ENVIRONMENTAL MEDIATION: BEYOND THE LIMITS APPLYING DISPUTE RESOLUTION PRINCIPLES TO INTRACTABLE ENVIRONMENTAL CONFLICTS


CONFLICT RESEARCH CONSORTIUM

Working Paper 94-50 February 1994

By Guy Burgess, Ph.D. and Heidi Burgess., Ph.D

Co-Directors, Conflict Research Consortium

University of Colorado at Boulder


Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: crc@cubldr.colorado.edu.


© 1994. Guy and Heidi Burgess. Do not reprint without permission.


INTRODUCTION

The successful application of environmental mediation and consensus-building techniques is limited by two factors -- the intractable nature of many environmental conflicts and the fact that the parties are unlikely to voluntarily agree to a settlement that offers them less than might be obtained by pursuing their interests in legal, political, or other arenas. This frequently results in destructive confrontations in which substantive issues are neglected amid a climate of recrimination and hostility. A strategy, which we call constructive confrontation, takes the environmental mediation field beyond these limits. It first requires efforts to limit the distracting effects of a series of problems -- confused interests, technical disagreements, misunderstandings, questions of procedural fairness, escalation, and polarization -- which overlay the core conflict. Next the parties need help in honestly and inexpensively assessing whether or not confrontations, with their associated power contests, offer more desirable alternatives to negotiated agreements. Once the power contests required to pursue these alternatives are completed, then the parties can return to the negotiating table in an effort to fine tune the settlement in ways which prevent potential win/win tradeoffs from going unrealized. This chapter develops four key ideas: 1) limitations to environmental mediation; 2) strategies for overcoming the overlying conflict problems; 3) techniques for lowering the costs of power contests needed to assess the parties' alternatives to negotiated agreements; and 4) negotiation in the aftermath of necessary power contests.

THE LIMITS OF ENVIRONMENTAL MEDIATION

Limit I: Intractable Conflict

The ability of environmental mediation, consensus-building, and related techniques to enable the parties to negotiate mutually-acceptable resolutions of environmental problems is limited, first, by the intractability of most serious environmental conflicts. These intractable conflicts may involve fundamental moral conflicts (such as those dividing the deep ecologists and the "fair use" movement) or high-stakes distributional questions over who gets what. In these cases the parties are unlikely to be willing to negotiate, since negotiation is usually seen as a way of forcing them to compromise their basic values. The parties are also unlikely to respond to defeat or forced compromise with acceptance and submission. Instead, they are likely to attempt to strengthen their resource base with the goal of reversing their defeat at the earliest possible opportunity.

The key to understanding this limit to successful mediation lies in the distinction between conflict and dispute. This is an idea that we have adapted slightly from John Burton's original insight (Burton, 1990, p. 1). Environmental conflict refers to long-term divisions between groups with different beliefs about the proper relationship between human society and the natural environment. In addition to the deep ecology/fair use conflict, other conflicts divide snowmobilers and cross-country skiers; stream-side and reservoir-based recreation advocates; hunters and those favoring biodiversity and "watchable wildlife"; solitary wilderness trekkers and mountain resort patrons; pro- and anti-growth factions; advocates of a "small is beautiful," low-consumption lifestyle and proponents of the more materialistic "good life"; and advocates of tight pollution control requirements based upon the belief that human life is priceless and persons wishing to take a hard look at the economics of pollution control.

Conflicts between these groups are played out in a seemingly endless series of incremental disputes concerning the enactment of specific policies. While the resolution of each dispute determines, for the moment and the place, the balance between competing positions, this policy balance remains a matter of continuing conflict in which a never-ending series of disputes lead to decisions which move social policy back and forth between competing positions.

This relationship between conflict and dispute is summarized in Figure 1. Here social policy changes through time are indicated by the arrow moving up and down in the center of the figure. When the social arrow is toward the top of the figure, social policies tend to favor, in this example, water development interests. An arrow toward the bottom of the figure indicates that the pendulum has swung toward policies which favor environmental interests. These policy swings result from (and follow) the settlement of individual disputes and may either affirm or change existing policies. This example shows the policy shifts following the resolution of five disputes -- the Three Forks Reservoir, water conservation, critical habitat, North Range diversion, and wilderness water. The specific arena (e.g., administrative action, litigation, legislation, electoral politics, and economic markets) in which these disputes were resolved is not shown. This long-term process of continuing policy dispute resolution is what we call environmental conflict (grey arrow at the bottom of the page).

