implemented.
However, the main reasons for the high rate of success in the
examined cases had to do with the pre-screening of the disputes.
Facilitators only selected cases that met criteria they believed were
necessary for a positive outcome. These pre-screening criteria included:
number and types of parties, authority of parties to the negotiation to
make decisions, the presence of incentives to reach agreement,
agreement of parties regarding facts and scope of issues, clear deadlines,
clarity/ agreement over procedural steps, ability of negotiation to satisfy
each party’s interests, and whether the dispute was already in litigation.
These criteria provide us with clues as to what makes some disputes
nearly intractable. Intractable disputes would tend to have:
- Several parties that have been vociferous opponents for considerable
periods,
- Few incentives to agree,
- Lack of consensus about the facts and scope of the issues,
- Unclear deadlines,
- Uncertainty about procedures,
- The inability of the parties to satisfy each other’s underlying
interests, and
- Ongoing litigation, which stands in the way of settlement.
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Understanding the Barriers, Including Situational Strength
In this paper we help to coalesce this thinking with the purpose to
provide a better understanding of the complete set of barriers that may
prevent participants of a complex environmental negotiation from
reaching an agreement. We draw on Raiffa’s (1982) traditional decision
theory work and related research (Bazerman, 1998; Bazerman & Neale,
1992; Neale & Bazerman, 1991; Thompson, 1990, 1998; Wade-Benzoni
et al., 2002) that questions whether the behavioral decision theory
underlying Raiffa’s approach can fully explain failures in ideologicallybased disputes involving intractable or nearly intractable societal issues
in areas such as the environment. Accordingly, we include factors such
as individual values and various social institutions that influence
ideologically-based negotiations.
In addition, we are interested in the impact of a set of situational
factors that are missing from the general negotiation literature, namely
factors related to the strength of the situation (Mischel, 1968; 1973).
Bazerman, Curhan, and Moore (2000) have asserted that situational
factors are often more important than dispositional variables in
determining variance in individual negotiators’ behaviors. Prior research
on negotiation processes has focused on the impact of a variety of
situational factors on negotiations; for example, structural power
differences, the history of the relationship between parties, the
involvement of third parties, etc. have been the subject of research
(Boardman & Horowitz, 1994; Marwell, Ratcliff, & Schmitt, 1969; Pruitt
& Johnson, 1972). Nevertheless, situational strength has been rarely
discussed in the negotiation literature despite the fact that it can influence
individual and organization perception and feature cognitions concerning
the context of the dispute, such as clarity of the legal mandate, the
certainty of deadlines, the clarity of one’s own and the other parties’
goals, the certainty of negotiation procedures, and the certainty that the
negotiated outcome will satisfy the interests of each of the parties.
We go back to an important literature about situation strength that we
believe can be usefully applied to environmental negotiations. Mischel
(1968; 1973; see also Shamir, 1991) showed the effect of situational
strength on individual behavior. Situations that are characterized by
clear goals, well-recognized rules of conduct, availability of rewards, and
a strong rewards-performance relationship are “strong” ones. They tend
to produce uniformity in behavior. “Weak” situations, in contrast,
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feature unclear goals, ambiguous rules of conduct, uncertain availability
of rewards (desirable outcomes), and an imprecise link between
performance and desired outcomes. “Weak” situations produce more
variance in behavior. We maintain that if there is uncertainty around key
situational aspects – uncertainty around legal mandate, deadlines,
stakeholder goals, procedural steps, and desired outcomes — that the
negotiations will be more intractable because there will be greater
variance in the behaviors of the individuals and the organizations
involved. These types of uncertainty increase the chances for stalemate.
They interact with factors mentioned in the literature to build resistance
to resolution. For example, where greater uncertainty exists with regards
to the legal mandate (a weaker situation), we would expect greater
variance in negotiator behavior resulting in turn in greater difficulty in
coming to terms. On the other hand, where the legal mandate is clear (a
stronger situation), we would expect greater uniformity in negotiator
behavior and greater ease in avoiding deadlock.
The strength of a situation affects an organization’s strategy as well
as individual behaviors. Weick (1996) argued that there were reciprocal
influences between the two, and our argument is that the situational
strength affects both. While Mischel (1968) explained that there are
mechanisms whereby individual behavior is affected by the strength of
the situation, the key mechanism at the organizational level for forming
collective views of external stimuli is culture according to Schein (1985).
It is clear that the strength of the situation can affect both collective and
individual behavior. The weaker the situational strength, the more varied
we would expect to find organizational strategies, and the more varied
the behavior of individuals. We will argue below that most
environmental negotiations are weak situations, which leads to a greater
difficulty to find mutually-agreeable resolutions.
Table 1 shows which aspects of decision theory analysis are
particularly salient when analyzing environmental negotiations (number
and nature of the parties, number and nature of the issues, 3rd party
intervention, and history/power parties), and which factors need to
supplement this framework to make it more complete — values (selfenhancement, self-identity, and self-perception), and organizational/
institutional factors (regulative, normative, and cognitive). To these we
add factors related to situational strength, elements which have been
missing in the previous literature.
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TABLE 1
Barriers to Reaching Agreement in Environmental Negotiations
Factors Related to Values
Issues related to core values (valuation of life, right to pollute, value of
species diversity, etc.)
