Assistant Professor, Department of Urban and Regional Planning at the University of Wisconsin-Madison
Topics: mediation, reframing, Thirdsiders
Interviewed by Julian Portilla — 2003
Listen to Full Interview
- To Mediate or Not to Mediate, that is the Question
- Focusing on Smaller Problems to Reframe Values
- Third Party Involvement
- Advice to Third Parties
Q: Can you give me a brief overview of your work?
A: I am an urban and regional planner. I got into the conflict resolution field as a doctoral student. The first class I took in conflict resolution was from Roy Lewicki. He ultimately went on to direct my dissertation work in intractable conflict. In the course of the conflict resolution courses that I took at Ohio State, I found that every time I came to the table as a member of a community group or environmental group, I felt compromised, I felt co-opted, and I felt like I was selling out. So for me this evolved into a question of when is it not appropriate to mediate environmental disputes. From there it evolved into disputes that got really stuck, particularly in the environmental realm, but also in the public policy and land use realm. I saw a lot of examples of really stuck conflicts, intractable conflicts.
As a planner, I recognized that we were often called upon to perform a third party, intermediary role. Yet, we didn't have mediation training. Nor were we neutral because we were by and large representatives of public sector agencies. We work for the state, the city, and the regional planning commission. So I started thinking about wanting to come up with some identifiers of intractable conflicts for planners to use so that they knew when they had something on their hands that was going to evolve into something that was too hot for them to handle. That is the origin of what I started working on and then I became very interested in environmental conflict as a subclass of political conflict. I really saw it as stemming from differences in people's worldviews as well as their fundamental values-things that are not really negotiable. I saw what I thought, were drivers of intractability and conflict.
What I wanted to do was come up with some kind of a statement of characteristics of intractability that I could report to planners. Then I could say when you see these identifiers in a conflict that you are involved in, you might want to consider getting a third party to come and mediate. So this is a place where a planner should step out for lack of expertise, so community groups don't get co-opted. Also so people don't exhaust resources on trying to resolve a conflict through a mediation process without a very skilled intermediary present. At the time that I began doing this work, in the early 90s, the field was dominated by a view that mediation could be used in a very wide spread fashion to resolve all kinds of things. People were overly saying how useful mediation was overall. I had been trained in philosophy as an undergraduate, so I new that to invalidate the argument all I had to do was find one counter-example. For me, environmental conflict became the counter-example.
When you look at environmental conflicts, say something involving a local government and a Native American tribe and business interests or development interests, you are dealing with fundamentally different worldviews and very different value sets. To come to the table and try to mediate some kind of solution might not be in the best interest of those groups. In particular, of the Native American group, or the local citizens' group, or the environmental group. There might be other avenues that could be better for them to pursue when they are interested in establishing things like their rights. The field is very clear now that mediation is not good at establishing the rights of parties and peoples.
There are a number of other things that it does not do well: Such as, where questions of identity are concerned or where groups feel that their identity is threatened by coming to the table to negotiate. Say for example the case of Paseo Del Norte in Albuquerque, New Mexico, where the city was proposing to run a four-lane highway through the petroglyph national monument or through a segment of it. It proposed moving the petroglyphs, tunneling under the petroglyphs, or building a bridge over the petroglyphs. None of this worked for the pueblos there because they have views about the creation of their people in which they emerge from the ground. So tunneling under violates their fundamental beliefs in where they came from. Going through the petroglyphs obviously destroys them so that was not a solution. Moving the petroglyphs was obviously not a solution either because their very physical space is sacred. And building a bridge over them wasn't really an option because it would still violate the sacred space. I think that a conflict like that clearly rises to the level of intractability rather quickly because what is at issue here is the identity of the people in the pueblo.
Q: So environmental conflicts are intractable?
A: They can be. Yet, at the same time there are many that can be mediated. But it is a question of getting the groups to the table and creating a space in which the groups that don't have as much power to have a say. So you can create a space into which people can mediate effectively, but those are the kinds of conflicts that get stuck pretty easily.
Q: Talk a little more about the pueblo conflict.
Are you saying that it shouldn't be mediated or that you think some process there that should go to court?
A: I think it's a very difficult kind of thing to mediate. I know that in my work I surveyed mediators and asked them specifically about that conflict and asked them if they thought that conflict was intractable and if they could mediate it. They said yes it was intractable and yes they could mediate it. I think the issue with intractability is not that it is a conflict that can never be resolved, but that it is a conflict that has reached such a point of impasse that something has to be done to transform it to move people back from the impasse to get to a place where they can deal with each other.
