Mediation As a Means to Resolve Environmental Disputes: An Appraisal

By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Introduction

Disputes relating to environmental issues are becoming alarmingly rampant owing to the increased impact of direct and indirect human activities on the environment.

It is expected that the world will move toward an extended period of contention encompassing a wide array of global environmental issues soon. These concerns revolve around matters such as depletion of the food supply, water scarcity, biodiversity loss, and several other concerns associated with the irreverent use of the environment[1]. Coupled with oil mining and agricultural exploration, environmental disputes are slowly but surely becoming major contributors to violence and conflicts around the world[2].

The resolution of disputes is just as old as the existence of disputes themselves. Owing to the transnational and international nature of environmental conflicts, conventional modes of dispensation of justice and resolution of conflict would appear to be a greater evil, with problems of time wastage, jurisdictional and venue discourse, and a host of other challenges, hence the need for alternative methods of resolution of environmental conflicts[3].

This article will examine environmental mediation, the procedures and stakeholders involved in it, as well as the challenges involved in environmental mediation[4].

An Examination of Environmental Mediation

Environmental mediation is depicted as a process by which representatives from environmental groups and/or government agencies come together with an impartial mediator to negotiate and reach a binding resolution for a specific environmental dispute.[5]

Environmental mediation, like all other forms of mediation, is facilitated by a neutral third party, known as the mediator, who facilitates a negotiated settlement between two or more conflicting parties[6].

Participation in environmental mediation is entirely voluntary for all involved, and parties can choose to withdraw from the process at any time. The resulting agreement is also voluntary, with the parties taking ownership of the mediated agreement.

Environmental mediation also enjoys the advantages of traditional mediation, such as speed, cost-effectiveness, party-drivenness, and confidentiality, despite the existence of traditional disadvantages such as difficulty in enforcement of awards and difficulty in reaching an agreement amongst parties that fail to act in good faith or are less desirous of an amicable agreement[7].

Unlike traditional mediation, however, environmental mediation usually involves way more than two parties, lending the conflict resolution process an air of complexity and sensitivity, with some conflicts involving ten parties and more[8].

Parties with vested interests also change throughout the development of the conflict and resolution process. The reasonable conclusion is that parties that begin the process differ from the concluding parties because, where the issue becomes subject to more public attention, additional parties may come together and express a desire to be included in the ongoing mediation process, and more often than not, this is a rule rather than an exception[9].

Similarly, assessments of facts related to the impact of an environmental action are frequently subjects of contention as groups, the general public, and even researchers vary regarding the fundamental effects of the act in question. The default responsibility confirmation falls on the government agency that holds administrative authority over the action[10].

Interestingly, decisions reached through environmental mediation more often than not have irreversible consequences for the environment, and the possible implication of these decisions on the environment contributes to the complexity and intensity of the deliberations[11].

The Alaska Interagency Environmental Streamlining, Apalachicola-Chattahoochee-Flint River Collaboration, NOAA Fisheries Enforcement Summit, and Scattered Apples Mediation are all examples of the application of Alternative Dispute Resolution for environmental conflicts[12].

Procedure in Environmental Mediation

The process involved in environmental mediation is similar to traditional mediation, albeit adapted to the peculiarities of the nature of the dispute and the parties involved.

The first step is to identify the environmental issues at the centre of the dispute and the stakeholders involved, including environmental groups, business entities, government agencies, and any other relevant parties. There is also a need to select the mediator, who must be a neutral third party[13].

Ground rules and setting of agenda are to be done at the first meeting by the appointed mediator, who is expected to explain the mediation process to the parties involved to establish an open atmosphere that can facilitate effective communication amongst parties[14].

When parties have been heard and clearly allowed to air their views and any concerns they might have, negotiation is initiated, and introductions into discussions regarding compromises and concessions are introduced, in joint and private sessions where necessary.

The document that summarizes the agreement between all the parties is drafted, and parties are afforded equal opportunity to review the document before it is voluntarily agreed to and executed with a clear implementation plan.

A clear example of this is the Indus Water Treaty between India and Pakistan. In this case, both nations moved away from historical claims and opted for a new agreement grounded in technical and functional considerations rather than political ones. With the World Bank serving as the neutral third party, it presented several options to settle the dispute, but a final consensus was not reached. Ultimately, the World Bank proposed a division of the Indus Basin, allocating the western tributaries (Indus, Jhelum, and Chenab) to Pakistan and the eastern tributaries (Satluj, Ravi, and Beas) to India. India accepted the proposal, and Pakistan agreed with qualified acceptance[15].

Despite the commendable nature of environmental mediation, there are, however, several challenges posed by the departure from the conventional litigation process.

Challenges of Environmental Mediation

One of the major challenges of environmental mediation is the dynamic nature of the parties involved. This challenge can be traced to the fact that environmental disputes are largely public in nature, involving many interested and affected parties. Environmental disputes typically encompass multiple stakeholders with diverse interests, including government agencies, businesses, environmental groups, local communities, etc. Aligning these varied interests may prove difficult.

Additionally, the more the process extends, the more parties who have interest indicate their desire to be joined, thus constantly affecting the dynamics of the procedure and introducing new variables and considerations[16].

The lack of consensus on data and the calculable scientific implications of certain environmental impacts may lead to disagreements that may arise due to scientific uncertainties about the environmental impact of certain actions[17].  This is because likely outcomes and consequences are tied to variables that lack consistency,, and the implication is that a change in a variable would result in a change in effect. This means that the facts and data being presented by a party as the likely effect of the action of another party are not ironclad and are likely to be countered by the other party, who would also be able to provide scientific backing to its data set, albeit conflicting.

There is also the existence of the fact that environmental issues often attract public attention and political scrutiny. These public and political pressures can influence the mediation process and make it challenging for parties to find mutually agreeable solutions[18].

Another challenge of environmental mediation is that although parties are expected to have an equal stake in the mediation process, which ought to be guided by the rules of impartiality, there is also the possibility of the existence of some forms of duress. For instance, where there is a conflict between two communities and a community clearly has the upper hand in terms of the benefits it brings to the other or by virtue of the strong influence that it possesses, it is unlikely that the community with less to lose would be willing to submit to a level playing field, fully aware of the power it wields.

Conclusion

Environmental conflicts can be volatile in nature and require skill and finesse to prevent escalation. Due to this, environmental mediation founded on neutrality, confidentiality, and equality of parties is vital for the effective resolution of contemporary conflicts arising from scarcity of resources and climate change, as these conflicts have the potential to affect the peace and stability of not just party communities or nations but the world as a whole.

Keywords: environmental conflict, dispute, mediation, environmental mediation, mediator, alternative dispute resolution.

Snippet: Environmental conflicts can be volatile in nature and require skill and finesse to prevent escalation. Owing to this, environmental mediation founded on neutrality, confidentiality, and equality of parties is vital for the effective resolution of contemporary conflicts arising from scarcity of resources and climate change.

This Article Was Written By: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN, is the Managing Partner of O. M. Atoyebi, S.A.N. & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Environmental law and jurisprudence and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng   

Contributor: Pwaveno Ditto

Pwaveno is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Environmental law.

She can be reached at pwaveno.ditto@omaplex.com.ng

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[17] Ibid.

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