Easier not to act (e.g., putting a firm out of business today vs. protecting
future generations)
Regulative, normative and/or cognitive barriers due to pre-existing
institutional norms and values
Factors Affecting Certainty
Potential for third-party intervention
Different opinions related to scientific or technical information
Lack of clarity of legal mandate
Uncertainty around deadline for reaching agreement
Uncertainty around procedures that will be followed by lead organization
Uncertainty of organizational goals for negotiation
Uncertainty that negotiated outcome will lead to desired outcome
Factors Affecting Complexity
Number and nature of parties (More than two parties)
Number and nature of issues (More than two issues)
History and relationship of parties (Long standing tensions between
organizations)
Perceived imbalance in power between the parties
Multiple levels of negotiation:
Across the table with other negotiating teams;
Between negotiations team members;
Between different parts of the organization;
Between the organization and the public
Our contribution here is two-fold. We first bring together multiple
conflict resolution/negotiation theories into a single, composite whole;
then we add a new set of factors, which we call situational strength, to
the analysis of the multiparty negotiation process. In so doing we hope to
catalyze thinking of both researchers and practitioners as to the range of
key variables that influence outcomes.
FRAMEWORK FOR ANALYZING ENVIRONMENTAL
NEGOTIATIONS
EXAMINING BARRIERS TO NEGOTIATED ENVIRONMENTAL
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To achieve our purpose of developing a complete set of explanatory
factors for the intractability of many environmental negotiations, we start
with Raiffa’s decision theory analysis presented in the Art and Science of
Negotiation (1982). Raiffa is very good at helping us understand the role
of additional parties, additional issues, time (deadlines), third-party
intervention, and history and relationships as they affect the dynamics of
particular negotiations, and hence allows for the systematic study of
factors that add to or reduce the complexity of a negotiation.
Number and Nature of Parties
An important factor in environmental negotiation, one that Raiffa
(1982) considered to be critical, is that typically more than two parties
are involved. The implication of more than two parties being involved is
that several negotiations are taking place simultaneously (Wood &
Colosi, 1996a; 1996b; 1996c; also see Putnam’s 1988 paper for a
discussion of the dynamics involved in two-level negotiations). The
basic situation most people envision when they think about a negotiation
is bargaining “across the table.” Individuals, representing the interests of
their respective organizations, try to find agreement on issues about
which there is contention. However, this basic situation masks a set of
social interactions that is more complex. In most cases, teams of
negotiators represent organizations, and the different team members
represent diverse organizational interests. According to Wood and
Colosi (1996a; 1996b; 1996c), as representatives of distinct
organizational factions the team rarely functions as a monolith. The
team is almost always divided internally. Members of the team are
almost always negotiating among themselves. Indeed, they may have
very different negotiating styles, making it hard for them to reach
agreement and arrive at a coherent and unified strategy. In most cases of
multi-party environmental negotiations a separate set of negotiations are
taking place between negotiating team members at the same time that
these teams are negotiating with their counterparts from other
organizations.
Another complicating factor is the level at which bargaining takes
place during a negotiation. In environmental and/or international
negotiations members of the public have an interest in the outcome, but
citizens are not formally involved (Raiffa, 1982; Schelling, 1978; 1980).
They may not have a seat at the table, but they care about the results.
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Different members of the public can make demands based on what they
find out about what is happening. Environmental negotiations are seldom
conducted entirely in secret, and all types of information may be leaked
— some intentionally and some inadvertently. The dissemination of this
information creates additional scrutiny of the process and added
pressures upon the negotiators which the parties to the negotiation have
to manage. For our purposes it is important to understand that the
multiple levels of negotiations that typically take place add complexity to
a situation that already is highly uncertain at the outset.
In sum, environmental negotiations typically are multi-party and
multi-level in nature, and these factors increase the complexity of the
negotiations. There is a vast difference in the difficulty of coming to an
agreement in a negotiation with three parties as compared to two (Raiffa,
1982). With each additional party that joins the negotiation, the
complexity of reaching agreement increases as groups and sub-groups
form around particular issues and additional bargaining takes place
making it more difficult to reach agreement.
In the case of
environmental negotiations, there are some examples of two-party
negotiations between an agency and one other organization (e.g.,
permitting, voluntary agreements, enforcement actions), but there are
also many more examples of negotiations where multiple stakeholders
become actively involved (e.g., federal regulatory rule-making, licensing
and relicensing hydropower projects, superfund cleanups) wherein the
prospects of agreement go down.
Number and Nature of Issue(s)
Another factor that adds to the difficulty of reaching agreement is the
number of issues on the negotiating table. On the face of it, it would
seem that the more issues present, the more complex the negotiations, the
more difficult it is to reach agreement. If the issues were highly
technical, as is often the case in environmental negotiations, it would
only add further to the difficulty. Different parties with different beliefs
regarding the “facts” — the scientific and technical realities being
debated — would have a hard time agreeing (O’Leary & Bingham, 2003;
Ramus, 2003). The added complexity can prevent the parties from
arriving at a solution, but the upside of having more than one issue on the
table and some degree of ambiguity in the issues being debated is the
potential it provides to satisfy all the parties. These factors can provide
more for the parties to work with in their effort to find joint gains.
