A Community Guide to Using Alternative Dispute Resolution to Secure Environmental Justice
By the time you sit down at the negotiating table, your thorough research and planning should already have improved your chances of success. Now you can make the most of your hard work by being an effective negotiator for your community.
Presenting community concerns in an "opening statement"
Negotiation often begins with each party making an opening statement. This is your first opportunity to explain your view of the issues and your goals for the ADR. The entire steering committee should be involved with drafting the opening statement—either through a consultation process or a group writing effort.
Who should speak for your group? Pick a spokesperson who can speak clearly, calmly and concisely. The spokesperson may be the person who knows the subject best, but only if he or she is a good public speaker. Otherwise, you are better off choosing a strong speaker, even if that person is not the community "expert" on the issue.
What is the best way to educate the neutral and other parties? You can use many tools to communicate the nature of the problem, its causes, its effects on the community, and possible solutions. For instance, you can show photos, charts, or videos to illustrate the problem. Visual aids will make your story much more powerful and real. In some cases, a tour of the community might be the best way to convey to the other party how serious and important the issues are.
Practice your presentation. Here are a few techniques to focus on:
- Keep your presentation short and crisp, with no rambling. Write down your remarks in advance, and cut out anything that does not support your main arguments.
- Make eye contact with people at the table when you are speaking.
- Focus on the decisionmakers for the other parties.
- Keep in check any frustration or anger to the extent possible, regardless of how justified.
Mary Prepares Maple Plains' Opening Statement
The community decided Mary should deliver their opening statement because of her knowledge of the problem, her interpersonal skills and even temper, and the fact that the she had the trust of all community members. Mary and the steering committee wrote a presentation with a concise description of the problems facing Maple Plains, using specific dates of the community's observations and scientific information they had collected. She also mentioned some environmental laws that might be relevant. To give these points more force, Mary decided to use the same chart she presented at the community meeting and to display an enlarged photo that a resident had taken of the leaking drums. For several days leading up to the negotiations, Mary's friends and family helped her practice her opening remarks.
Conversations with the other side
Throughout the ADR process, you will interact with the other party's negotiators in formal negotiating sessions (at the table) and in more informal settings (at the water cooler in between sessions). This section is a guide to making the most of those conversations.
At all times, build a professional relationship. Your informal conversations with the other side's negotiators present an important opportunity to learn valuable information, and also to speak about your background and long-term commitment to the community. If you get to know each other, you can improve the tone of the whole process. Although the other party's negotiators may not be your friends, establishing a healthy professional relationship can help build trust, an essential part of any successful ADR.
During the negotiation, focus on listening skills. Ask open-ended questions that do not have "yes or no" answers. Invite full explanations with questions like "What happened next?"
Another important skill is empathy. Valuable information can be elicited by simply showing someone that you understand where he or she is coming from.
Finally, summarize your understanding of the conversation at the end of each session. Write down your summary. This avoids misunderstandings and makes it harder for the other team to change its mind later in the process.
Keep some conversations private. Throughout ADR, occasions may arise when you need to consult privately with members of your team. Do not hesitate to request to talk separately, or "caucus," outside of the meeting room. Caucusing is useful whenever you must:
- Decide your next course of action
- Share sensitive information
- Regroup after a surprise
- Let tempers cool, or
- Get opinions and information from experts that are not present.
Initial positions. Unless you have extraordinary information and reason to be confident, it will generally not make sense for you to open an ADR session with a specific proposal for ending the dispute. Instead, use your initial position to signal: 1) that you are reasonable and 2) that you need serious change. So, for example, you might begin a negotiation by saying something like this:
There are many in our community who believe that the answer here is for the company simply to shut down the plant. It has fouled our community with its air pollution and traffic for the past 15 years. We have talked seriously about what we need out of these negotiations, however, and we are not here to demand the closure of the facility. We understand that you could not meet that demand. Instead, we are here to tell you that the most important issues for us are stopping the air pollution, decreasing traffic through our streets, and increasing the facility's hiring from within the community.
