402/96 - 19 e PVI Division 402

Environmental protection, Conservation

of Natural Resources, Dissemination of
Appropriate Technologies (GATE)

Environmental Conflict
Management

An environmental policy instrument in

developing countries
Division 402
Environmental Protection, Conservation
of Natural Resources, Dissemination of
Appropriate Technologies (GATE)

402/96 - 19 e PVI

Environmental Conflict
Management

An environmental policy instrument in

developing countries

Eschborn 1996
Publisher:
Deutsche Gesellschaft für
Technische Zusammenarbeit (GTZ) GmbH
PO Box 5180, 65726 Eschborn

Division 402, Environmental Protection,

Conservation of Natural Resources,
Dissemination of Appropriate Technologies (GATE)

Pilot Project Institutional Development in Environment

Wachsbleiche 1, 53111 Bonn
Tel.: (+49) 0228 98533-0 / Fax: (+49) 0228 98570-18
E-Mail: gtz-pvi@t-online.de

Author: W. Hamacher

Responsible: W. Hamacher, S. Paulus, B. Winkler

Layout: I. Borucki
2TGHCEG

Since the beginning of the 1980s, as part of development cooperation (DC), the Federal
Republic of Germany has stepped up support to partner organizations in developing
countries for solving environmental problems. During this time it has become clearer that
because of these problems’ complexity, their multi-sectoral character and the number of
actors involved - all with differing interests - the institutional framework would have to be
more carefully examined. Thus for several years GTZ has increased capacity-building
efforts in the environmental sector, both aimed at developing institutional structures and
an effective range of instruments for environmental policy. Not only at the United Nations
Conference for Environment and Development (UNCED 1992) but also within the
framework of the OECD Development Assistance Committee, the significance of
environmental policy was emphasized; and support was called for to assist developing
countries in consolidating institutional structures and local capacities for solving
environmental problems. To this may be added the development and application of
alternative methods for resolving environmental disputes.

The present contribution offers an overview of various conflict management (CM)

procedures and their application within the environmental sector. These procedures have
the common aim of attempting to solve environmental conflicts before they turn into legal
disputes. They produce alternative solutions acceptable to all parties to the conflict -
sometimes by means of a neutral third party. The positive experience of industrialized
countries lends credence to the assumption that these "Alternative Dispute Resolution"
(ADR) techniques may also be relevant in developing countries. In the process, novel
legal and administrative regulations are suggested, which when applied and possibly
institutionalized, may serve to supplement the existing range of instruments. This
contribution is offered primarily to professionals who are planning or implementing
environmentally-related projects in DC; it is intended to stimulate the greater integration of
CM instruments into such projects as part of the overall environmental-policy range of
instruments. We also hope to interest professionals and decision-makers from developing
countries who would like an overview of cooperation possibilities in this field and would
like to familiarize themselves with the current state of discussion in German DC
institutions. The focus of this contribution is on technical cooperation (TC).

The considerations presented here constitute one of the GTZ key activity areas in the
scope of the supra-regional pilot project "Institutional Development in Environment" which
is being implemented by the GTZ under a commission from the German Federal
Government with the aim of increasing the integration of participative and process-
oriented elements into the promotion of environmental institutions. The present
contribution is based on the results of an international workshop which GTZ held jointly
with the World Bank and the Swiss Academy of the Environment in November 1995, in
addition to training courses in developing countries and related literature. We would like to
take this opportunity to thank all participants most warmly.

Bonn/Eschborn, February 1996

Dr. Hans Peter Schipulle Dr. Wolfgang Morbach

Bundesministerium für Wirtschaftliche
Zusammenarbeit und Entwicklung (BMZ) (German
Federal Ministry for Economic Cooperation and
Development)
Division 224 (Environment, Resource
Protection and Forestry)
Deutsche Gesellschaft für Technische
Zusammenarbeit, (GTZ) GmbH
Division 402 (Environmental Protection,
Conservation of Natural Resources,
Dissemination of Appropriate Technologies)

I
%QPVGPVU

Preface I
Table of contents II
Diagrams and graphics III
Abbreviations IV
Summary V

1. The significance of alternative conflict management for development 1

cooperation

2. Conflict management as an integral part of effective environmental 4

policy: experience with conflict management procedures
2.1 Current situation in the USA 4
2.2 Varieties of conflict sources 6
2.3 Advantages of conflict management procedures... 7
2.4 ...and the conditions they require 8
2.5 Conflict management procedures 9
2.6 Building blocks and the course of a conflict management procedure 10
2.7 Evaluation of conflict management procedures by participants 16
2.8 The content of negotiated settlements 19
2.9 Qualifications of a mediator 20

3. Environmental conflict management and development cooperation 23

3.1 The context 23
3.2 Institutional framework 25
3.3 Intercultural exchange 26
3.4 Operational planning 28

4. Approaches for development cooperation 30

4.1 Principles of cooperation 30
4.2 Partners in cooperation 31
4.3 Phases and key activity areas 32
4.4 Cooperation among development cooperation institutions 36

5. Concluding remarks 38

Selected literature 39

Annexes

1. An example of procedural rules of order 1

2. An example of correcting informational imbalances 3
3. Conflict management procedures 4
4. Formulation of issues in conflict analysis 9
5. Varieties of advisory interventions 10

Division 402 publications to date 11

II
&KCITCOUCPFITCRJKEU

Box 1 Definition of conflict management

Box 2 Varieties of conflict sources

Box 3 The continuum of conflict management

Box 4 Procedural steps in mediation

Box 5 Conducting interest-based negotiations

Box 6 Negotiation package

Box 7 Legal obligations of participants to the negotiated settlement

Box 8 What does "power" mean?

Box 9 Mediator typology

Box 10 Conflict management in Indonesia

Box 11 Socio-cultural framework conditions in Indonesia

Box 12 Communication policy in Benin

Box 13 Institutionalization components

Box 14 Preparatory phase

Box 15 Planning phase

Box 16 Implementation phase

III
#DDTGXKCVKQPU

ADR Alternative dispute resolution

BMZ Bundesministerium für Wirtschaftliche Zusammenarbeit und Entwicklung

(German Federal Ministry for Economic Cooperation and Development)

CIM Centrum für internationale Migration und Entwicklung

CM Conflict management

DAAD Deutscher Akademischer Austauschdienst (German Academic Exchange

Service)

DC development cooperation

DSE Deutsche Stiftung für internationale Entwicklung (German Foundation for

International Development)

FC financial cooperation

GTZ Deutsche Gesellschaft für Technische Zusammenarbeit, GmbH

IDE Institutional development in environment

NGO non-governmental organization

OECD Organization for Economic Cooperation and Development

TC technical cooperation

UNCED United Nations Conference for Environment and Development

WIP waste incineration plant

IV
5WOOCT[

In industrialized countries, parts of the population have come increasingly to resist

environmentally-relevant activities such as the construction of waste disposal plants. This
resistance brings on a sort of decision-making crisis in many environmental-policy sectors
today. The source of such disputes lies in part in the actual substance of the decisions,
but it also lies in the decision-making process, which often lacks transparency and
consensus. Without new methods of citizen-participation, alternative dispute resolution
(ADR) procedures, and other participatory negotiation methods which permit innovative
development approaches and nurture social acceptance, the transition to sustainability
that is so globally called for will hardly be possible.

Since the start of the 1970s in the USA - and later in other countries as well - "alternative"
conflict-resolution procedures were developed and applied with considerable success to
supplement traditional decision-making procedures for the resolution of environmental-
policy conflicts. The various procedures aim to bring together all interested but opposing
parties to solve problems jointly: to "negotiate" a solution acceptable to all. In this way it
has been possible to produce options that were in both nature and extent beyond the
sphere of administrative or judicial decision-making.