Limit II: Power Alternatives to Negotiation

The potential success of environmental mediation and related techniques is also limited by the availability of better alternatives to a negotiated agreement (BATNAs). For a more complete discussion of BATNAs see Fisher and Ury's, Getting to Yes (1991, pp. 97-106). While persuading people to participate in an environmental mediation or other problem-solving processes is a challenge, getting them to agree on a settlement is an even bigger challenge. If mediation or related processes are carefully facilitated according to the principles outlined elsewhere in this volume as well as in the many other excellent publications in the field, remarkable progress can be made. Participants may even undergo what might be described as a conversion experience in which "evil" stereotypes, distrust, and malevolence toward an opponent are replaced with much more trust, cooperation, and benevolence. These processes can be very successful in pursuing opportunities for mutually beneficial compromise.

What these processes cannot do, however, is alter the basic fact that many of the interests of participating parties are inherently competitive and that often one party's interests can only be satisfied at the expense of another's. In other words, win/win solutions simply do not exist and cannot be created for all disputes.

This situation creates a mirage effect where participants in environmental problem-solving processes may amicably and sincerely work to achieve the best possible negotiated settlement. However, once the final settlement begins to emerge, participants will be asked by their constituents (if not themselves) if there are other arenas or power contests through which their interests might better be pursued and their opponents confronted. In other words, can they get a better deal by pursuing their interests in other forums? For example, they may be able to appeal directly to the regional administrator of a key government agency, take their opponent to court, lobby Congress to pass legislation which directly advances their interests, use their economic resources to buy what they want, or take their case to the court of public opinion. If any of the parties believe that they can get a better deal through any potentially viable alternative to a negotiated agreement, then they can be expected to try to do so. The negotiation process will then fail and the mirage of a draft settlement will vanish -- just as it appeared to be so tantalizingly close.

Put another way, mediation and negotiation are not techniques for altering the fundamental power relationships within a society, no matter how desirable that might be. The reason is that agreement is voluntary. If people don't like the settlement they can simply resort to the other powers that are available to them.

Occasionally conversion experiences associated with participation in these processes will cause one or more of the parties to redefine their interests in ways which are more charitable to opponents. While often highly desirable, such transitions toward more altruistic and socially responsible positions present a difficult scale-up problem because the conversion experiences of individual participants in the process are not likely to be shared by their constituents. In these cases, the participants are unlikely to be able to bind their constituents to the agreement and their constituents are likely to feel so betrayed that they will simply find new leaders. Thus, one of the most pressing problems for environmental mediators is the development of effective techniques for scaling up conversion experiences to encompass the larger constituency group.

This limit is summarized in Figure 2, which portrays the example of a relatively simple, hypothetical dispute between environmental and water development interests. The left-side of the figure lists alternative strategies through which environmentalists and water developers might seek to advance their interests. Graphically portrayed to the right of each strategy is a black square indicating the expected outcome, from the perspective of water developers and a grey circle indicating the outcome environmentalists expect. The graph indicates that developers believe there is very strong public support for water development and that that support will be translated into electoral victories at the federal, state, and local level. However, environmentalists disagree and think that they will be victorious in any electoral power contest.

The figure also shows that environmentalists think they can prevail in a legal challenge based upon the argument that the proposed project would threaten the habitat of several endangered species. Meanwhile, developers are counting on strong support from administrative appeals to political appointees in federal natural resource management agencies. Since both sides believe that they have alternatives that will yield much more favorable outcomes than the draft negotiated agreement, they can be expected to reject the agreement. Even the best environmental mediation and consensus-building processes are unlikely to succeed, in such instances. For mediation to work, the expected alternatives to a negotiated agreement for both environmentalists and developers would have to be much closer to the compromise negotiated position. Only in this case can the parties reduce transaction costs and uncertainties without really giving up a great deal. This possibility is explored in greater detail below.