Offers and counter-offers. Before you reach a final agreement, you might have to exchange several offers with the other side. As a practical matter, offers are usually communicated by the neutral, when there is one. The following tips can help you get the most out of this process:
- Use the neutral strategically. Use the neutral to help the other side understand and appreciate the benefits of your proposals, as well as the risks and downside of continued and prolonged disagreement. If you ever say something to the neutral that you do not want repeated to the other side, clearly state to the neutral that you are speaking "off the record."
- Be creative. Continue to generate options throughout the process, and encourage the other side to do the same.
- Start with the easier issues. Reaching agreement on a few smaller or easier issues can generate momentum for the process and build overall trust among the parties.
- Do not give anything away without getting something in return. Even if a particular concession is easy for you to make, it should be made strategically. Perhaps you can make it seem more valuable by forcing the other side to push for it. Alternatively, giving a token concession may help establish good will that can be used to obtain something more important.
- Only make commitments you are absolutely sure about. One strategy for avoiding premature commitments is to frame the commitment in the form of a question. For instance, instead of saying "I'll do X if you do Y," which sounds like a definite commitment, you can ask "If I do X, will you do Y?" to probe potential scenarios.
- Borrow from objective groups. It is usually easiest to convince other parties to meet standards that have been endorsed by reputable, credible third-party entities, such as the ISO (International Organization for Standardization) standards for industrial activities. If you have ever relied on the "bluebook" estimate of the fair price for a used car, you have already used this strategy.
Provisions to Consider in Your Negotiated Agreement
Adapted from Sanford Lewis and Diane Henkels, Good Neighbor Agreements: A Tool For Environmental and Social Justice, Social Justice, Volume 23, Number 4 (1996), available at: http://www.cpn.org/topics/environment/goodneighbor.html
Maple Plains Negotiates
After short welcoming remarks from the mediator, each side presented their prepared statements. Mary shared details about her community's observations of the barrels, explained why they posed a physical and psychological threat, and summarized the kind of changes the community wanted.
In his opening statement, Fred asserted that Belvedere had a strong history of compliance with all regulations. He said that the company had begun using the neighborhood site for temporary drum storage at various times because space was limited at the steel plant; that the waste was non-hazardous and thus not regulated by EPA; and that the company was seeking a long-term solution that would take more time to work out. He noted that Belvedere had held a city permit for industrial use of the site, but that the permit had through unfortunate oversight been allowed to lapse. He said that the site was being managed the same way as under the previous permit.
Fred said the company was not responsible for any past leakage from barrels. He suggested "letting bygones be bygones" and that the community stop "tarnishing Belvedere's reputation." Fred pointed out that changing Belvedere's disposal practices would involve significant transportation and labor costs. He added that they were in the process of renewing their permit for the next year, but seemed confident that the permit would be approved and they would not have to move the storage site.
During this first session, the mediator helped the two parties develop lists showing the ways in which the problem affected them and outlining how they might be willing to cooperate. At the end of the half-day session, the parties agreed to consult with the rest of their groups and return in two weeks with more concrete positions.
Two weeks later, Mary and Fred returned to the community center to meet with the mediator and Belvedere's team for the next round. This time, Fred presented the option of using the site only as a short-term transfer station. He explained that transfer stations do not pose a serious health risk because barrels do not stay on site long enough to decompose. He said he thought this change would satisfy the community, and that the groups that had participated in the steering committee should all agree not to sue Belvedere over its activities or oppose its permit application.
This proposal raised many concerns for Mary and the community members: human health, safety, monitoring, leakage, groundwater contamination, and diesel truck traffic in the neighborhood. Mary felt frustrated that Fred seemed determined to "win," but she focused on finding ways to make a transfer station meet the community's concerns. The neutral encouraged the parties to go home and think about various scenarios that might be acceptable for both the community and Belvedere.