The hallmark of these procedures is lack of formality, which allows for optimal adjustment
to the needs of the opposing parties:

First, there are procedures for cooperative decision-making which take place without a
mediator (third party not involved directly in the dispute).
In the case of procedures taking place with third-party support, a third party intervenes to
assist the negotiating partners. This assistance may be psychological, procedural, or
substantive in nature:
Thus, team-building contributes to the formation of relationships.
Or a third party may assist with design and implementation of a (not particularly polarized)
negotiating process, as in facilitation. This person may even be a party to the conflict, but
s/he must exercise impartiality in regard to the issue being negotiated.
Mediation - surely the best-known procedure - is basically a kind of procedural support. It
is used when conflicts are highly polarized and negotiations have reached a stalemate or
have not even begun.
Substantive support may be provided through Technical Advisory Boards.
Decision-by-a-third-party procedures are also strongly differentiated. What they share is
that the "negotiation" of the adversaries about agreement is no longer central, but rather
the unequivocal recommendation or the binding or non-binding (arbitrated) decision.
Occasionally, arbitration and mediation may be combined.

Most of the parties involved experience such procedures as positive. Reservations often
crop up when people (rightly) perceive the procedures as a discredited instrument for
procuring acceptance. The dissolving of mistrust between state and society as well as the
executive’s openness to any outcome are therefore important building blocks for success.
Although most experience with alternative conflict management procedures in the
environmental sector has been gathered in industrialized countries, there is much to be
said for applying it in developing countries: institutional weakness, inadequate
environmental policy, a lack of regulatory legislative instruments, deficiencies in
enforcement, unclear lines of responsibility and inefficiency on the part of administrations
and courts all allow negotiated settlements to appear as a true alternative, particularly,
too, because consensus-orientation is a tradition in many developing countries and is
generally applied in the resolution of conflicts in any case. Experience so far with
alternative methods of conflict management in various developing countries has also

9
shown that there is considerable creative potential for overcoming environmental-policy
conflicts.

Development cooperation projects often take place in the charged atmosphere of

environmental-policy conflict. Such projects usually depend on the active participation of a
large number of actors, but at the same time they must incorporate the divergent interests
of these same actors. Alternative conflict management procedures are of increasing
relevance to development cooperation. Determining factors in regard to points of
intervention for cooperation in this field are the questions of the requisite framework
conditions and the acceptance and viability of methods developed and primarily applied in
Western cultures. In this regard, the simple transfer of conflict management theory to
practice in developing countries is likely to be counterproductive: mediator-supported
negotiations such as mediation procedures do indeed take place there, but are rarely
uniform in regard to procedures and mediator role. The decisive question is not,
therefore, how procedures and methodologies may be directly transferred from one
country to another, but rather: "What works in a given situation? To what extent may
traditional dispute resolution procedures in developing countries be applied, further
developed, and interfaced with ’modern’ procedures in regard to the environmental
sector?"

For development cooperation the challenge is to initiate and see the process through,
using traditional, locally-tested methods. At first, pilot efforts may be supported, but in the
medium term, institutionalization is the aim. For this, the necessary process-oriented
support requires flexible and iterative planning. And every imaginable activity involved in
such a process presupposes, of course, a comprehensive understanding of the "conflict
culture" of the respective country. An exact analysis of the participant structure and the
organizational landscape is necessary as well, even though the political sensitivity of the
topic and its cultural implications prescribe a solely catalyst role for development
cooperation. In the long term the application of conflict management procedures goes
beyond the immediate resolution of disputes to a changed participant culture and to
increased "ownership."

Experience so far also shows that such processes develop considerable momentum of
their own and may possibly require new forms of support. It remains to be seen to what
extent the existing range of technical cooperation instruments may serve a broader and
more appropriate application of such methods in the environmental sector in the long run.

9,
 The public must be viewed as a resource,
not as an obstacle

1. The significance of alternative conflict management (CM) for

development cooperation (DC)

Wherever people live together in societies there are disputes. Societies do not differ in
that in some there are disputes and in others not: they differ only in the intensity of conflict
and the manner and modalities of dealing with it. The same is true of environment-related
disputes, so it is not surprising that with the growing significance of environmental and
resource protection environmental conflict is on the rise. There are many reasons for this.
In developing countries, where the connection between living conditions and the condition
of natural resources is close, the consequences of resource utilization often make
themselves directly felt. In industrial countries the causes often lie in the unequal
distribution of benefits and risks - above all with large development projects - in the
perceived threat to the quality of life on all levels, in the difference between the views of
experts and ordinary people (often heightened by disagreement among the experts
themselves), and in the problem of dealing with uncertainties and residual risks.

A frequent result is that environmental decisions encounter resistance by those affected

and are, in some cases, even challenged in court. The question arises as to why there is
growing resistance vis-a-vis state interventions particularly in the environmental field and
thus presents a challenge to every political system.

An answer to this question must take two processes of change into account, which
appear in industrial and developing countries with varying emphasis and lapses in time:

r The future-orientation of environmental policy decisions

The elements of policy have indisputably become more complex. In the face of
growing global and regional danger to the environment (catchword: "risk society"), the
question arises as to whether and to what extent existing structures and decision-
making processes ensure that environmentally relevant decisions are in the best
interests of the entire society with respect to quality of life and survival itself. At the
forefront are questions concerning the acceptability of risks, of short- and long-term
consequences of political decisions or the lack of them, and the incorporation of these
interests into the political-administrative system with an accommodation of diverging
interests through concrete decisions.
It is precisely in the environmental sector that the discrepancy between society’s short-
term, here-and-now-oriented perception of time and the necessity of coming to terms
with the long-term results of decisions is most acute. Solutions to environmental
problems must to be complex enough to be effective, and new methods of reaching
environmental policy decisions will need to be future-oriented.

r The legitimacy of environmental policy decisions

The shift of emphasis observable in all societies from the legislative to the executive
(and thus to administration) heightens in equal measure the problem of legitimizing
(environmental) policy decisions and the problem of their complexity. The more
decisions are made on the administrative level, the less accountability there is, and
thus the question of substantive and formal legitimacy remains unanswered: the
necessary process of representing various interests in political decision-making either
does not take place or takes place only to a limited degree.
1
 This has considerable effects on coming to terms with complex environmental
problems. In addition to the technical, scientific dimension, these problems have a far-
reaching social dimension as well. Information on this social dimension is not
automatically available in advance, but often surfaces only during the decision-making
process. Administrative procedures to prepare for and take decisions must attempt to
deal with both factual and social complexities. Only altered procedures can make this
possible - procedures that are both transparent and participatory. The quality of a
decision - its good sense or the lack of it - thus depends less on the decision actually
taken than on the reasonableness or correctness of the procedure leading up to it: only
through participation correct decisions can become socially equitable as well.

Alternative dispute resolution (ADR) - a process developed chiefly in the USA - serves as
an example of the above changes in the decision-making process in regard to
transparency, participation and representation of all interested parties as well as
constructive conflict resolution. Their application confirms the two trends in the
environmental sector described below, which are also detectable (if with some delay) in
Europe, but which will in the long term make their appearance world-wide:

From sovereign, unilateral decision-making

Õ to cooperation and consensus

From after-the-fact courting of acceptance

Õ to communication and cooperative conflict resolution

In the USA, new forms of conflict resolution in the environmental sector have been
developed and applied since the start of the 1970s. Based on experience in divorce and
separation counseling, in the field of perpetrator-victim compensation, and in job-related
confrontations at the workplace, disputes should be resolved through negotiation, if
possible through consensus among the adversaries. Even though the original motive for
finding new, "alternative" forms of conflict management (CM) may have been the
overburdening of the courts, today they belong in the USA to the established range of
instruments for resolving disputes in the environmental sector. The reasons for their
increasing success and application will become clear in this paper through a closer
examination of CM potential.

At the forefront are the following premises:

• A consensus solution resulting from dispute resolution has better prospects for
implementation than does a decision which results in winners and losers.
• The joint search for solutions strengthens a relation of trust among all concerned and
prevents policy strangulation when the state is one of the conflicting parties.
• Participation creates competence: citizens see themselves as the subject and not just
the object of policy and administrative decisions.
• In contrast to judicial proceedings, all parties may actively influence the form the
solution takes.