Q: Isn't that what mediators usually pretend to do?
A: Yes. But I think there are differences between conflicts that are intractable driven by worldview differences, fundamentalvalue differences, threats to identity and so on. There are differences between those compared to a conflict about where you are going to site a landfill; assuming that you are not going to site it in a sacred space. A conflict about where you are going to put the landfill is something that can be mediated relatively easily compared to the Albuquerque case.
Q: So what happened in the Albuquerque case?
A: I am not sure where it stands now. I know that the city had a referendum to run the highway through a golf course and it was voted down. But I heard from someone who had been there recently that part of the highway had been constructed. My direct knowledge of the story is fairly limited and a few years old now, but it was not mediated. It was an ongoing dispute that no one could do anything about.
Q: It didn't go to court?
A: No, not that I know of.
Q: I would like to explore the idea of when mediation is appropriate and when it is not in certain environmental situations. You said it is less appropriate when there are worldviews at stake, which is interesting because a lot of people in international conflicts say that is especially when it does any good-like Northern Ireland or Irael and Palestine because the other option is violence. Maybe that's because it is a less structured environment where there is no overarching structure to govern the end of that conflict, whereas in this country where the end all would be litigation or possibly violence, but less possibly violence.
When is it not appropriate to mediate an environmental dispute?
A: When it involves fundamental rights. When it involves wanting to make some very clear and authoritative statement of societal values about a particular thing. When you want a law to say this is how it should go, or a regulation to say this is how it should go. In essence when you're trying to establish those clear statements of societal values. It does not mean that you get the right statement in the law that is made or case law that is made, it just means that you have some sort of clear directive of how things are going to go. It's not to say that there isn't some sort of role for a consensus building process or something like that that can feed into a resolution for a dispute. That is also not to say that there aren't environmental conflicts that can be re-framed. You can get participants off impasse by re-framing the issues at hand.
Q: Can you re-frame issues in a conflict where worldviews are fundamentally different?
A: What you can do is get groups to agree on a practical problem that needs to be resolved. You are not asking them to alter their worldviews, and you are not asking them to come into an agreement on a unified worldview. You are asking them to turn their energies toward the solution of a practical problem. The Katryn County collaborative case in New Mexico is a good example of coming to that kind of resolution. You have ranchers, you have environmentalists from the forest service, you have loggers, and you have very strong concerns about the local economy that is being decimated by the death of the logging industry and problems with ranching as a livelihood. There you had people, ranchers and loggers, clinging to past views about how life was and how it should continue to be, when the reality was that wasn't going to work anymore. The town needed economic development of some kind. You had the forest service concerned about a number of issues related to forest management. The local populace also needed employment.
Through an extended process of collaboration, working on what appeared to be an intractable problem, which had escalated to violence, they were able to arrive at a practical issue that they could agree upon-the town needs some local economic development that is sustainable. Melinda Smith was the mediator in that case and she wrote a terrific case study of it. I think you can get people to agree on a practical problem that needs to be addressed from their different worldview perspectives and then work together to resolve that. Have they resolved the fundamental values differences between them? No. Have they learned how to work together on something? Yes. Does that help minimize the potential for conflict in the future? Perhaps. It depends.
Q: A lot of people in the west are skeptical of regulatory negotiation processes. What do you think about that? What do you say to them?
A: I recognize the issue. It is hard for me to have a lot of perspective on it because a lot of my life and work has been in the mid-west and we don't have a lot of the larger, critical issues that are going on in the west. I guess I would say that I have developed some confidence in consensus building and working on the practical problem. I think we have to try. We have to negotiate. Even though I was once quite skeptical about the merits of mediation.
Q: Was there a moment of transformation for you that made you think that this process might be work while?
A: I guess I can talk about it on a micro-level based upon an experience that I had in Madison, WI with a community to save a piece of land from development. There a really wide-ranging group of folks who came together with dramatically different ideas on how to use this piece of land. Some wanted to see a conservation, other wanted to see urban agriculture, still others wanted to see affordable housing and the neighbors immediately adjacent to the land wanted their informal park to stay forever. I have been working with this group now for four and a half years. And I have to say that I am not neutral to this group now. This is participatory action research, so I am right in the thick of it. Not only have we come to agreement on this 31 acre piece of land that is inside the city of Madison, but the group has achieved one of those classic mutual gains solutions in which there is conservation land, there is urban agriculture, there is the informal park, and there is affordable housing-all on this 31 acres of space.