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Joint gains can arise when different parties attach different values to
the issues present; in this way, the pie of benefits grows and it may be
possible to come to terms when an agreement was otherwise out of
reach. (See Lax and Sebenius [1986], and Walton and McKersie [1965]
for more on integrative bargaining). This type of complexity, therefore,
actually can be an ally in reaching a solution. Indeed, Marcus, Geffen
and Sexton (2002) found that in Project XL it was the relative
complexity of the Weyerhaeuser facility along the Flint River in Georgia
where diaper fluff was produced and there were myriad air, water, and
solid waste problems that made it easier to reach an agreement. One
environmental goal was played off against another, and the whole
package had something to offer all of the parties (Marcus, Geffen &
Sexton, 2002). But, the downside of such complexity is that it can
overwhelm negotiators who are not patient enough to manage the
complexity of the issues.
In summary, negotiations with more than one issue involved often
allow parties to make trades which increase the likelihood of agreement.
On the other hand, when many issues are involved, as is the case for
many environmental disputes, resolution of the dispute can become
increasingly difficult. Resolving such disputes requires negotiators to
have patience, and necessitates creativity and excellent problem solving
skills on the part of the negotiators.
Possibility of “Third” Party Intervention
If a trained, outside facilitator1 can be brought in (who is customarily
referred to as a “third-party,” even when there are more than two
disputants), the prospects for a settlement generally improve. Raiffa
(1982) holds that third party intervention can improve the chances for a
settlement in most circumstances. Indeed, one of the distinguishing
features of the successful XL negotiations that Marcus, Geffen and
Sexton (2002) described was the presence of a third party facilitator. A
third party facilitator played a role in EPA’s negotiating successful XL
agreements with Weyerhaeuser, Intel, and Merck; the unsuccessful 3M
negotiation, the one that Marcus, Geffen and Sexton (2002) analyzed that
ended in stalemate, did not involve an outside facilitator.
However, empirical studies show that third parties do not always
have this beneficial effect. In a fascinating analysis in which Leach and
Sabatier (2003) examined 50 randomly selected watershed partnerships
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in California and Washington between 1999 and 2001, they found that
there was a statistically significant negative relationship between the
direct involvement of a trained outside facilitator and the achievement of
a negotiated agreement. The trained, outside facilitator actually impeded
resolution of some of these conflicts. Leach and Sabatier (2003, p. 167)
commented that “despite their best intentions” the paid facilitators in
some cases evoked “feelings of resentment.” Their “professional
training in the arts of consensus building” in fact was “a detriment.” It
led the facilitators “to devote excessive amounts of time to getting the
process right,” and in so doing delayed the important substantive
negotiations that had to take place. When a third party is present, each
party to the negotiation has a new set of tactical options relating to how
much it should reveal to the third party about its interests and how
cooperative and how truthful it should be with the third party. The third
party may add to the complications rather than reduce them, and the end
result may be that the issues become harder to resolve. Thus, it is
difficult to predict with certainty whether facilitator involvement will
improve the chances of coming to a negotiated agreement in
environmental disputes.
History of the Relationship and the Perceived Power of the Parties
In most environmental negotiations the parties have a long-standing
relationship and a history of negotiating around similar issues. The
parties over time have observed each other’s behavior to determine if
they can trust each other and work together. Through trial and error they
have discovered the degree to which mutual rewards may be possible.
Repeated interactions, therefore, may be a necessary element in forging
cooperative solutions.2 One aspect of repeated negotiations amongst the
parties is that each disputant is concerned with its reputation. In game
theory, this concern helps the parties cooperate. It assists in overcoming
prisoners’ dilemmas. Through ongoing interactions, the parties wise up
to the benefits of collaboration.
However, according to Raiffa (1982), their repeated interactions just
as easily can lead the parties to believe that competitive behavior makes
sense, even though it can contribute to friction which builds up over time
and makes the parties malevolent antagonists. It can spoil the
atmosphere for negotiations. With repetition, each party may want to
build a reputation for toughness to obtain long term rather than shortterm rewards. When parties interact repeatedly, they may develop into
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long-standing adversaries. The history and content of their longstanding
opposition plays a pivotal role. In their ongoing encounters, the parties
are seeking not just an advance over the status quo, but an outcome
proportionate to the weight and legitimacy of claims they made
historically. These claims no longer are tied to specific issues, but
instead are related to an underlying sense of fairness about their cause.
Thus, the parties may fear setting a precedent in one negotiation because
it will carry over to the next, and in these circumstances it is their
repeated interaction and ongoing ties that are of vital concern and not the
outcome of a specific encounter. For example, in Project XL, EPA
officials were reluctant to make concessions to 3M because they were
concerned that they might have to make the same concessions to another,
less well-intentioned company (Marcus, Geffen & Sexton, 2002). They
did not want to set a precedent that would carry over to other cases.