In developing countries, where environment and natural resources are becoming a

decisive factor in the development process, alternative CM procedures have considerable
relevance in environmental related conflicts. Environmental and resource-utilization
conflicts are becoming more and more significant in development and investment
projects. These conflicts often hinder the development process - especially when they
touch on the survival of affected groups. The environmental sector of developing

2
countries is thus often marked by sharp conflict. In many developing countries,
institutional weakness - such as deficient environmental policy, lack of regulatory
legislative instruments, inadequate enforcement, unclear accountability and inefficiency of
administration and judiciary - compounds the problem.

Many pilot applications of alternative CM procedures in developing countries underline

their practical relevance. In many cases it is possible to harness the traditional CM
methods of the respective culture: how and under what circumstances is one of the
central issues of this paper. The attempts of various developing country governments
have already reached the point at which the institutionalization of alternative CM
procedures becomes relevant.

From the development-policy point of view, there are also a number of good reasons for
paying more attention to alternative CM procedures: on the one hand, experience with
(failed) large projects in developing countries shows that potential conflicts were not
adequately anticipated. 1 On the other hand, the German Federal Government’s criteria
for promotion 2 and the international debate on "good governance" have lent strength to
discussion about modernizing the state. The key terms are: decentralization,
administrative reform, participation, pluralism, emphasis on cooperation, and a new image
of the state as a "service organization." Alternative CM procedures take on a central role
in this regard.

Thus the issue is raised: to what extent should the development and strengthening of
capacities for environment related conflict-resolution be the subject of development
cooperation? Considering the status of problems and applications described in some
developing countries, it is amazing that alternative CM procedures haven’t long since
found ready acceptance within technical cooperation (TC). Indeed, German TC has been
promoting governmental and non-governmental environmental institutions for more than
ten years, but with focus on technical projects and operational-level measures. However,
environmental projects have not only a technical but above all a social component. By
nature they often involve conflict and are complex and marked by a number of divergent
interests.

TC projects in the environmental sector often operate in this atmosphere without the
ability to react appropriately to it. Alternative CM procedures could offer relief as one of a
number of participative instruments. Consideration of how this issue might become a part
of TC gave rise to the present paper, which seeks to define more precisely a possible
field for cooperation within the CM sector and thereby in particular to reflect the TC role
that emerges, given the special complexity and sensitivity of the issue.

1 Narmada in India and Arun III in Nepal represent in this case a number of similar
development projects.
2 Public participation, market economy and the development orientation of
Government activities are above all worthy of mention in this connection.

3
2. Conflict management (CM) as an integral part of effective
environmental policy: experience with conflict management
procedures

2.1 Current situation in the USA

It is hardly possible any longer to get a general overview of alternative conflict

management (CM) procedures in the USA, which pioneered them. The different forms of
procedures (e.g., in respect to the influence exercised by a third party) and the fields of
application have multiplied. The major form used is mediation, in which a third party
supplies relatively intensive procedural support. 3 In spite of these variations, conflict
management may be generally defined thus:

Box 1
Definition: Conflict Management
Conflict management (CM) procedures are more or less structured processes,
attempting the joint resolution of anticipated or existing conflicts before reaching
the threshold of juridical confrontation by involving all concerned, including, if
need be, a neutral third party (mediator).

The only comprehensive study of the practical application of mediator-supported

negotiating processes in the USA was published in 1986. It summarized a decade of
experience in an analysis of 161 cases, 4 categorized as site-related procedures (71% of
the cases) or policy-dialogues 5 (29%). A more thorough differentiation of both of these
types of procedures reveals, however, the broad spectrum of situations that may be
supported or resolved with the aid of CM procedures:
• policy decisions (in the form of dialogues) for the development of new policy
approaches, e.g., to air pollution, toxic waste disposal, etc.
• legislative initiatives and the negotiations that accompany them (in the USA
"regulatory negotiations") on the formulation of legislative regulations: e.g., on forest
management, air pollution, protection of endangered species, etc. The negotiated
results are then passed on to the governmental institutions responsible as proposals
for legislation and/or processed by means of customary procedures.
• enforcement problems involved in finding solutions acceptable to all concerned, e.g.,
concerning land-use or ground-water maintenance, handling of emissions violations,
etc. Often there is some leeway for interpreting legislative regulations.
• site-specific problems concerning the resolution of a specific environmental problem,
such as a waste incineration plant at a particular location, protection of a particular
endangered species, or the pollution of a river, and, generally, all problems related to
resource management 6

3 In greater detail in Section 2.5.

4 G. Bingham, 1986.
5 Site-related means in this case a spacially limited, specific environmental conflict, while
policy dialogue refers to environmentally relevant planning, legislative projects, etc.
6 Please see the comprehensive literature on the micro-level in developing countries for the
specific possibilities and conditions of CM.

4
• consensus problems or disputes over jurisdiction among governmental
institutions, where the objective is to reach agreement on the manner of cooperation
within the environmental sector
Sectoral classification revealed that conflicts predominated in the land-use, natural
resources, water consumption, energy, air quality, and toxic substances sectors. In 42%
of all cases the objective was to reach a joint decision; in 40% it was to draw up joint
recommendations; in 18% to improve communication. For the participants in the CM
procedure, the process itself was as important as achieving a result: How can I influence
decisions? How fair and efficient is the process? The relationship to and communication
with other participants were considered very important.

In a total of around 80% of the cases it made almost no difference to the result attained
whether a policy dialogue or a site-specific conflict was concerned.

The rate for implementation of agreements in site-specific conflicts was 80%, in policy
dialogues, at 40%, considerably less, indicating that implementation is more difficult to
achieve in such cases. The reason may be that the officials responsible for
implementation have not participated, or it may be the structural weakness of an
administration dominated by special interests.

The number of cases examined does not, however, allow the conclusion that CM
procedures are the dominant mode of conflict resolution. The forms of CM without
mediator support still dominate - for example, judicial and administrative decisions.
Although no recent figures on developments in the USA are available, the increasing
professionalization of this sector and the legislative and institutionalization efforts of
recent years allow to conclude that enormous growth is taking place in this form of conflict
resolution.

5
2.2 Varieties of conflict sources

The type of conflict source may be of decisive significance for the selection and structure
of an appropriate CM procedure and should be taken into consideration in the conflict
analysis (v. Section 2.6.2).
This applies to all varieties of conflict and to all levels on which they occur. Theoretically,
five varieties of conflict causes may be identified (v. box 2):

Box 2

Varieties of conflict sources

Relationship
problems
• strong emotions
• prejudices/stereotyping Data/informa-
• poor or miscommuni- tion problems
cation

• lack of information
Value • different
interpretation
differences

Structural problems Interests

Resources procedural
psycho-
• administrative logical
procedures
• distribution of
power/authority
• time, place
substantive

Copyright CDR Associates

r Problems on the relationship level occur mostly in the face of differing perceptions,
communication problems, stereotypes, prejudices and strong emotions.

r Data problems crop up when information necessary to decision-making is lacking,

when people are inaccurately informed, or when the relevance of available data or
their interpretation is subject to debate.

r Divergent interests, perceived or real, often lead to conflict. They occur when both
sides push for satisfaction of their own particular interests.The subject of dispute may
be substantive (money, time, resources), or procedural (how is the conflict to be
presented?) or psychological (perception of trust, fairness, respect). The operating
principle for the resolution of this kind of conflict is that a sufficient number of the
interests of all participants in these three areas is considered in resolving the conflict.

r Structural problems are caused by certain types of relationships between institutions

or individuals. Factors outside of the circle of parties involved in the dispute are often
responsible for the conflict or intensify it, e.g., limited authority, lack of financial and
human resources, geographical constraints, lack of time, and also organizational
structures such as inflexible hierarchies.

6
r Value differences emerge in differing systems of values and beliefs. Values lie at the
root of convictions about right and wrong, good and evil, justice and injustice. Differing
values must not necessarily lead to conflicts, which occur only when differences in
values are not recognized or are asserted to be exclusive: under certain circumstances
the relative importance of values may undergo a change.

