S. Nolon on Mediator Role Confusion in Siting Disputes

Sean Nolon (Vermont) posted his most recent article on SSRN.  The title is: Second Best Practices?: Addressing Mediation’s Definitional Problems in Environmental Siting Disputes.  The
article looks at two environmental case studies where interested parties served mediative functions and explores the implications for the concept of mediator neutrality.  Professor Nolon proposes that this practice has value, but argues that these interested parties should be referred to as “quasi-mediators.”

Here is the full abstract:

This article explores the potential value of interested parties who serve a mediative function in environmental siting disputes and whether they meet the definitional requirements to be called mediators. For almost forty years, local agencies have relied on mediators to manage contentious adjudicative decisions such as the siting of facilities. Who qualifies as a mediator, however, is not always clear. According to some best practices, environmental mediators should be highly trained and experienced professionals who do not have a stake in the outcome of the decision. This combination of experience and lack of interest in the outcome offers the greatest assurance that the mediators will be impartial process managers who can maintain a balance of power and guard against inappropriate substantive bias in the outcome. However, in some successful siting negotiations, interested parties have taken responsibility for managing the process as a mediator and have assumed the title of the mediator. Labeling these interested parties as “mediators” raises many of the definitional problems confronted by mediation in general. While interested parties can and do perform valuable mediative functions in many disputes, there is also a danger that their bias can lead to corrupt results that harm the parties as well as promote societal misperceptions of mediation. This article presents two case studies where interested parties played the role of a mediator in contentious siting
decisions and explores whether the label of “mediator” is appropriate.  Interested parties can mediate siting decisions; however, calling them “mediators” raises problems for the instant dispute and for the general understanding of mediation. To the extent that participants afford mediators elevated status, this comes from a mediator’s neutrality and talent. By casually referring to unqualified individuals as mediators, participants are, at best, in danger of wasting time in poorly designed and managed processes and, at worst, vulnerable to corrupted outcomes. The author suggests that labeling these interested parties as “quasi-mediators” can clarify some of the confusion surrounding the expectation of mediators while taking advantage of collaborative capacity among disputants.

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