Raiffa (1982, p. 13) maintains that adversarial relations fester and
build over time until they climax in situations where the parties think
they are dealing with “strident antagonists” and face malevolent,
untrustworthy characters whose promises are suspect. These instances
are likely to be the hardest to resolve. In fact, Marcus, Geffen and Sexton
(2002, p. 171) found in the course of their XL research that EPA staff
participating in the XL projects had “an ingrained culture and skepticism
toward industry that led to strong concerns over the enforceability of XL
agreements” with business partners. Thus, they were highly reluctant to
make any concessions out of a concern that these concessions would
carry over to other issues.
The perceived power of the disputing parties affects these
perceptions. Fineman (1998) documented how Environmental Agency
inspectors in England and Wales would use smaller businesses’ fear and
uncertainty of regulations to their advantage in enforcement negotiations,
whereas when negotiating with larger businesses they had less perceived
power. With more perceived power, the larger businesses often
persuaded the inspectors to accept “a more favorable, less stringent” deal
(Fineman, 1998, p. 958). Power is thus another important variable that
has to be considered.
Individual Values and Institutional Forces
Wade-Benzoni et al. (2002) argued that traditional decision theory is
not incorrect in any fundamental way, but they argued that values and
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social institutions also have to be considered — and furthermore, that
they play an especially important role in ideologically-based
negotiations. In their view, ideologically-based negotiations invoke
value systems “biases” that make it difficult for parties to collaborate.
We agree with Wade-Benzoni et al. (2002) that value systems are
institutionally influenced, and that the role of institutional forces on
negotiating values and behaviors must be considered.
Values
There are a number of ways that values affect individual behaviors in
environmental negotiations. Wade-Benzoni et al. (2002) maintained that
egocentrism is exacerbated in environmental negotiations because of the
uncertainty associated with most environmental issues. Almost every
environmental issue has uncertainty associated with it (e.g., what is the
“safe” level of a pollutant or of a resource to be used, what is the extent
of the problem, and/or what is the urgency or the need for agreement). A
good example would be global climate change. Virtually everyone
agrees that there has been a buildup of CO2 in the atmosphere, but there
is serious dispute about the effects of this buildup and what society can
do about it. In situations where there is this uncertainty, egocentric
interpretations of fairness are likely to surface as barriers to resolution.
Indeed, in the CO2 controversy, countries have been anything but selfless
in their environmental negotiations. Thus, we would expect more
difficulty in reaching agreement in environmental negotiations where
there are scientific and other forms of uncertainty.
Another issue is that environmental values can be defined in such a
way as to make it difficult for the parties to make tradeoffs cognitively or
emotionally for the sake of a mutually-beneficial outcome. When the
issues involve core values, Wade-Benzoni et al. (2002) maintained that
people are less likely to consider tradeoffs. Environmental issues often
relate to people’s core values; they strike a strong emotional cord. For
example, their appeal is preservation of natural resources, loss of life, the
need for species diversity, the survival of the planet, etc. Thus, the closer
an issue comes to an individual’s core values, the more difficult it will be
for that person to make explicit trades during a negotiation. Since
success in reaching a negotiated solution requires making trade-offs
between issues that parties value differently, solutions are difficult to
find if trading is essentially taboo for all or some of the parties.
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Self-Perception Effects Actions
Self-perception is another matter that Wade-Benzoni et al. (2002)
discussed in their work. Behavioral research indicates that people are
more likely to hold themselves accountable for harms they cause than
harms that they fail to prevent (Wade-Benzoni et al., 2002). An
environmental example would be an individual who feels guilty for
driving a car that causes CO2 emissions, but at a different level, he/she
does not feel the same guilt for not reaching an environmental agreement
to safeguard future generations from environmental harm caused by our
generation. Acts of omission over which people have little control do
not negatively affect a person’s self-perception in the same way that
direct acts in the here and now that cause clear harm do. Since
individuals are more likely to blame themselves for acting than not
acting, it is easy to see how substantial delays and stalemates might be
the norm in environmental negotiations (Wade-Benzoni et al. 2002). The
global climate change negotiations are a good example of a case where
not doing anything is easier for most of the parties than committing to a
concrete course of action.
Social Institutions
Wade-Benzoni et al. (2002) also discussed the problems that social
institutions can sometimes create for environmental problem solving.
The institutional pressures to which they refer are regulatory, normative
and cognitive in nature. The law, as a source of a regulation, may create
unnecessary tension; it can set up adversarial relationships between the
parties as they struggle to determine the precise level of a standard or
decide what the law really allows or expects in a given situation.3 Laws
prevent the achievement of integrative agreements when they “take on a
life of their own leaving rationality, innovativeness, and societal interests
behind,” according to Wade-Benzoni et al (2002, p. 48). When a law is
used as an end-in-itself it can increase intractability in environmental
negotiations.
The normative aspect of institutions can also inhibit dispute
resolution. Normative thinking that is incorporated into educational
curricula and professional standards can make it difficult for different
groups to communicate. For example, less than 20 percent of business
schools integrate environmental learning into their instructional
curricula; economists tend to treat environmental protection as an
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externality to market forces; and, professional accounting practices
consider pollution costs a liability, not an asset (Wade-Benzoni et al.,
2002). Thus, those trained in these disciplines are not likely to consider
the impact of and to invest in the resolution of environmental disputes.