2.3 Advantages of conflict management procedures...

The chances CM procedures have for success in general have already been outlined in
Section 1. While the resolution of particular disputes may not involve every one of the
benefits listed below, many of them are often present.

r The voluntary nature of the process: Participants who decide in favor of a CM

procedure do so because they are convinced that agreements reached in this way will
be better than, for example, judicial decisions.

r Speeding up the process: Since CM procedures are less formal than judicial
proceedings, the participants themselves may determine their nature, prevent delays,
and speed up the entire process. When time, money and the postponement of
decisions entail major costs, solutions based on CM procedures are a good alternative.

r Creative and appropriate solutions: CM procedures offer participating parties the

possibility of reaching tailor-made agreements that are more likely to serve their
common interests than are those imposed by a third party. They allow room for
practical solutions that may be accepted on all sides. CM procedures also allow for
greater flexibility amid the range of possible solutions, may focus on the root causes of
conflict, and are not limited in the way judicial proceedings are.

r The creation of better relationships among the participants: CM procedures that

lead to results accepted by all are much more likely to improve present and future
working relationships among participants than win/lose procedures such as litigation.

r Higher rate of compliance: Participants who have reached agreement together are
much more likely to stick to their agreements than are those who are to accept
decisions imposed by a third-party decision maker. Thus CM procedures may
contribute to the avoidance of costly re-litigation.

r Reduction of risk in planning: From the point of view of administration and project
contractors, the timely use of CM reduces the risk of failure at a later point in time by
taking the needs and interests of all actors into consideration right from the planning
stage.

r Savings: CM procedures are in general less expensive than are court proceedings.
The costs are essentially connected with time, and neutral third parties (mediators)
cost on the average less than do lawyers.
In addition, expenditures may be reduced through the avoidance of costs caused by
delays. Such costs often occur due to the lapse of time between the institution of
proceedings and a court decision - time that the participating parties cannot use for
more constructive purposes.
CM procedures reduce the tax burden of maintaining an inflated judicial structure,
because they help avoid unnecessary court cases and thus lead to more economical
use of public resources.
And finally, participants in CM procedures report that even in cases in which no
agreement was reached, the time and money for bringing the matter to court would

7
 have been necessary in any case, and that the attempted CM procedure still made
sense because it led to better understanding between the opposing sides. The CM
procedure narrowed the range of judicially relevant points of disagreement and thereby
shortened the court proceeding, making it cheaper for all concerned.

2.4 ...and the conditions they require

In spite of the many advantages of CM procedures, they must not be seen as a panacea
for every dispute. CM procedures are always open-ended processes, and will only lead to
success if a series of conditions are met. Particularly the conflict analysis at the start of
the procedure (v. Section 2.6.2) provides for an examination of these conditions. The
following prerequisites may be individually specified:

r Stakeholders are identified and prepared to participate: At the start, potential

participants must be identifiable and basically prepared to take part in the CM process.

r High priority for all participants: The resolution of the dispute must be a high priority
for all stakeholders. This is often not the case when there are major power
imbalances 7 and/or where interests are weighted from different points of view, e.g.,
between administration and an NGO.

r Stakeholders depend on one another: The participants will only engage in a CM

procedure if the satisfaction of their specific interests depends on the outcome, e.g.,
when the awarding of a timber concession by a Forestry Ministry depends on the co-
signature of the Ministry of Environment. Dependency exists, too, when one actor has
at least enough power to obstruct or to delay the project of another actor (e.g.,
environmental NGO).

r All stakeholders expect advantages from CM procedures: A further prerequisite is

that the actors don’t perceive a (subjectively) better alternative to a negotiated
agreement, that is, no more favorable BATNA (Best Alternative To a Negotiated
Agreement). As long as participating actors are convinced that they are more likely to
get what they want by other means, e.g., through a court decision, no CM procedure
will take place.

r The conflict must be subject to a compromise solution: The conflict or its

components must be negotiable. If there is no room for compromise, all mediation
procedures turn out to be inappropriate - which is often the case in terms of pure value
conflicts: e.g., nuclear power, yes or no?.

r Decision-making authority of participants: The participants in a CM procedure must

be assured as individuals or as delegates of interested groups and institutions that
they are authorized to make decisions within the framework allowed for negotiation.

r Relinquishing of decision-making sovereignty: There must be a readiness, in

particular on the side of officialdom, to agree to an open-ended process and thereby
partially to relinquish decision-making authority.

r Frame conditions (e.g., public opinion) favor a negotiated settlement.

r Financing is assured.
2.5 Conflict management (CM) procedures

7 See also Section 2.7 on the topic of power and balance of power.

8
The conflict resolution procedures used in the USA may be distinguished in regard to the
degree of intervention of a third party. 8 The following chart shows the arrangement of the
procedure on a continuum:

Box 3 Copyright CDR Associates

CONTINUUM OF ALTERNATIVE DISPUTE RESOLUTION PROCEDURES

INCREASING INFLUENCE/POWER OF A THIRD PARTY

COOPERATIVE THIRD PARTY ASSISTANCE WITH NEGOTIATIONS THIRD PARTY

DECISION- OR COOPERATIVE PROBLEM SOLVING DECISION-MAKING
MAKING

Parties are Relationship Procedural Substantive Advisory, Binding

unassisted - assistance assistance non-blinding assistance
building assistance
assistance
• Information • Consulting • Coaching/ • Technical • Non-binding • Binding
exchange • Team-building process- advisory boards arbitration arbitration
• Cooperative • Conciliation consultation • Evaluation • Mediation-
problem-solving • Training • Fact-finding arbitration
• Negotiation • Facilitation • Mini-Trial • Mediation, then
• Mediation • Advisory arbitration
mediation • Disputes panels
• Settlement-
conference

Every communication within a dispute has either substantive or procedural elements. Very
often, the manner in which we communicate with one another determines how or even
whether or not our opponent takes in the content of what we say. A central premise of all
CM procedures is that by means of separating the negotiation process from the
negotiation content or substance the discussion proceeds better and common ground
may be found. For this separation of process and content/substance, impartial third
parties are necessary who - to differing degrees - become responsible for the negotiating
process.

Mediation, which is often central to CM procedures, is one of the CM methods that

employs a third party to support a negotiation process. Such support is often sought
when: the parties to the conflict do not know each other or potential adversaries have not
yet been identified; there is no forum for negotiation; none of the participating parties feels
called upon to convene negotiations; the relationships among the participants are so
charged that discussion appears impossible; the manner of negotiation has not yet been
determined; or negotiations have reached a stalemate and the parties are seeking
procedural support in order to overcome it. Assistance at this level of intervention always
has as its goal the improvement of the joint effort at problem-solving or the negotiation
process, but not assistance with substance. At the same time, the mediator should know
the negotiated topic very well, so that s/he may at least follow the complex negotiations in
terms of their content. If need be, a mediator may also propose options to do with content
in order to encourage participants to expand the range of possible roads to a solution.

8 Although all procedures have their specific application possibilities, in Germany mediation is
the CM procedure that is best known and with which there is the greatest experience.
Further discussion therefore focuses on this procedure. An explication of the remaining
procedural varieties is to be found in Annex 3.

9
The mediator 9 should be an outsider without any vested interest in a particular result.
During the course of a mediation procedure s/he frequently works with individual
participants or groups in order to scout out acceptable options, which s/he then develops
into proposals. No matter how much a given mediator may "steer" in an individual case,
mediators have in common their role as catalyst to assist the participants in their search
for their own solutions.

2.6 Building blocks and the course of a conflict management procedure

What is the actual course of a CM procedure? CM procedures are first of all not uniform
in the sense that they all follow exact rules. It is exactly their non-formal nature that allows
the (necessary) flexibility of such procedures. However, to conclude that every kind of
structure is unnecessary would also be incorrect. Procedures for resolving conflicts need
a minimal structure in the form of an "order of procedure and common understanding."10
If, therefore, in the following the essential steps of CM procedure with its various phases
is presented, taking mediation as an example - being the most familiar German CM
procedure - nevertheless, participants may basically tailor every CM procedure to suit
their own needs and previous experience.11 For this, individual rules of order are often
established (v. Annex 1).