What issues are likely to come up as you come close to reaching a deal?
Deciding when you should accept an offer. Consider the following:
- Compare proposed agreements with your BATNA, not with your initial offer. You may not get everything you want out of ADR, but an agreement might make sense if it will leave you better off than your likely alternatives.
- Ask a lawyer to review a proposed agreement.
- Any agreement should include a plan to monitor follow-through by the parties. Follow the recommendations in the section on "making your agreement stick."
What if you can't agree on everything? Try to agree on as many parts of the dispute as possible. If there are unresolved issues, leave the door open for future discussions. An agreement on some, but not all, key issues may still be in the community's best interest.
Community buy-in. As a representative of the community, you will only be able to enter into an agreement that the community supports. Before accepting any agreement, you must communicate with the broader community and make sure there is a general consensus in favor of the proposed agreement.
If the community is divided, the members of the negotiating team must attempt to address the divisions. This will involve listening carefully to those who are upset by the direction of the negotiation, and explaining clearly the potential gains for the community. By listening carefully, you may be able to think of ways to address the concerns of those who are not satisfied with the outcome thus far. Members of the negotiating team should be ready to describe in detail what the community has to lose if it insists on "the best" at the expense of "the good."
The Negotiating Team Reports to the Maple Plains Community
The weekend after each negotiation session, Mary invited community members and the steering committee to her house. They asked her about the negotiation, and talked about their impressions of Fred and Belvedere's positions. The community agreed that the site absolutely could not become a permanent solution for barrel management. There was some disagreement within the community. Some felt that the barrels should not be there at all, but others felt they were more likely to be able to reach an agreement if their position was flexible.
They talked late into the night about potential scenarios that might be achievable. Ken felt that it was very important that the barrels not leak, and he suggested that an independent expert be recruited to monitor them periodically. Another person pointed out that by setting a limit on the number of barrels, they would be able to limit the truck traffic in the neighborhood, as well as reduce the potential leakage. A few community members were angry at the direction of the negotiations, but felt that some agreement would be better than none. Others felt that as long as the company cleaned up any existing contamination and prevented future contamination, they would be satisfied.
This section discusses precautions you can take to make sure that your agreement translates into real action.
Monitoring plans. Simply put, your agreement should outline the steps you will take to verify that the other side lives up to its promises, and should clearly state conditions to ensure that it does. Likewise, the other side may seek assurances that you will live up to any promises that you make. For example, a factory manager who agrees to reduce the amount of toxic pollution that comes out of a smokestack may agree to have an independent expert test the smokestack a certain number of times each year. Of course, the details of your monitoring plans will depend on your situation. The key features of a successful monitoring plan are:
- A timeline that clearly defines and includes dates for every essential step. Ideally, you would create a calendar with details about everything that is going to happen under your agreement. In reality, people often enter into an agreement without knowing exactly how some parts of it will be implemented. For example, it is reasonable for a company to ask for time for its managers or engineers to work out certain details, as long as you specify how long they will have to tackle any remaining problems and what the consequences will be if they fail to do so.
- Who is responsible for monitoring? This will be a less difficult issue when the community can monitor follow-through on its own. In many cases, however, monitoring will be a technical activity that the community cannot successfully carry out by itself. In this type of situation, the community may need to find an independent expert who can perform tests and report back. If your community does not have the funds to pay for independent testing, you can ask the other side to pay these costs. A willingness to pay for certain expenses may be part of the bargain that you strike with the other side.
- Objective standards. Without clear standards, you might wind up disagreeing later about whether the agreement is being followed in good faith. Clear standards might mean that specific numbers are attached to the promises in an agreement, like a "parts-per-million" limit on a toxic chemical in a river or a specific monetary formula for payments to the community. The clearer and more specific you can make the standards that both sides agree to, the easier it will be to monitor everyone's performance under the agreement.