A disparate group of people have come together, not only to see that the land not be developed but actually succeeded in acquiring the land and getting a fairly substantial sums of grant money to help them achieve their community vision. So I guess this is sort of a consensus building collaboration than a mediation per se. To me the transformative moment was that the community banded together and the city planning department made its proposal for a standard sub-division for this piece of land and the community threw them out of the process. Told them to go away. Then we went on about our business, raising funds, trying to save the land, trying to achieve our vision. We succeeded and now have engaged the city government on our own terms. They are according us a status on a level of respect that I would not have expected to see on the actions that this group took. This wasn't an intractable conflict. But what was so striking to me was the power of the group coming together and coming to agreement on what they wanted to do and how that transformed their relationship with the city.
I guess this brings me around to the topic of local knowledge, which is something that I have been thinking about a lot in relation to the knowledge base project.
I think one of the things that the mediation field has not done well has been that they have not listened to local knowledge and local stories and the importance of those things in resolving conflict. I have heard practitioners here and elsewhere say that they came in assuming certain things about how the mediation process should go. In the course of the process they had to dramatically revise their thinking as a function of what local people were telling them about how things should be resolved. So I think there is a lot for us to learn from what the people involved in the conflict feel is the important solution or the important response. We miss things by relying completely on techniques that have been devised to deal with conflict in the dominant culture.
Q: A lot of people, who are interveners, talk about how they are not responsible for the outcome, that they are only responsible for the process. And that local knowledge is ultimately the only thing that can determine outcome. But it sounds like you are suggesting that local knowledge should also determine the process to a certain extent?
A: I think so. When you are dealing with groups of people who have a very different epistemology, a very different way of knowing and understanding the world, you have to incorporate that in the process. Otherwise, I don't think you will get the fullness of their views represented at the table. The standard process that we use is a focus reflective pause. We need to embed this into mediations or into discussions with typical groups comprised of people from western culture. If you work with tribes, if you work with indigenous peoples, the focus reflective pause is part and parcel of how they do things. For us to take the typical western view of let's move forward, let's get agreement, let's not waste time, let's be efficient, let's move ahead, we run the risk of missing very important information or excluding people's voices from the process. I think that is a big contributor to intractability.
Q: Can you think of a moment in your work that has been particularly inspiring?
A: I teach dispute resolution, theory and techniques to graduate students. About half of my class comes from my department. The other half of my class comes from around the campus-people in environment studies, zoology, conservation biology, sustainable development, and water resources managment and land resources. I guess one of the things that really is inspiring to me is watching their understanding of the work they do, both become clearer and deepen as a function of studying conflict resolution theory and techniques. They all of a sudden have these tremendous insights into their own practice that I think will enable them to be better and more reflective practitioners, as well as be able to communicate better, to understand the people they work with better, and to help people arrive at better decisions on things related to land use, wildlife and natural resource management, sustainable development, conservation, all kinds of issues. For me, to see the light bulb go on over the student's head, which happens in every class at some point, that's a real thrill. When marginalized groups, or oppressed groups, or groups that have been excluded, or groups that have not had power, gain a voice, become empowered and in many cases prevail, that for me is really thrilling because so much of my work is motivated by concerns about equity.
Q: Can you think of an example of that?
A: Well I think this example of Troy Gardens that I was telling you about is one. If you can remember it was where the community banded together and threw the city government out of the process.
Q: Was that mediated? Or was that direct negotiations between the different parties?
A: It was direct negotiations. Now that I am there I don't mediate formally, but I do a lot of the work of connecting this group with the city government. I guess I see myself as intervening without mediating at a request of the community. As somebody said early today, not being the expert but offering up my expertise. I've found that to be pretty rewarding work.
Q: What lessons have you learned over the years, and what advice would you give to people?
A: The two most critical things you can learn are how to listen and how to shut-up. I think there are probably a number of mediators who would say the same thing. You have to have a high tolerance for tension and uncertainty as things unfold. I think you have to have a great deal of patience. These kinds of conflicts, these kinds of issues don't get resolved very quickly. So you have to be prepared to stick with something, especially if you are doing consensus building or collaborative processes around issues that appear to be intractable. I guess I haven't made a good distinction between that and mediation, and I guess I won't. You have to have a tolerance for being there over the long hall. It takes a lot of time, especially if you do the kind of work I do. It takes a lot of time to gain the trust of the community in which you work.