Theoretically, four phases may be distinguished (v. box 4):

Box 4

2TQEGFWTCNUVGRUKPOGFKCVKQP
Initiation phase
Impetus from initiator
Finding a conflict mediator
Clarifying of financing
Preparatory phase
Preparing the conflict analysis
Selecting negotiation participants
Laying out procedural rules of order
Procuring information
Negotiation phase
Eliciting interests (instead of positions)
Creating a win-win situation
Tying up the negotiation package
Implementation phase
Announcement and signing of results
Commitment of parties
Agreement on how to resolve future disputes

9 The terms "mediator," "facilitator," etc. are used in this context collectively, implying neither
a single individual nor a male or female personage.
10 P. Wiedemann; C. Karger (no year).
11 The presentation of the procedural steps is according to Gaßner/Holznagel/Lahl,
1992, p. 34.

10
2.6.1 Initiation phase

Before the mediation process begins, it must be initiated: Who wants the procedure to
take place? How can a mediator be found? Who will finance the procedure? All three
questions are closely related:

r Impetus from initiator: Experience in the USA has shown that state authorities,
environmental or conservation groups are the chief initiators of mediation processes. A
search for a mediation process by outside persons or groups, who are not directly
involved in the conflict but are interested in how it turns out, is another frequent initial
impetus, as is active soliciting by professionals in the field. In cases where conflict
resolution through mediation is legally prescribed by court decision - as in
institutionalized labor disputes - the issue of initiation is a moot point. However, in
Germany, and also in a number of developing countries, the initiative reverts primarily
to municipality and government agencies. Before the initiator of a CM procedure
begins the search for a mediator, a number of steps are necessary, including:

• initial clarification that potential participants accept the procedure:

Is the procedure already familiar to them? Is there (positive or negative) previous
experience? Are there basic reservations? Is there a readiness to participate?
• coordination with other decision-makers:
How do participating decision-makers (administrations) view the procedure, taking into
consideration regulatory legislation? Which administrative branches are to take part or
are able to hinder the procedure?
• clarification of the mediator’s mandate:
What is expected of the mediator? What exactly is s/he to do?
• clarification of leeway for negotiation:
Where is there some leeway? Which positions may be sacrificed if necessary?

r Finding a conflict mediator: The search for a suitable mediator is certainly more
difficult in Germany, where conflict resolution procedures are still in their infancy, than
in the USA, where CM procedures already have a 25-year tradition and where there
are now a number of professionals in the field. Experience has shown, however, that
the push-and-pull effect tends to strengthen both sides: thus the demand for services
in this area might also lead to a greater supply of professional mediators, who, again,
through PR work, information, advertising and above all the multiplication of successful
mediation procedures, might stimulate greater demand. Finally, above all, CM
procedures are particularly significant where they are as yet quite unknown or only in
the trial stage.12 When a conflict mediator has been (provisionally) found, s/he will first
clarify the assignment in greater detail. The compromise potential of the conflict, the
mandate as defined by the client(s), the amount of time allowed, his/her personal
acceptability and the assurance of his/her (financial) independence 13 are all primary
concerns. The lattermost refers not only to the mediator’s fee, but also to the financing
of all activities necessary to the procedure. Only when all this is settled will it be
possible for mediator and client(s) to clarify the mediator’s ultimate role and to draw up
a contract.

12 V. Section 3.
13 Mediators with other sources of income, such as professors, have a high degree of
(financial) independence.

11
r Financing: The question of mediation financing, including the mediator him/herself, is
complicated and relates to the mediator’s neutrality. Whereas at first independent
foundations predominated in the USA, today state authorities and industry often
provide financing. Environmental organizations and citizens’ groups also share costs.
This cost-sharing has the additional advantage that the motive for consensus is shared
by all involved. If - as in the USA - CM procedures are prescribed as an instrument for
non-juridical resolution of conflicts, the financial arrangements are often integral to
such instructions. In countries in which mediation is still in the introductory phase, the
issue arises of whether the project contractor may provide financing, if mediation is to
lose its experimental and exceptional character in the long run. Experience does not
support the commonly expressed fear that the funding source might compromise
mediator neutrality and could be used by the financing body as a subtle method of
leveraging acceptance. This fear underestimates the sensitivity of the participating
parties to the mediator’s requisite neutrality and impartiality. It is a mediator’s job to
make clear to the employer that there is no connection whatever between financing
and a particular substantive position. Clearly, it would be very short-sighted of a
professional mediator to let him/herself be used in this way, since his/her professional
reputation is at stake.

2.6.2 Preparatory phase

In the preparatory phase the cornerstone is laid for successful conflict mediation, the
essential components of which are conflict analysis, identification of the parties to the
conflict or their delegates, and preparation of the first meeting. It is decisive that all
interested parties be represented and participate in the results of the negotiations. This
alone ensures that the ensuing official decision, which is almost always necessary as well,
will be oriented to the result of the negotiations and will be widely accepted.

r Conflict analysis: The identification of the various interests will only be possible if a
conflict analysis is undertaken. It is the task of the mediator to analyze the conflict’s
dimensions with great care. Analysis of the parties is part of this (which parties are the
most important and who are their spokespersons?), as is the object of dispute (what
are the main objects of dispute?), and matters to do with the procedure itself (what do
the participants think of consensual conflict-resolution procedures?)14.

At this stage a confidence-building process takes place in which the mediator must
credibly convince all participants in the procedure that s/he is competent on the basis of
his/her personal qualifications - or that his/her firm has the necessary experience - and
that a mediation process is what is needed to resolve the conflict. Following the
preparatory process the mediator must see clearly that all participating adversaries have
the (obligatory) readiness to accept both him or her and the procedure itself as a means
to conflict resolution. The decisive factor for the acceptance of the mediator by the
conflicting parties is certainly the relation of trust between them.

14 On the methodological procedure for conflict analysis v. Carpenter, Kennedy, 1988, p. 91. A
complete overview of all questions to be addressed in this phase is to be found in Annex 4.

12
r Selection of participants: The selection of the actual participants takes place
according to what the conflict analysis reveals. This process depends on all interests
being represented. If necessary, certain interests will have to be combined in order to
produce the necessary operating conditions for a round of mediation.15 It is difficult to
take non-organized interests into account. In such cases representation within a
broader context might be proposed, e.g., through churches, charitable organizations,
or NGOs.16 It is, however, essential that delegates be legitimate and that a true bond
exist between them and the group or organization they represent. This type of
feedback system is especially significant when participating groups represent a broad
spectrum of interests, as is often the case with NGOs.

r Procedural rules of order: When participants for the procedure have been
determined, the next step must be agreement on substance, duration and rules of
procedure. The procedural rules of order are generally recorded in writing. 17 At this
stage incentives should also promote a brisk conducting of the procedure. Setting of
exact dates for the duration of negotiations provides a clear framework for all involved
and increases readiness to participate, although, of course, in reality such a framework
can be no more than a goal. In the end, the CM procedure must be as open-ended in
terms of time as it is in other respects.

r Cooperative fact-finding: A central prerequisite for the success of the negotiations

that are now to take place is the correction of informational imbalances.18 All parties to
the conflict must have equal access to necessary and available information, so that all
may be more or less equally informed. This requires an open-handed information
policy on the part of both the authorities and project contractors, who both have at this
point an opportunity to display their goodwill. Further, it must become clear what
additional information will be acquired and by whom, so that there is a sound basis for
negotiation.

2.6.3 Negotiation Phase

When the participants have been specified, the procedural rules of order defined, and
informational imbalances corrected, the actual negotiations may begin.

r Interests instead of positions: During talks preliminary to the conflict analysis, the
mediator has already defined the participants’ positions and the interests behind them
in an "interests profile." It is now of great importance that the parties to the conflict
recognize the difference between "positions" and "interests."

15 The relation between the size and functionality of mediation rounds is disputed.
Experienced mediators consider groups with more than 30 participants problematical,
groups with 15 - 20 optimal.
16 Of particular significance in developing countries is the strengthening of the organizational
capacity of marginalized groups (v. Section 3.1).
17 A sample of procedural rules of order is to be found in Annex 1.
18 An example of the correction of such imbalances is to be found in Annex 2.