- Contingency plans. Are there foreseeable events that may arise that would make implementation of the agreement more difficult? If so, you should plan for an appropriate response and include a "contingency plan" in the written agreement.
- Financial assurance. Try to include provisions for financial assurance in your final agreement wherever the other party has future tasks to perform and obligations to carry out. You want to be sure that money has been set aside to address the contingencies in the agreement that need to be guaranteed. While financial assurance is most often obtained under regulatory programs (such as programs for decommissioning of waste facilities, or reclamation of mine sites or oil and gas sites), you may be able to include financial assurances in an ADR agreement. Financial assurances may take the form of a:
- Bond issued by a bonding company
- Letter of credit issued by a bank or financial services company
- Escrow account established by the company
You will want to establish conditions under which the financial assurance will be applied, such as to clean up a spill, provide replacement water supplies, or guarantee completion of construction or remediation. The agreement should also specify when the financial assurances may be ended upon satisfactory completion of the tasks and commitments.
What if another party wants to change something later? When parties enter into a long-term agreement, it is common for unforeseen events to make it difficult for one of the parties to fully keep its promises. So, you must include a system for dealing with unforeseen events in any long-term agreement. That way, you can modify the agreement if necessary, instead of starting over at square one. Typically, parties to a written agreement will include a provision stating that any modifications to the deal must be made in writing and signed by both sides. In general, it is also a good idea to meet periodically with the other parties to maintain your relationship.
Several more rounds of negotiations passed, and the two parties finally hammered out an arrangement that satisfied everyone at the table. Under the proposed agreement, Belvedere would pay an independent expert to evaluate whether leaky barrels had contaminated soil or groundwater at the site or the convalescent home. If any cleanup was required, they agreed they would pay for it. The site would be used as a transfer station for up to two years, but to ensure that there would be no leakage, the independent expert would re-inspect the site four times each year. Belvedere would immediately lose its rights to use the site as a transfer station if levels of chemicals above EPA standards were ever found in the environment.
Further, the parties agreed on new rules for how the transfer station would operate. No barrel could be left at the site for longer than one week; additionally, all barrels would be marked with large, clear numbers so the community could monitor their arrival and removal. They agreed to limit the hours and frequency of truck traffic.
Belvedere agreed to apply for a city permit that would expire at the end of the year, and be renewable for just one year. Additionally, Belvedere and the community agreed to meet every six months—with a third-party neutral—to make sure all parties remained satisfied with the arrangement. Both parties reviewed and agreed upon a document that explicitly outlined all of the points of agreement. Then each negotiating team went back to their group to seek consensus on the agreement.
Mary hosted another community meeting to discuss the proposed deal with Belvedere. The community agreed that the negotiated arrangement would make them better off than their other available options. Belvedere's headquarters also agreed, and a final meeting was set.
With the community's support, Mary and Ken signed the agreement. The Maple Plains community congratulated Mary, the steering committee, and all of the community members for their work. The negotiation teams agreed to continue meeting—though less frequently—to monitor implementation of the plan and to discuss any concerns that arose.
Although the ADR process can rarely be expected to obtain an ideal solution to a community's environmental problems, it can provide a powerful, collaborative tool for working with companies, government agencies, and other groups to find areas of mutual agreement on how to improve a situation. Even if a community ends the ADR process before reaching an agreement, the research and relationship-building that goes into preparing for ADR can enhance the community's effectiveness in other organizing and advocacy efforts.
The Environmental Law Institute wishes to thank all of the dedicated environmental justice leaders who made this project a success. Hundreds of community leaders gave their time and passion to participate in the workshops and share the lessons they learned many times over in their communities. Without the dedication and guidance of staff of the U.S. EPA Office of Environmental Justice, this project simply would not have been possible. We owe a debt of gratitude to our ADR expert, Michael K. Lewis of JAMS, for his inspired communication of challenging technical concepts. And finally, we thank the heart and soul of this project, Connie Tucker and Richard Moore, for their vision and nurturing guidance every step of the way.