BEYOND THE LIMITS

Mediation, consensus-building, and related techniques cannot be expected to resolve environmental conflicts or persuade people to abandon power contest alternatives to negotiated agreements. Three major areas within the environmental mediation field's understanding of conflict processes and intervention techniques can, however, if used appropriately, significantly reduce the destructiveness associated with many of these conflicts. We refer to this approach as "constructive confrontation." This approach recognizes that, while confrontations with associated power contests are inevitable, the frequent destructiveness of these confrontations is not. The constructive confrontation approach begins with an attempt to limit the destructive effects of what we call the "conflict overlay" problems. These problems, which overlay the conflict's intractable core, include, for example, misunderstandings, and the insidious dynamics of escalation and polarization.

The next area of potentially successful intervention represents a substantial departure from commonly-applied, alternative, environmental dispute resolution practices. Here steps can be taken to help the parties identify and pursue only those power contest strategies which truly offer better alternatives to negotiation. These efforts can also include steps to reduce the costs and overall destructiveness of power contests. Finally, there are cases where mediation and negotiation techniques can be used to fine tune the results of the inevitable power contests in ways which realize win/win trade-offs that would otherwise have been missed by power contests alone.

We believe that open acknowledgement of the inevitable and appropriate role of power contests in these conflicts is important. By acknowledging the inherent limits of mediation and consensus-building in altering power relationships, mediators will help advance the prestige of the environmental mediation field by reducing of number of instances in which mediation is oversold by people claiming that the field can deliver more than it actually can.

LIMITING CONFLICT OVERLAY PROBLEMS

The first step toward making inevitable environmental confrontations more constructive requires an understanding of the distinction between core and overlay components of conflict. At the core of the most serious environmental conflicts lie intractable conflicts over fundamental moral issues or high-stakes distributional questions. Overlaying and often obscuring this core conflict are confused interests, misunderstandings, disagreements over technical facts, questions of procedural fairness, escalation, and polarization. These overlay problems can become so severe that the decisions which resolve the conflict's many disputes are based upon overlay problems, not core substantive issues. The environmental dispute resolution field has already developed a number of techniques which, when properly implemented, can go a long way toward limiting the overlay problems. These techniques can be beneficially applied even in situations where the mutually-agreeable resolution of a dispute cannot be expected. Specifically, we believe that efforts could be concentrated in the following areas:

Confused Interests

As Fisher and Ury (Fisher, 1991 pp. 40-55) have observed, interests reflect the underlying goals and objectives of the parties to a conflict, while positions refer to the specific actions or policies the parties are pursuing in order to achieve those goals. All too often positions become the focus of the conflict and the parties fail to consider the possibility that their interests might better be served by pursuing different positions. What is less commonly recognized is that the interest clarification steps embodied in "principled negotiation" are still applicable to confrontational situations where successful negotiation or mediation is unlikely.

Misunderstandings

Misunderstandings arise whenever one or more parties develop an inaccurate image about the interests, positions, or actions of another party. This can arise as a result of unintentional miscommunication, stereotyping, or even deliberate disinformation. It can be combated with a number of effective communication techniques including, for example: 1) improved speaking skills, 2) sensitivity to likely points of misunderstanding, 3) active listening skills, 4) widely trusted, "blue ribbon" committees to investigate and report on the validity of rumors, 5) and advisory committees composed of opinion leaders willing to take the time needed to truly understand a complex issue.

Technical Disagreements

Core issues can also be obscured by 'tis/'tain't conflicts over issues amendable to resolution with generally accepted scientific research methods. What is needed is: 1) necessary funding, 2) skilled investigators, 3) a mechanism for insuring the analysis is worthy of the public trust, 4) a credible mechanism for demonstrating this trustworthiness to the public, and 5) an ability to explain results in non-technical terms.