Organizational divisions into separate units and offices tend to perpetuate
these differences arising from differing professional training and
standards. For example, most state environmental, health and safety
departments deal with environmental issues from a “letter of the law”
compliance perspective. Enforcement personnel in these departments
generally have difficulty participating in collaborative approaches
necessary for non-adversarial problem solving. It is difficult for them to
overcome their disciplinary background.
Finally, cognitive beliefs that underlie institutions can act as
additional barriers to agreement. Wade-Benzoni et al. (2002, p. 51) use
the example of the persistent belief that economic development and
environmental protection are largely incompatible goals. This belief
often underlies the win-lose perspective organizations bring to the
negotiation table, resulting in a distributive battle in negotiations instead
of leading to the development of a joint problem-solving effort.
Effects of Situational Strength on Individual Behavior and on
Organizational Strategy
The factors discussed thus far provide a formidable array of barriers
to be overcome if environmental disputes are to be negotiated to a
successful conclusion. Let us just repeat what they are: the number and
nature of the parties and issues, third party intervention, history and
perceived power of the parties, values, and institutions. However, we
believe that this list does not include an additional set of factors that have
not received sufficient attention. Previous discussions of environmental
negotiation analytics have not explicitly discussed the role of situational
strength in negotiation behavior. Below we discuss five types of factors
that affect cognitions of situational strength.
We set up a theory-based argument for the inclusion of situational
strength factors in a conceptual model of barriers to environmental
dispute resolution. We argue that there is an important relationship
between the strength of the negotiation situation and the outcome.
Situational strength is a moderating factor. Since situational strength’s
effects on negotiation outcomes is a new concept, before describing the
EXAMINING BARRIERS TO NEGOTIATED ENVIRONMENTAL
AGREEMENTS
411
factors in detail we build the argument for their inclusion in the
conceptual model. For clarity, we describe an example of a weak
negotiation situation before building the theoretical argument.
An example of a weak situation is the solvent-contaminated wipe
rulemaking (Ramus, 2003). The legal mandate is unclear. There is no
clear deadline by which the EPA needs to promulgate the rule, as the
rulemaking is essentially voluntary on the part of the Office of Solid
Waste (OSW). Different parties to the rulemaking have very different
goals for the outcome, with some wanting no change in existing
regulations and others wanting new regulations. The OSW staff has no
clear procedure to follow in a voluntary rulemaking of this type. Many of
the parties to the negotiation are uncertain about whether a proposed rule
will lead to their desired outcome.
Almost all environmental negotiations are similar to this situation in
that they have some factors that make them “weak” situations. But it is
important to mention that the strength of a situation is a continuum. The
solvent-contaminated wipes rulemaking is clearly weak because all five
factors that we argue affect the strength of environmental negotiations
are relatively weak. But, it is just as easy to identify cases where some
of these factors are relatively weak and others are relatively strong. Our
point is that the relative strength of the factors, as it increases, aids in the
resolution of the conflict because there will be less variation in individual
and organizational behavior.
Building a Theory around Situational Strength in Multi-party
Environmental Negotiations
Situational aspects create expectancies in individuals that influence
behaviors. Mischel (1968, p. 293) showed that “what a person does
cannot be isolated meaningfully from the conditions in which he does it.”
Each individual has a set of rules that guide their own behaviors (selfregulatory systems) in any given situation; different individuals may
behave differently in the same situation because of such differences in
self-regulatory systems. That said, Mischel’s work showed that “strong”
situations, “characterized by well-recognized rules of conduct that
constrain behavior, induce uniform expectancies regarding appropriate
response patterns and provide adequate incentives for the performance of
these response patterns” result in less behavioral variance among
individuals than weaker situations where certainty of rewards and clarity
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RAMUS & MARCUS
of goals do not exist (Shamir, 1991, p. 407). Thus, the role of certainty,
clarity and expectancies that are created by situational elements play an
important role in determining behaviors.
This line of research has important implications for behavioral
analysis in multi-party environmental negotiation situations.
Most
environmental negotiations are fraught with uncertainty, either
surrounding the legal mandate, the deadlines for reaching agreement, the
goals that can be obtained from the negotiation, the procedures that will
be followed, and/ or whether the negotiated outcome will lead to the
desired outcome for each of the parties. In the words of Mischel and
Shamir, most environmental negotiations are “weak” situations. If
variance in individual behaviors is greater in such weak situations where
goals, rewards and outcomes are unclear, then we would expect more
difficulty in reaching agreement when one or more of these several
situational uncertainties exist. On the other hand, when there is reduced
uncertainty (or greater clarity) around these situational elements, we
would expect greater uniformity of behavior by the negotiators, resulting
in a greater likelihood of reaching a negotiated agreement. This type of
insight is what lead Bingham (1986) to reject using ADR in some
environmental disputes.
Organizational researchers “study how organizational settings and
organizational members influence each other and are influenced in turn”
(House, Rousseau & Thomas-Hunt, 1995, p. 74), showing that the causal
links between individual behaviors and organizational behavior run in
both directions.4 With regards to situations, Rousseau and Fried (2001)
argued that context, including aspects related to the strength or weakness
of the situation, are highly important when studying worker-job factors
in organizational behavior. Weick (1996), building on the work of
Mischel (1977), made the case that individual behaviors influence
organizational behavior and that researchers “need to think differently
about interactions between individuals and their surroundings depending
on whether the situation is weak or strong” (Rousseau & Fried, 2001, p.