13
Box 5
Conducting interest-based negotiations
The point of departure for all CM procedures is a serious endeavor to solve problems jointly. The
participants decide on a strategy for cooperative problem-solving based on their interests.
Essentially, a participant may choose one of five strategies:

• A competition strategy is chosen when one party’s interests are so narrowly defined that only
one solution can be satisfactory, a solution that is unacceptable to the adversary. Thus the one
side will make an effort to attain the best result for itself within a winner-loser framework. This
strategy includes judicial procedures.
• The "choice" of the loser is perforce an adaptation strategy when there seems to be no chance
of gain within the winner-loser solution. Such a strategy is appropriate when the party hasn’t the
power to assert its own interests.
• The most unproductive procedure is conflict avoidance, which satisfies the interests of neither
party. It is a strategy of non-decision, which often derives from uncertainty over the result of the
conflict, from fear of defeat, or from unfamiliarity with CM procedures.
• In cases where no other solution may be forced or accepted, traditional CM procedures depend
on a compromise strategy. Negotiation takes place from the standpoint of opposing positions.
• As opposed to this, the strategy of cooperative problem-solving assumes that the positions
of the conflicting parties are not identical with the interests and needs to which the conflict may
ultimately be traced. The position is the objective decided upon; this decision, however, is
determined by an interest. In a conflict of this kind, the problem that requires solution is then
defined by interests, and these need not necessarily be so opposed as the positions of the
parties make them appear at first glance. The strategy of cooperative problem-solving thus
attempts to work out the basic needs and interests of the adversaries in order to discover leeway
for alternatives and to be able to develop options for action. In this way, one may find a solution
that considers the circumstances of all parties as broadly as possible (win-win solution) and may
therefore be accepted by all.

Issues raised in the course of negotiations must be examined to determine whether

fundamental interests or strategic-tactical positions are at stake. The mutual recognition
of legitimate interests engenders a readiness to put aside positions that aren’t absolutely
necessary to the realization of one’s own interests. At this point at the latest it becomes
clear why not every phase of negotiations should take place publicly, and the issues of
confidentiality and answerability to the public must be clarified in advance. It must be
possible for the parties to the conflict, who usually represent group interests, to use what
leeway they can, free of external influence, and if need be to sacrifice individual positions
in the interests of an overall solution.

Thus when a local dispute arises over a waste incineration plant (WIP), the interests that
have led to the position "No WIP in our town!" must be analyzed. These may be, for
example, fear of toxic emissions, anticipated odors, an increase in industrial traffic, etc. In
the further course of negotiations it then becomes a matter of discovering whether or not
the respective (justified) interests, may be satisfied through other means, such as
improved filters, noise-abatement measures or compensation.

r The win-win situation: After the various interests have been revealed, the mediator’s
task is to create a "win-win situation." Every participant should leave the negotiations
as a winner in that s/he can record successes in his/her interest. The simple decision
pattern "either-or" must yield to the working out of a variety of possible decisions,
which is more than simply crossing out some of the original positions in order to
achieve one solution or to attain a tactical success. What is promoted is rather a broad
consensus that presupposes readiness to compromise and understanding for the
interests of the opponent. The acceptance of mediation procedures depends

14
 conclusively on the extent to which it is successful in developing new, creative options,
which could never emerge during a juridical confrontation.

r The negotiation package: Negotiation packages are the result of proposals and
alternatives that have emerged through the expression of all interests represented.
The components of such a negotiation package may extend far beyond the object of a
formal administrative procedure: participants are free to use their imaginations.

Box 6
Negotiation package
For the example above of an waste incineration plant (WIP), components of a negotiation package
might be, for example:
The city constructs a WIP with considerably reduced capacity. In return, the groups affected,
together with the municipal waste disposal office, commit themselves to drawing up and trying out
an integrated concept of waste avoidance. The construction of the extremely expensive by-pass
road originally planned is no longer necessary because of reduced
industrial traffic to the WIP. Residents along the existing access road are given noise abatement
barriers, whose financing is taken on by the state government. In addition, the hours for access to
the WIP are restricted.

2.6.4 Implementation phase

Negotiation is only effective if in the end the negotiating parties implement what has been
decided. Setting up binding plans (Who does what? When? How? Where? With what
funds/means?) and monitoring groups have both proved effective. Another tool for
promoting implementation is economic incentive (e.g., making funds available on the
condition that they be used in accord with the agreement) or sanctions in case of failure to
implement (e.g., application by an environmental authority of regulatory or punitive
measures.)

r Mediation and signing: As already explained, even during negotiation there must be
intensive feedback between the participating delegates and the parties they represent.
Following the achievement of agreement in the round of negotiations, the delegates
must have time for final checking with the parties they represent. If given approval, the
results of an agreement may be finalized by signing.

r Commitment of the parties: In the ensuing implementation phase the parties to the
conflict commit themselves to the negotiated agreement - legally, if need be. There are
no significant legal complications involved between project contractors and the groups
affected, and this is in fact the usual procedure. There are, however, narrow limits to a
contractual obligation or agreement on the side of the authorities, since such
administrative decisions take place through a formal proceeding (see Box 7).
Nevertheless, the decision-making of the administration may well take the results of
the negotiation into account, viewing them as a supplement to - though not a
replacement of - the official judgement. The administration is basically free to adopt
mediation-supported negotiation as its own and to use it as a basis for a formal
resolution. Especially in the case of conflict-laden decisions it may be very much in the
authorities’ interest to orient themselves to a solution for which a consensus has
already been achieved.

15
Box 7

Legal obligations of participants to the negotiated settlement

The success of a CM procedure depends on the extent to which implementation of the negotiated
settlement is binding. In most countries, however, legal barriers prevent in advance legal commit-
ment by the administration.3 The possibility remains, however, that the administration may opt for
de facto self-commitment to the negotiated settlement. Self-binding in advance commitment by an
authority is allowable with the proviso that it be justified by circumstances, that it be made in
accordance with official planning regulations, and that it be substantively beyond reproach in terms
of judicious consideration at the time of the in advance commitment. This prerequisite of lawfulness
for de facto self-commitment is also applicable when an authority participates in mediator-supported
negotiations and feels itself bound by the agreements reached during them.
Aside from de facto self-commitment, there are other ways of achieving legal commitment by the
remaining participants in negotiation:
For instance, the administration may declare the results of negotiations affecting project contractors
to be binding and impose relevant standards. The project contractor may reciprocate by legally
contracting to fulfill the concessions it has made vis-à-vis the administration and other participants.
In the process it could make its own services dependent on a contractually-specified return service.
Also possible is a contractual implementation of the negotiated results between project contractor
and the negotiation participants who depend on the authority.
In the USA negotiation processes have not for a long time been limited to exclusively informal
administrative procedures. They are increasingly and in various forms already built into
administration procedure regulations.
Thus in 1990 Congress passed the Administrative Dispute Resolution Act, which provides generally
applicable regulations for using CM procedures. According to it, federal authorities have the right to
introduce a CM procedure whenever the parties affected by an administrative decision agree to
one.
Since the beginning of the 1980s, in some states of the USA, negotiations are a required part of the
formal administrative procedure for constructing toxic waste disposal plants.
The Environmental Protection Agency (EPA) uses mediator-supported negotiation processes to
generate administrative regulations and laws. These "Regulatory Negotiations" became necessary
when more than 80% of the administrative regulations enacted by the EPA were disputed in court,
thus considerably delaying or even preventing their application.

r Agreements for the resolution of future disputes: In order not to waste participants’
time and money if problems arise later on, mechanisms for the resolution of future
conflicts should be built into the framework of the negotiations. In practice, however,
the possibility exists that individual persons or groups may not feel bound by the
negotiated settlement. Any parties that are authorized to sue and have not as a result
of the negotiations formally rejected recourse to law may resort to judicial review. For
this reason the importance of comprehensive representation of all interests and of
constant feedback during the negotiating process cannot be overestimated.