This approach only applies to technically-resolvable issues. In cases with an irreducible element of risk and uncertainty, moral judgements concerning the acceptable level of risk become part of the core conflict. In this case, strategies for overcoming technical overlay problems need to focus upon providing an informed basis for acceptable risk judgements. These irreducible uncertainties and risk are so painful that it is common for the process to suffer "analysis paralysis" as people engage in a time consuming and inevitably fruitless search for certainty. The result tends to be de facto adoption of the default, business-as-usual alternative which could easily be among the least desirable.

Perceived Procedural Unfairness

The process must do more than make decisions which are, in fact, fair and wise. The process must also be perceived as fair. For example, well-established procedures coming out of the dispute resolution movement and the more general field of public administration provide excellent guidelines for limiting the conflicts of interest which are a major contributor to this problem (Carpenter, 1988).

Escalation and Polarization

At the core of the conflict overlay problem are the processes of escalation and polarization where one intentional or accidental provocation begets a stronger counterprovocation in an ever-intensifying loop. Escalation tends to produce five key transformations: 1) Focused, unlinked single-issue conflicts tend to become linked with a great many other conflicts, eventually polarizing the society into two hostile camps. 2) Isolated issues involving a relatively small number of people become widespread conflicts with almost universal public involvement. 3) More and more resources are committed to the prosecution of the conflict. 4) Efforts to persuade opponents of a position's validity, or work out mutually beneficial exchanges give way to efforts to force opponents to comply. 5) Efforts to pursue specific substantive objectives give way to the much more vengeful motive of simply hurting an opponent. For a more detailed discussion of escalation processes see Pruitt and Rubin's Social Conflict: Escalation, Stalemate, and Settlement (1986).

Escalation processes can be triggered and driven in a number of ways. The widespread tendency of people to personally attack and impugn the character of their opponents is one common cause. Anger and personal ego involvement can also make it much more difficult to plan and implement measured, rational confrontation strategies. The tendency of the media to focus its coverage on the actions of unrepresentative extremists drives the escalation cycle as well. The extremist who receives media coverage tends to become the basis upon which opposing groups develop stereotypes of each another. Also fueling the escalation spiral is the bargaining-chip syndrome which can lead the parties to make unreasonable and, therefore, inflammatory demands on the assumption that they will then have something to trade away. The problem is that the escalation spiral may lead to all-out "war" where the opponent's goal becomes total victory rather than mutually beneficial trade-offs.

There are also those who intentionally initiate an escalation spiral figuring that escalation is the best way to mobilize supporters. As escalation progresses the parties frequently note an increase in both the number and level of commitment of their supporters. They frequently fail, however, to note a corresponding (and often greater) increase in the level of support for their opponents.

Escalation is also driven by the fact that people simply enjoy sitting around with their compatriots and complaining about how their opponent is the source of all evil and, of course, they are the source of all virtue. Victory in one dispute is also often accompanied by celebrations which clearly reveal a lack of respect for and often ridicule of an opponent. Not surprisingly, this results in the loss of opportunities for conversion and conciliation, while simultaneously inspiring an opponent to try harder the next time.

The choice of power contest or confrontation strategies also has important implications for escalatory processes. Those which place a greater reliance upon forcing power tend to foster resentment and backlash while those which feature substantial efforts to persuade opponents are more likely to limit escalation. This issue is discussed in more detail below.

Finally, escalation is a true slippery slope -- it is easy to slide down and awfully hard to climb out. The dispute resolution literature has, however, developed a number of deescalation strategies, which can be quite helpful. (Susskind, 1987; Carpenter, 1988; Pruitt, 1986; Ury, 1991). In general, one should respond to provocations not with submission or counterprovocation, but by clarifying misinformation, avoiding the temptation of counterprovocations, making conciliatory gestures, and attempting to persuade opponents that your position is based upon general principles of societal welfare to which they ought to subscribe.

Figure 3 summarizes the relationship between the conflict core and overlay problems and shows the effect that existing dispute resolution techniques can have on limiting the size of the overlay, allowing the parties to better focus on the core substantive issues. The top circle presents a picture of a typical environmental conflict prior to successful intervention. Here the conflict core is surrounded by the five principle conflict overlays. The first objective of an intervention strategy which seeks to go beyond the limits of environmental mediation is to minimize these five overlays. The bottom circle depicts the conflict following successful minimization (but not elimination) of all conflict overlays -- so that the confrontation can better focus upon the underlying core issues.