2).
There is a parallel between individual behaviors and organizational
behaviors related to perceptions of situational strength. We argue that
situational elements of negotiations will influence organizational
behavior and the development of organizational negotiation strategies.
An organization’s culture is the lens through which the external
EXAMINING BARRIERS TO NEGOTIATED ENVIRONMENTAL
AGREEMENTS
413
situational elements of the negotiation will be formed into a collective
view or organizational strategy for reacting to this external stimulus. The
organization will develop a strategy, which will in turn have an effect on
the degree of tractability of a negotiating situation. Just as we have
predicted in the case of the behavior of individuals, if the organizations
involved in the negotiation perceive the situation to be weak then we
would predict greater variability in organizational strategies within that
negotiation situation.
“Weak” Legal Mandates Make Agreement More Difficult to Achieve
The first point we make is that the clarity of the legal mandate for an
environmental negotiation can vary widely depending on the situation.
For example, the parties to XL negotiations operated under the
assumption that they had insufficient legal authority to fulfill XL’s goals
(Marcus, Geffen & Sexton, 2002). EPA’s legal staff made it clear that
XL projects would violate legal and regulatory requirements. Another
example is that the EPA’s Office of Solid Waste wanted to write a rule
that gave a conditional exemption to generators of wipes containing
various hazardous solvents (Ramus, 2003). The industrial laundry
associations argued that the Office of Solid Waste did not have a legal
mandate to regulate wipes that are laundered for reuse because they are
not solid waste. The law says that an item must first be classified as
“solid waste” before it can be regulated as a “hazardous waste.” Using
this and other arguments the trade associations for industrial laundries
successfully blocked the rulemaking effort of the Office of Solid Waste,
while participating in regular negotiations with other stakeholders who
had an interest in obtaining the conditional exemption.
An unclear legal mandate leaves the way wide open for numerous
interpretations and results in broad variations in behaviors among the
negotiators. Negotiators for the industrial laundry trade associations
used blocking tactics because they believed the Office of Solid Waste
was on “weak” legal ground, arguing that this office did not have the
legal right to regulate since the towels are not even “solid waste.”
Negotiators for disposal wipes trade associations ignored and pushed
aside the legal mandate issue and focused instead on appealing to the
EPA staff’s sense of “fairness,” maintaining that similarly contaminated
materials should be regulated in the same manner.
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RAMUS & MARCUS
Equally important to individual behaviors in negotiation settings are
a range of organizational behaviors. Each organization, when perceiving
that a legal mandate is either strong or weak, will use this information to
develop the most appropriate strategy to get their interests met during the
negotiation. They often prepare position papers that bring evidence to
bear supporting the arguments they direct their negotiators to use at the
negotiating table. In the case of a perception that the legal mandate is
weak or unclear, organizations sensing that an agreement would not
serve their interests will tend to marshal the evidence and argue against
any regulation, claiming that the agency in question has no legal mandate
upon which to act. In contrast, organizations that benefit from a
rulemaking action will search for arguments unrelated to the legal
mandate to strengthen their case, trying to find alternative principles to
strengthen its use. Thus, in those situations where the environmental law
or legal mandate is not transparent, reaching agreement will be far more
difficult. On the other hand, when the legal mandate is transparent and
clear for all parties, a negotiated agreement may be easier to reach as
uniformity of behavior at both an individual and organizational level will
be more likely to occur.
Unclear behavioral mandates exist in all weak negotiation situations.
Other characteristics of these situations are uncertainty around deadlines,
lack of clarity about goals, uncertainty about negotiation procedures, and
uncertainty about the parties reaching their desired outcomes. These
factors also interact at individual and organizational levels.
Uncertainty around Deadlines
When an environmental law sets no clear deadline for a rule-making
then we would expect the ambiguity of this situation to result in greater
differences in individual behaviors and in organizational strategies.
Burkardt, Lamb and Taylor (1998), among others, have demonstrated
clearly that when disputants feel pressure from deadlines they are more
ready and able to resolve environmental issues.
Clarity of Negotiation Goals for each Party
Many environmental negotiations do not have a clear set of goals to
be achieved through the negotiated agreement. If clear goals for the
overarching negotiation do not exist, then reaching agreement will be
more difficult because both individuals and organizations will be less
EXAMINING BARRIERS TO NEGOTIATED ENVIRONMENTAL
AGREEMENTS
415
likely to set clear goals for themselves in their own negotiation activities.
For example, in the case of Project XL, the negotiations bogged down
because of lack of clarity about how to make a trade-off between
superior environmental performance (SEP) and regulatory flexibility
(Marcus, Geffen & Sexton, 2002). Both SEP and regulatory flexibility
were poorly defined, and the meanings of these concepts were the source
of nearly endless debate among the negotiation participants. In the case
of the solvent-contaminated wipes rulemaking, the goals of the
negotiation also were unclear throughout. The generators of the wipes
wanted guidance, but they did not want a new regulation. The EPA
Office of Solid Waste was pursuing rulemaking because it wanted to
create a legal exemption for particular cases. The disposal wipe trade
representatives wanted any guidance or law that would exempt their
product from being treated as hazardous waste.