2.7 Evaluation of CM procedures by authorities, project4 contractors and other

participants

In order to evaluate CM procedures as tools for conflict management, a measure for

success is needed and may be found on various levels. Clearly, a CM procedure has
been successful when it has led to a consensual negotiated settlement. The
implementation of agreements is another measure of success. In both cases, one can

3 V.B. Holznagel, 1990, p. 213 f.

4 What is meant by "projects" is not only new projects on the part of industry / business or the
state which might result in conflicts, but also those that are introduced to already existing
conflict situations.

16
only speak of success when all participants rate the outcome better or more time- and
money-saving than other forms of conflict management (such as court decisions).
But negotiations results and their implementation as measures of success do not fully
take the use of the CM procedure into account, and the participants actually reap further
benefits that should be included in any evaluation of CM procedures. Even when it was
not possible to reach consensus, the participants may have acquired useful experience:
the procedure’s open communication process may have shed light on the positions,
interests and motivations of other actors. These in turn clarify the individual position of
each participant. What are the limits to and possibilities for negotiation with others? What
obstacles are insuperable? Further negotiation then becomes more reasonable. The
effects on the future relations of the partners to the conflict should also be brought into
the balance. Besides all this, a CM procedure may also be the start of a learning process
for all participants, which may lead in turn to strengthening a sense of responsibility in
conflict-charged situations: compared to "alternative" CM procedures, court cases
constitute a typical hierarchical form of conflict resolution, since the resolution mechanism
in such cases is the decision on "who is right," and ascribes to the court a higher
instance. In CM procedures on the contrary, the participants attempt to attain a
compromise acceptable to all. CM procedures may thus contribute ultimately to a change
in the political culture.

From the perspective of the participants - in this case authorities, project contractors, and
those affected (individuals, citizens’ groups, etc.) - CM procedures are variously
evaluated, as might be expected:

r Authorities: CM procedures may lead to a limiting of the decision-making powers of

authorities and are therefore initially approached with caution. In CM procedures tied to
formal procedures like the granting of permits, uncertainty arises from the fact that they
depart from the strictly formalized course of official decision-making. Authorities must
always consider the possibility that their decisions will be judicially reviewed and must
meet legal requirements. The object of the review is then, additionally, to what extent
procedural regulations were followed. However, from the official viewpoint, there are a
number of weighty arguments for using CM procedures: the usual informal preliminary
negotiations with the respective project contractors or applicants for permits are
replaced by the newer preliminary negotiations involving more participants. By taking
into consideration the various interests of the participants, the decision base is
improved in the sense of an overall planning result. The administration, often under
pressure from both applicants for permits and permit opponents, can better realize its
role as impartial guardian of all interests through broad discussion of planning deficits
and project effects.5 The CM procedure, originally viewed as an additional burden,
may actually lead to a reduction of work and a further guarantee of the formal planning
and permit procedure, since the latter gleans the results of the negotiation process and
the probability of long drawn-out court proceedings afterward is reduced. Finally, for an
authority, certainly the increase of legitimacy and acceptance of its decisions is a
decisive argument for using CM procedures.

r Project contractors: The project contractor's reservations vis-à-vis negotiations are

primarily that they take time and money and must be made to "pay." Experience
shows, however, that applicants for permits often initiate negotiation processes, which
promise greater chances for the actual realization of their projects and a greater
degree of acceptance among the population. This, however, assumes in advance that
project contractors enter fully into the negotiation process and on its own terms; that is,

5 This is naturally not the case when the project contractor and the permit-granting authority
are one and the same, e.g., in the case of traffic route planning.

17
 that they are ready to make concessions, and are not confusing CM procedures with
simple methods of gaining acceptance.

18
r Those affected: Mistrust of voluntary negotiation processes is greatest among those
potentially affected. 6 Their skepticism is based on the unequal power among the
various participants, reflected in their unequal financial leverage, information
imbalances and different legal positions. The following basic conditions are therefore
formulated for the participation of individuals or representatives of citizens’ groups in
CM procedures:7

• publication of all information

• equal participation of those affected
• capability and readiness to share definition and decision-making with those affected
• correction of information imbalances
• readiness to compromise

To even out existing power imbalances, CM procedures prescribe rules that ensure the
access to information and technical support that all participants need. Comprehensive
information is the deciding factor in effectively coming to grips with conflict. The
information gained in the process may also serve as an incentive for participation in the
procedure. Besides, CM procedures may be designed in numerous different ways, some
of which may lead to the raising of environmental standards.

However, often very early on, potentially affected parties have set their minds against a
project, and this stands in the way of participation. Participation in a CM procedure means
taking a first step away from "no-option" to "conditional acceptance."8 This strategic
situation - often difficult for the groups affected - requires in individual cases careful
evaluation and weighing of the chances and limitations of the CM procedure. What must
above all be clarified is what realistic alternatives there may be to participation in the CM
procedure.

Box 8
What does "power" mean?
"Power means the ability within a social relationship asserting one’s own will, regardless of
resistance and regardless of the nature of the occasion." Based on Max Weber’s definition, the
roles appear at first sight to be clearly divided: on the one side, the strong state, collaborating with
industry, multinationals, etc.; on the other side, the weak, powerless individual, who must humbly
submit to the will of the powerful.
But reality is different, as, for example, the "Brent Spar"-conflict between Greenpeace and Shell -
David and Goliath - showed. Turnover, wealth, connections and influence are the cards in one
party’s hand; in the other’s, the mobilization of public opinion through the media and with it control
and pressure. To these, boycotts and the threat of court actions may be added: in other words,
generally making life difficult for the other side. Project contractors indeed avoid public confron-
tation and monitoring but are at the same time interested in a "clean" image. The threat and
influence potential of one party - i.e., the adroit use of this dilemma - creates a general incentive for
the other parties to negotiate. The balance of power is put in a different light and is leveled out. In
both industrialized and developing countries, NGOs 9 have evolved into effective opponents of
established power cartels and are considered negotiation - and to some degree cooperation -
partners to be taken seriously. Experience shows that in developing countries, NGOs support the
interests of marginalized groups very effectively. What is decisive for NGO effectiveness is,
however, a minimum of bureaucracy and the free flow of information.

6 At least in Germany, where until now relatively few procedures have taken place.
7 Ökoinstitut Darmstadt, according to Gaßner, Holznagel, Lahl, loc. cit. p. 85 f.
8 If the CM procedure is only in a very early (planning) stage, a "no-option" is not to be
excluded.

19
2.8 The content of negotiated settlements

It is sometimes argued that negotiated agreements in the environmental sector treat the
environment as goods to be bartered, and that participating parties may reach an
agreement at the expense of environmental protection. Such a position reflects the
experience that environmental viewpoints often conflict with economic interests and other
political objectives and are not given their just due. It must not be overlooked, however,
that environmental legislation and legally defensible environmental positions can never be
subject to negotiations. No one negotiates over something which is his or her right in any
case. What is negotiable is only the leeway for making decisions or legally non-assailable
compensations. These also make it possible to "put in a plug" for the interests of
environmental protection.

As already suggested above, one advantage of CM procedures is the range of possible

negotiation results, the variety and breadth of which may not be expected from
administrative resolutions. If CM procedures are thus to be more broadly implemented
and become more widespread, this flexibility of informal negotiations as opposed to
formal administrative procedures must be made available to all participants. The objective
of CM procedures is an optimal balancing of interests: that is, at core, a win-win situation.

The following examples present possible subjects for negotiated settlements: 10

Avoidance measures: At a relatively early planning stage, the necessity for and
dimensions of a planned project may be discussed in the framework of a CM procedure.
Invasions of the natural environment or landscape and possible disadvantages to persons
affected may thus be avoided or minimized. Thus a waste-avoidance concept, for
instance, might make the planned construction of a community-operated waste
incineration plant within the city limits unnecessary. Other conceivable results of a
negotiation process might be reduction of plant size or the design of a regional waste
disposal network.