CONSTRUCTIVE CONFRONTATION STRATEGY SELECTION

Extending the limits of environmental mediation next requires the continued development of interventions which help the parties make more enlightened decisions regarding the selection and implementation of specific power contests or confrontation strategies. This first requires an understanding of the crucial difference between forcing power and persuasive power. Forcing power is the quickest way for the parties to get their opponent to do what they want (assuming that they have the necessary power). Here the key is a credible threat which is so severe that opponents feel that they have no choice but submission. While this usually includes administrative, legal, or political efforts to mobilize the power of the state, it can also involve economic action, physical resistance, or efforts to foster public condemnation of an opponent.

Over the short term, forcing power is the fastest way to produce behavior change in an opponent. However, being forced to do something that one does not want to do inspires substantial resentment and often a backlash effect. While opponents may comply, they are also likely to attempt to build the power base needed to overcome the threat at the earliest possible opportunity. This is frequently accompanied by a clever search for loopholes which effectively allow opponents to avoid the required behavior after all.

The principal alternative to forcing power is persuasive power where the parties convert opponents to their point of view. While there can be complete conversion where an opponent becomes an ally, this is extremely rare and occurs very slowly. Partial conversion is more common, and, therefore, more important. Here the parties are at least able to persuade their opponents that their position is not outrageous enough to warrant intense opposition. While persuasion produces much more stable change, it occurs only when positions which serve the best interests of the community as a whole are advocated. This may include, for example, appeals based upon general policy making principles to which both sides adhere. While a set of universally accepted principles does not exist, the following seem to enjoy broad support:

Relationships needed to deal with problems in other areas should be maintained.

The general principles of majority rule with protection of minority rights should be followed.

Decisions should implement as many win/win tradeoffs as possible.

Transaction costs should be minimized.

Market mechanisms should be tempered by a social safety net.

Decisions should be made in a timely manner so that delays leading to an unexamined, default, business-as-usual decision are avoided.

Confrontation strategies which are based upon these principles are likely to be more persuasive than those based upon more transparently selfish criteria. While it would be unrealistic to expect to be able to eliminate the need for forcing power, the backlash effect can be reduced by coupling it with persuasive power wherever possible.

Social Power Hierarchy

The pursuit of more constructive confrontation strategies requires an understanding of the hierarchy of social powers. These powers ultimately determine how the many power contests associated with an environmental dispute will be resolved. In most cases this involves public sector decisions concerning the expenditure of public funds, the management of public lands, and government regulation of the private sector. In other cases it may involve the environmentally-related decisions of the private sector. The principal sources of power, ranging from the least to the most powerful, are listed below.

Administrative Power

In the public sector the first recourse is to administrative power. Here a party simply appeals to government officials with discretionary jurisdiction over their particular area of concern and asks them to make the desired decision in as persuasive and mutually beneficial way as possible. One must remember that these officials are likely to be constantly looking over their shoulders to make sure that their superiors approve sufficiently of their actions to reduce the risk of reprimand and reversal.

If the government official doesn't offer to resolve the dispute in the desired way, the party can always appeal up the hierarchy to higher-level career bureaucrats, political appointees, and, ultimately, elected government executives -- if the party thinks that this will yield a more favorable result. If not, the party can either appeal to higher levels of the social power hierarchy or accept the administrative decision and return to the bargaining table to see what win/win trade-offs can be worked out within the broad constraints of the administrative decision (see Negotiated Fine Tuning section below).

Litigation

If the parties believe that uncooperative administrative officials are in violation of applicable statutes, they can challenge administrative decisions in court. In some cases this may be a relatively straightforward process involving settled legal principles. Other cases may contain legal uncertainties requiring precedent-setting appeals to the higher courts.

