To Mediate or Not to Mediate, that is the Question

 

Marcia Caton Campbell

Assistant Professor, Department of Urban and Regional Planning at the University of Wisconsin-Madison

Interviewed by Julian Portilla, 2003


 

A: 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 negotiate or mediate out 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 would be better for them to pursue, when they are interested in establishing things like their rights. The field is very clear now, I think, that mediation is not good for establishing the rights of parties or of 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 the 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. The city 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 also not a solution, because the very physical space is sacred. And building a bridge over them wasn't really an option, but still would 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 there is the identity of the people in the pueblo.

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Q: Are you saying that something like that shouldn't be mediated, that there shouldn't be some process there, that it 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 that 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 just 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, fundamental value differences, threats to identity and so on — and, say, a conflict about where you are going to site a landfill (assuming that you are not trying to site it in a sacred space). A conflict about where you are going to put a 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 about running the highway through a local 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 come to agreement about.

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Q: 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 really clear statements of societal values. It does not mean that you get the right statement in the law 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 the 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.