In both the XL and solid waste cases the business representatives had
clearer goals than did those from government agencies. Business
managers must operate according to quantifiable and discrete financial
targets, and their performance is evaluated using indicators such as
market share, profits, and return on investment (Sexton et al., 1999).
Regulatory officials have goals that are more vague and indefinite and
not as easily measured (e.g., improving environmental quality), and their
performance is judged according to more subjective criteria such as the
status of public health and the general state of the environment. As a
rule, business managers will place a high value on efficiency while
government representatives will place a high value on equity,
accountability, and responsiveness in addition to efficiency. Business
managers, in fact, have increasingly adopted organizational structures
designed to allow them to respond quickly to rapid changes in the
marketplace, while government representatives — reflecting the checks
and balances in the Constitution — have maintained complicated,
bureaucratic, and overlapping structures which operate at a more
measured pace. Government representatives also must cope with
distributional conflicts that arise among diverse interests operating in a
democracy. Business managers, on the other hand, must cope with the
needs of customers and the expectations of shareholders, and in meeting
those needs they are frequently rewarded for taking timely action. These
are essential facts or principles associated with the way representative
government and markets have been set up in the U.S.
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It is also important to recognize that for staff in either business or
government to have clear goals, their organizations must engage in
internal negotiation to arrive at such goals. Sometimes the amount of
internal negotiation required is quite extensive, but without this kind of
timely negotiation it is nearly impossible to establish a discrete set of
goals for the negotiation. The prospect for a successful outcome of an
external negotiation diminishes greatly in the absence of successful
internal negotiation. Brett, Northcraft and Pinkley (1999, p. 447) argued
that before negotiating, parties must come to a clear understanding of
their preferences for the accomplishment of optimum results. They noted
that the negotiation itself often becomes a process of discovery and
clarification of their own goals. Without clarity of negotiation goals
conflict resolution is difficult indeed; prolonged and often fruitless
negotiations become likely outcomes.
Certainty regarding Negotiation Procedures/Processes
In short what we are saying is that when the rules of engagement are
clearly delineated, negotiators are in a strong situation. However,
environmental negotiations often lack clear procedural guidelines. For
example, in the 3M XL case a key mistake was the failure of the
Minnesota State Pollution Control Agency and EPA Region 5 to work
out a Memorandum of Understanding that would clarify the
responsibilities of each party (Marcus, Geffen & Sexton, 2002). There
was an inability to bring clarity to the rules. When procedures and
processes are not clearly delineated, negotiators face a weak situation;
unclear procedures add ambiguity to the situation. We argue that they
create uncertainty and increase the likelihood that individuals and
organizations will act in disruptive ways. For example, the encounters
between 3M and EPA that took place during the XL negotiations were
surprisingly disruptive. An important meeting between the Minnesota
delegation and EPA Region 5 started with a “spirited exchange”
according to one account (Marcus, Geffen & Sexton, 2002, p. 79). This
exchange was best described as a heated argument that arose as a
consequence of unclear goals and the lack of certainty about procedures.
Certainty that Negotiated Outcome Will Lead to Desired Outcome for
Parties
As in other types of negotiations, situational uncertainty often exists
in environmental negotiations as to whether a particular negotiated
EXAMINING BARRIERS TO NEGOTIATED ENVIRONMENTAL
AGREEMENTS
417
outcome will lead to a desired outcome. Weak situations contribute to
this uncertainty. For example, a main reason that the EPA opposed the
3M XL proposed agreement was the absence of a guaranteed level of
direct environmental benefits. The EPA staff argued that if facilities are
granted flexibility, they must in turn provide a guaranteed level of
superior environmental performance (Marcus, Geffen & Sexton, 2002, p.
100). 3M, in turn, rejected EPA’s counter offer as not offering enough
flexibility to justify the level of environmental improvement EPA was
demanding. Rather than taking away from the compliance burden, 3M
believed that EPA’s counterproposal added further burdens to it. For
both parties, the need for certainty that their goals would be met was
understandably high in the issues under negotiation and neither was
satisfied that if a negotiated outcome was achieved their goals would be
met.
Uncertainty around goals, procedures, legal mandates, and outcome
expectancies create weak situations where behaviors are likely to be
varied, unpredictable, and immoderate. However, when a “hurting
stalemate” exists and all the parties experience heightened risk and
uncertainty and believe that failure to reach a negotiated agreement is
worse than the many of the alternatives available, the chances that the
parties will settle may increase (Burkardt, Lamb & Taylor, 1998, p. 886).
The fear of what would happen if they did not settle could overcome
uncertainty and trigger the development of a strong situation where
greater uniformity of behavior among parties could be expected. But this
fear would exist only if there were no obvious alternatives to a negotiated
agreement for each of the parties. There has to be no best alternative to a
negotiated arrangement (BATNA) left for the partners in a weak
situation to turn it around and make it strong.