Political Power

If the courts decide that the law, as currently written, does not support a particular position, the party's next alternative to consider is to use the political system in persuading legislative bodies to change the law. A first step can be to simply lobby the appropriate legislators at the federal, state, or local level. If parties find that they still don't have enough votes, the next step is electoral politics where they can try to elect more representatives who agree with them. In many jurisdictions there is also the option of putting the issue directly to a vote of the people through a referendum process.

Public Opinion

If existing public opinion as reflected through political action does not support a party's position, the next option is to attempt to persuade the public to change their opinions through some sort of educational campaign. If successful, this opinion change can then become a basis for renewed electoral campaigns and lobbying efforts.

Physical Resistance

If the above options fail, the only other option involves physical resistance, which may either be violent or nonviolent. This is likely to be a relatively futile task since it requires a direct challenge to both the popular majority and power of the state. It is also likely to foster resentment and backlash.

Private Sector Decisions

Contests involving the private sector decisions, economic markets, and private property provide another source of power which is somewhat separate from the public sector hierarchy discussed above. These contests start with efforts to persuade property owners to change their behavior. In a hypothetical example, environmentalists might ask ranchers not to shoot wolves attacking their livestock. In some cases ranchers may simply comply with the request. In other cases they may insist on being compensated for any livestock losses. If environmentalists have the money and are willing, they can simply pay them.

If, as is more commonly the case, the environmentalists don't have the money, then they can resort to the public processes in an attempt to deny ranchers the right to shoot the wolves. At this point the confrontation reverts to the public sector power hierarchy discussed above.

Implications

Since transaction costs tend to escalate as one moves up the power hierarchy, one goal is to use the lowest power level which is likely to be effective. This goal must, however, be balanced with the fact that success at higher levels tends to prevail over success at lower levels. At each level a failure to prevail may be traced to either an inherent powerlessness and general lack of support for a particular position or an inability of the parties to exploit their powers effectively. This suggests that before moving to the next higher level, the parties should make sure that they have the skills and the resources to use the system effectively.

One must also beware of the illusion of invincibility, especially at the earlier stages of a confrontation. Here parties can become convinced that they can't possibly lose and that the confrontation might actually be an enjoyable "blow-out" of the opposition. At this point it is quite easy to be lured into destructive (and quite possibly defeating) confrontations. Once involved in a destructive confrontation falling into what Kenneth Boulding called the sacrifice trap is easy (Boulding, 1978, p. 206). Here the parties may be unwilling to admit that their confrontation strategy has been ill-advised and that alternative strategies should be pursued. The problem is that such an admission is tantamount to saying that the sacrifices have been meaningless (or worse, destructive). Since nobody wants to do this, people tend to pursue destructive confrontation strategies much longer than they otherwise would.

Bitter-End Syndrome

The biggest problem associated with traditional power contests is what we call the "bitter-end syndrome." Here the parties may mistakenly conclude that they must pursue power contests (alternatives to negotiated agreements) to the bitter end. The fact is that they have to pursue them just long enough for both sides to be able to predict the outcome with a relatively high degree of confidence. In a few "toss-up" or precedent setting cases, this may truly require pursuing the issue to the bitter end. More frequently, however, one can narrow the differences between expected outcomes to the point where negotiated dispute (not conflict) resolution seems workable. This can be achieved through alternative or "mock" power contests. For example, a well-crafted, objective opinion poll might be able to resolve differences between the two sides over the probable outcome of an electoral power contest to the point where one party will conclude that elections don't really provide a better alternative to a negotiated agreement. Similarly, a key test vote on a relatively minor matter in a legislative sub-committee may reveal the balance of legislative power and persuade at least one side that this route does not provide a better alternative. The ADR field has pioneered the use of mock trials, so-called "rent-a-judge" programs, to predict the outcome of protracted litigation. While this technique has not been widely used in the environmental dispute field, it theoretically offers promise in a number of situations. Frank discussions with government administrators may also be able to help the parties to develop more accurate images of the probable results of administrative power contests. Focus groups can be used to gauge potential public response to a new idea, about which the public has yet to develop an informed opinion.