Q: One of the questions was how are intractable environmental conflicts different from the international conflicts that are getting so much attention?
A: They are different. I have to qualify this by saying that I don't work internationally, so you could be getting a very na ve representation of what is going on. I think the international conflicts that are going on now are things that have been going on not just for years or decades, but for centuries. And these are embedded in cultures and embedded in ways of life so much so that the participants may not even be able to think of themselves existing outside of the conflict. They may not be able to envision life without this conflict even though they may long for life without this conflict. I have trouble thinking of an intractable environmental issue that has gone on for that long. Certainly water rights issues in the west have gone on for a long time. Certainly there have been conflicts with the US government and Native American tribes for a long time over questions of land and land use.
I think maybe the environmental conflicts aren't embedded quite as deeply historically, just because this country is younger than many of the places where international conflict is going on. I don't think that that makes the environmental conflicts in the United States not intractable. Domestic environmental conflict tends not rise to the level of violence that international conflicts do.
I think international conflict commands this attention because people are dying. In the realm of environmental conflicts, we dispute just how terrible the things are that are happening. Is the loss of livelihood for loggers in the Pacific Northwest truly terrible? Well they can always find something else to do. Is the loss of the way of life for ranchers truly as bad as international conflict? For them, sure it is. I suppose they don't rise to that level of prominence. But what is going on there is really very serious stuff about the future of the US, the future of the world, in environmental sustainability terms. I think most people have not fully embraced it as the serious threat and the serious problem that it is. The passions, the worries, the fears and the concerns for the people who are participants in these conflicts are just as great. Threats to your way of life, threats to your identity-those kinds of things are really serious issues.
Q: Are intractable environmental disputes easier to resolve than international conflicts?
A: That is a hard question. Concerning international conflicts it certainly looks like every generation has to learn the lessons of the conflict and how destructive it can be for themselves. It's as if each generation has to go through that process. In essence the conflict persists throughout time, and what you are dealing with are individual disputing episodes. Those episodes can be more or less difficult to resolve but the underlying conflict is never really going to go away there. In the environmental realm, I think that you have some similarities to international conflict. You are dealing with issues of resource scarcity, and competing demands for resources that don't ever go away. So again you get those individual disputing episodes that you have to deal with. I really don't know the answer to the question. I don't think there is an answer to the question. It's something that I would have to give a lot more thought to.
Q: Can you think of an environmental conflict that you would have considered intractable that has been transformed or maybe even resolved?
A: I can think of environmental disputes. Environmental conflict? I don't think I want to go that far. The Kattrin County collaborative, an intractable environmental dispute, has reached a certain level of resolution. The resolution of that is that they developed some local industries that are not tied to outside sources. It is truly a locally based economy. Whether that is sustainable over the long hall remains to be seen. There is still conflict out their between ranchers, loggers, and environmentalists over the use of the land. In the Chesapeake Bay, there is a case of a waterman whose life is entirely dependent on fishing in the Bay and yet they were really sabotaging the health of the Bay by dumping garbage off their boats into the water. There was a faith based conflict resolution effort used there to, in essence, get the people to stop dumping garbage off their boats. To a certain extent that has worked. What the overall contribution to the health of the bay is; I don't know. But what it did do was bring a certain resolution to a dispute that had been persisting for about 15 years. I think there are other people who could come up with better examples of mediated solutions to environmental disputes. There have actually been movies made about them.
Q: Do you know what they are called?
A: Yes. The one about the Chesapeake Bay waterman is called "Between Heaven and Earth: The story of the Chesapeake Bay waterman". It was produced by Skunk films. A doctoral student from the University of Wisconsin Madison in the institute for environmental studies mediated the case. The Kattrin County collaborative has a couple different film versions. One is available through the National Association of Family and Community Mediation. That is a short version of it. They have a two part series called "The Visionaries" and it is in one of those. Melinda Smith, a mediator who ran the New Mexico center for dispute resolution, has since left it was the mediator in that case and since wrote about it in the Consensus Building Handbook. But she also loaned me a much longer version film that was made by, I think the New Mexico Public Television. They had a session following the airing of the film. Melinda might be able to clue you in on how to find that. Those are good films, good teaching tools.