Finally, it is important to note that we believe that parties to a
negotiation have power over the strength of the situation. For example,
some might argue that laws pre-exist the negotiation and are difficult to
change, but we can point to many examples of where parties to a
negotiation have influenced the law. This is also the case with regards to
the process, or the procedures, or the deadlines, or goals etc. Parties can
work together in order to make the situation strong. The difficulty with
changing intractable negotiations into tractable ones is often that at least
one party has it in their best interest to prevent making the situation
strong!
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RAMUS & MARCUS
CONCLUSION
We have delineated a set of elements that can affect the likelihood of
parties reaching agreement in multi-party environmental negotiations.
This framework is a composite of factors that the general negotiation
theory literature indicates as relevant to negotiated agreements, and in
addition we have included a new set of factors that we believe help
explain why environmental negotiations often fail to result in
agreements. In particular, we argue that factors related to situational
strength can be powerful barriers in environmental negotiations because
in many cases these environmental dispute situations lack clear legal
mandates, established deadlines, specific negotiation goals, processes /
procedures, and there is often a lot of uncertainty that the negotiated
outcome will lead to the desired outcome for each party. As such, many
environmental disputes are weak situations where we would predict large
variance in both individual negotiator behavior and in organizational
strategies for engaging in the negotiation.
This framework is a useful analytical tool for researchers as it
provides a better understanding of why environmental disputes are
difficult to settle. Intractability starts to set in because of the
organizational factors and individual behaviors discussed in the existing
literature on negotiation and conflict resolution. We argue that
intractability of environmental negotiations is exacerbated by situational
factors that may be present. In our view one of the important
contributions of this paper is that it clearly delineates a set of situational
factors that have been missing in previous research.
Our work represents an advance over what we have seen previously,
but it requires much additional empirical work. Variables we discussed
need to be operationalized and measured, and the model of factors needs
to be tested across a variety of environmental negotiations. Nonetheless,
we believe that the model is a useful one for researchers to employ in
their research on conflict resolution in environmental and natural
resource disputes under negotiation. We hope this paper inspires research
studying how elements of situational strength determine outcomes in the
realm of environmental negotiation, and how individual and
organizational behaviors are affected by these elements.
Just as Sebenius (1983) argued that parties to a negotiation and
issues being disputed can be tacitly or explicitly changed, we believe that
negotiators can influence the entire set of barriers delineated in Table 1
EXAMINING BARRIERS TO NEGOTIATED ENVIRONMENTAL
AGREEMENTS
419
of this paper. As such we consider the list in Table 1 to be a helpful
blueprint for policymakers and other practitioners involved in
environmental negotiations for assessing the potential barriers that might
exist in a given situation. One potential practical application for this
framework would be to use Table 1 as a checklist in preparing for
negotiations. Before a negotiation begins a negotiator could place a
check mark in front of each item that could pose a potential barrier. The
negotiator could estimate the potential for reaching agreement, and
understand more fully the obstacles that will have to be overcome to
reach an acceptable agreement. The list can help interested parties
identify where they might develop creative options for dealing with
barriers. For example, a policy maker can clarify procedures, set
deadlines and specify relevant legal mandates, as well as make their
organizational goals more explicit.
Obviously, parties that prefer that no agreement be reached will have
it in their best interest not to be “honest brokers” in this type of
exchange. They will work to increase the complexity and weaken the
situation. Table 1 can be used to increase the barriers to agreement as
much as to make it more likely that parties in the negotiation will settle.
Although we believe in principle that agreement is better than nonagreement, sometimes it may be better for the parties to walk away from
the negotiating table. It may be better to agree to disagree than to come
to a false, forced, or poorly conceived settlement.
Still, our primary sympathies are with those looking to reach
agreement in environmental negotiations. There are many tragic
situations that could be better dealt with if negotiated solutions were
achieved and intractability overcome. Many scholars have written
extensively about tactics that can be used to achieve the best outcome for
one’s self or one’s organization (Fisher & Ury, 1981; Lewicki, Hiam &
Olander, 1996; Lewis, 1999; Saner, 2000; Shell, 1999; Ury, 1993). We
believe that choosing from among these tactics can be more effectively
done if negotiators and organizations understand the obstacles they face
and the individual, organizational, and situational dynamics underlying
these obstacles. To this end, we have provided the theoretical framework
found in this paper.
NOTES
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RAMUS & MARCUS
1. We are talking about facilitators, not mediators in the context of the
following discussion.
2. Lamb, Burkardt and Taylor (1996, p. 181) comment: “Different
regulatory implementation
negotiations
typically involve
representatives from the same organizations. Moreover, state,
federal, and utility representatives often appear as parties in separate
disputes spanning several years. This lesson may be summed in the
words of Ogden (1994, p. 20): 'Always be kind to everyone. You
never know who will be your boss [or opponent] tomorrow.'”
3. As we will discuss below, a law can also create certainty, which can
be helpful in reaching a negotiated agreement.
4. See House, Rousseau and Thomas-Hunt’s 1995 chapter entitled “The
Meso Paradigm” for a thorough discussion of how organizations
affect individual behavior and how individual behavior affects
organizational behavior.
ACKNOWLEDGMENTS
We would like to thank John Antonakis, Max Bazerman, Andrew
Hoffman, Annette Killmer, Berton Lee Lamb, Nicholas Lovrich, James
Sebenius, Oran Young, and three reviewers for their helpful suggestions.
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