Figure 4 offers an illustration of the theory behind these mock power contests. Here the expected outcome continuum reveals that, following negotiation/mediation, water developers and environmentalists both believe that power contests will yield better results. They then have two alternatives through which the better results might be pursued -- the bitter-end path and (for want of a better name) the sweet-end path. While both paths lead to a convergence of expected outcomes, the sweet-end path is much shorter, less painful, and less expensive. It also leads back to negotiation where the decision can be fine-tuned (see next section). The bitter-end path leads to business-as-usual -- unnecessarily destructive power contests. This negotiation loop-back also allows the parties to reduce power contest uncertainties -- the risk that they might unexpectedly lose.

In Figure 2 the conclusion of power contests would have the effect of moving the water developer's boxes and the environmentalist's circles closer together. If the negotiatedagreement was then revised to be consistent with the new, more accurate image of each party's alternatives to a negotiated agreement then negotiation could become quite an attractive alternative.

Thus, the key objective of the power contest component of any constructive confrontation strategy is to help the parties obtain, quickly and at the lowest possible cost, more accurate estimates of their true alternatives to any negotiated agreement. Ideally the parties would use mock power contests to determine the short-term limits of their power and then use this information as a basis for negotiating the resolution of the current dispute. Here the hope is that the parties' differing images of their alternatives to a negotiated agreement will narrow to the point where negotiated resolution of the dispute is feasible. The parties would, of course, also be expected to continue pursuing long-term power building efforts aimed at enhancing their position in future disputes.

NEGOTIATED FINE TUNING OF POWER CONTEST OUTCOMES

The third and final component of the constructive confrontation program involves the negotiation of mutually acceptable solutions to dispute episodes. Here negotiation provides an alternative to the "bitter-end" syndrome. Left to follow their natural course, power contests tend to produce relatively crude results with many unrealized, win/win, trade-off opportunities. This phenomenon is summarized in Figure 5. For ten hypothetical issues associated with a water development dispute, the figure shows which issues would ultimately be decided in favor of environmentalists and which would be decided in favor of water developers. In this example, the water developers won some things that they didn't really care about and, similarly, environmentalists won on some issues that they thought to be relatively unimportant. This situation creates the possibility of negotiating win/win trade-offs in which both sides get more of what they want than they otherwise would. These trade-offs are shown by arrows in the figure. This approach pursues opportunities for mutually acceptable agreements that are dependent on, rather than independent of, power contest alternatives. In the figure these trade-offs are indicated with arrows.

CONCLUSION

Serious environmental conflicts tend to consist of highly intractable moral conflicts or high-stakes distributional debates over who gets what. The result is that, in many instances, negotiation of a mutually acceptable resolution of the conflict is simply not possible. Environmental mediation and consensus-building are also limited by the fact that nobody is going to agree to a negotiated settlement if they think that better alternatives are available to them through power contests. Yet steps can still be taken to make these inevitable confrontations more constructive. These steps include, first, reducing the conflict "overlay problems" associated with confused interests, misunderstandings, technical disagreements, questions of procedural fairness, polarization, and escalation. Second, a number of steps can help the parties select and implement more constructive power contest strategies which limit the bitter-end syndrome. Third, the relatively crude outcomes of inevitable power contests can create important opportunities for the negotiation of mutually desirable win/win trade-offs. These trade-offs would adjust the outcomes of the power contests for the best possible results for all while still recognizing the newly established power relationships.

BIBLIOGRAPHY

Burton, John and Frank Dukes (eds.). Conflict: Readings in Management and Resolution. New York: St. Martin's Press, 1990.

Boulding, Kenneth Ecodynamics. Beverly Hills, California: Sage Publications, 1978.

Carpenter, Susan and John Kennedy. Managing Public Disputes. San Francisco: Jossey-Bass, 1988.

Fisher, Roger and William Ury. Getting to Yes, Negotiating Agreement Without Giving In. New York: Penguin Books, 1991.

Pruitt, Dean and Jeffrey Rubin. Social Conflict: Escalation, Stalemate, and Settlement. New York: Random House, 1986.

Susskind, Lawrence and Jeffrey Cruikshank. Breaking the Impasse: Consensual Approaches to Resolving Public Disputes. New York: Basic Books, 1987.