Protection measures: The particular object of negotiated settlements may be

agreements that oblige project contractors to undertake measures that go beyond legal
requirements. These might be for example:

• precautionary measures beyond the current state of technology

• obligations to monitor and institute improvements at certain intervals, regardless of
official requirements
• permission to review confidential records
• inspection permission for experts
• broadening of the obligation to provide information
• participation of affected groups in monitoring and implementing the agreement
negotiated

Equalization and substitution measures: Equalization measures are also conceivable

beyond the scope of the project planned. Such measures, which in Germany have until
now been taken only in regard to environmental protection legislation, could also be
agreed in other areas of conflict. For example:

9 NGO is used here as a collective term for the most diverse non-governmental
organizations, such as environmental groups, legal aid groups, nature preservation
associations, citizens’ intitiatives, grass-roots groups, etc.
10 The ensuing remarks are taken from Gaßner/Holznagel/Lahl, op. cit. pp. 57-62.

20
• for the sake of water conservation, an obligation to help improve or expand a sewage
purification plant that the project contractor may use, too
• assumption of costs for passive noise prevention measures to reduce noise pollution
caused by delivery traffic within the broader surrounding area
• promotion of research to protect the health of residents in the immediate vicinity of the
project, e.g., within the framework of environmental liability discussions, obligatory
financing of long-term research to provide sufficient data

Compensatory measures, particularly financial compensation: Finally,

counterbalance measures such as leisure facilities may be negotiated to compensate for
property devaluation in the immediate vicinity of a planned project. The characteristic of
such compensation is that it does not prevent or lessen disadvantages caused by the
project, but balances out such anticipated disadvantages through advantages of another
kind. Such measures may be relevant where an optimal project concept already exists,
one which takes into account all environmental and social impact criteria. Compensation
thus does not replace avoidance, protection, equalization and substitution measures. It
can only be used where environmental protection alone is not enough to compensate for
a disadvantage that must be accepted for the sake of the general good. Thus, for
example, within the scope of a CM procedure in Indonesia, it was agreed that an
industrial operation - in addition to meeting criteria for the reduction of pollution - must
also contribute financially to the development of the community affected.

2.9 Qualifications of a mediator

A mediator’s qualifications were once summarized as follows:11

• the patience of Job

• an Englishman’s stalwartness
• an Irish sense of humor
• a marathon runner’s endurance
• an American halfback’s ability to dodge
• Machiavelli’s shrewdness
• a psychiatrist’s knowledge of human nature
• the skin of a rhinoceros
• the wisdom of Solomon

and, more seriously,

• integrity and impartiality

• confidence in free expression (as opposed to the ordered communication structures of
hierarchies)
• belief in the human potential for development
• the capability to distinguish what is desirable from what is do-able
• sufficient personal motivation and confidence and readiness for self-examination
• know-how on conducting negotiations and faith in collective decision-making

The qualifications cited are mostly personal qualifications that can hardly be acquired or
learned as techniques. In addition there are, however, a number of helpful skills that may
indeed be learned: techniques for conducting discussions, communication and
moderation skills, rhetoric and specific procedural know-how that relates to the mediation
process. Some requirements lie on the border between abilities to be acquired and

11 Simkin 1971, quoted by Fietkau, 1991.

21
personal characteristics, such as strategic, networked and systematic thinking. To what
extent such qualification requirements are realistic as a whole, which ones are
indispensable, and whether or not all may ever be found in any one person cannot be
answered generally, but only within a specific cultural and social context.

What is decisive for the ultimate realization and success of a mediation procedure is first
of all that the parties involved accept the mediator. The qualifications required for this
basic criterion may vary greatly: by North American standards, for example, only
mediators with absolute neutrality, who are strictly impartial regarding the interests of the
parties to the conflict, are acceptable, while in other cultures mediators may be very
successful who have a hierarchical relationship to the parties or have close social or other
ties to them. In many traditional societies, a mediator is often employed precisely because
his/her close social bond to the web of participating parties obligates him/her to act
conscientiously and fairly, so that s/he is trustworthy in the eyes of all concerned. Often
mediators are expected not only to support the immediate problem-related negotiations
but also to take on "symbolic communication" or interaction that emphasizes common
ground, such as genealogy, value systems, etc.

The following typology makes these differences clear. It shows, for one, that only a
person who is "independent" in terms of a North-American or European way of thinking
meets the ideas of a mediator, yet, for another, that a direct transfer of that way of
thinking to others is not possible, and may even be a hindrance in practice in developing
countries.

Box 9 Copyright CDR Associates

MEDIATOR TYPOLOGY

SOCIAL NETWORK AUTHORITATIVE MEDIATORS INDEPENDENT

MEDIATOR MEDIATOR
Benevolent Managerial- Vested interest
mediator Mediator Mediator

• Previous and • May, but need not, • Generally has on- • Has current or • Neutral/impartial vis-
expected future keep up relations going authoritative anticipates future à-vis relations and
relations to parties/ with the parties now relations with the relations to one or specific outcomes
tied into their social or in future parties before and more of the parties • Serves all parties
network • Seeks the best following the conflict • Has a strong • Can/may be a
• Not necessarily solution for all • Seeks commonly interest in conflict „professional“
neutral, but perceived parties developed solutions outcome mediator
by all to be fair • Generally neutral within the • Seeks solution in • Seeks commonly
• Very concerned to vis-à-vis the specific parameters own and/or favored accepted voluntary
promote stable, long- outcome of the prescribed party's interests and non-pressured
term relations among dispute • Has the authority to • Can/may use settlement developed
all parties • Has the authority to advise, propose or influence or force to by all parties
• Often involved in advise, propose or decide implement the • May, but need not,
implementation decide • May have own agreement participate in
• Generally has • May have own resources to assist • May have own monitoring of
ongoing relationships resources to assist with monitoring and resources to assist implementation
with parties after with monitoring and implemen-tation of monitoring and • Has no authority to
dispute is termined implemen-tation of agreemnet implementation enforce agreement
• May use personal agreement • Has authority to • Can/may use
influence or enforce agreement leverage or
peer/public pressure coercion to enforce
to promote adherence agreement
to agreement

Even administrations, which are not basically disinterested, may be successful mediators.
"eminent persons" in India, "fat old men" in East Africa, "public personalities" in Germany,

22
"consulting firms" in the USA - the list may be as long as one likes. The spectrum of
qualifications goes from "supposed" or "rumored" qualities to pure formal qualifications or
combinations of both.

The necessity, for example in the USA, of the mediator’s impartiality and neutrality does
not mean that a mediator may not have his or her own views about the subject and the
outcome of the conflict. No one is fully disinterested. Disinterest and neutrality mean in
this case that the mediator separates his/her own ideas about the possible outcome of the
conflict from the wishes and ideas of the parties to the conflict and concentrates on
helping them make their own decisions, without favoring either party unduly. The ultimate
criterion in the choice of a mediator is whether or not s/he is accepted by all parties to the
conflict.

The qualifications listed above include no information whatever about substantive

professional qualifications. Mediators will probably never be in a position to be expert in all
details. This is true above all of environmental conflicts which are not site-related, but
rather of a political nature. Specialized knowledge is certainly necessary under certain
circumstances, but the conflict mediator him/herself need not be the expert.

23
3. Environmental conflict management and development
cooperation

3.1 The context

Policy planning projects in the environment are politically sensitive, since they are liable to
the suspicion that donor policies are being imposed. This is especially true of policy
instruments originally developed and practiced in European and North American cultural
areas and so having (apparently) no affinity with the partner culture. Projects in this sector
therefore require correspondingly careful planning and implementation.

Wherever conflict management (CM) procedures are made part of development

cooperation, special demands are placed on both the partner and the development
cooperation institution. Fundamentally, development cooperation can play only a catalytic
role here, a role which is also characterized by an intensive learning process: at the
outset, there is always an analysis of the "conflict culture" of the country involved, which
must be made jointly with the partner (cf. Section 3.3). All subsequent measures must
build on this basis. Thus it is evident that "ready-made" solutions are ruled out. The
development cooperation institution is itself a "learner" at first.

But a factor very favorable to the application of CM is that many developing countries
already have experience in it, partly based on traditional forms of conflict resolution.
Despite this country-specific precondition, there are nevertheless a number of framework
conditions (environment-specific and non-environment specific) which are requisites for
the introduction and practice of CM procedures, and which can be found, at least in
rudimentary form, in most countries:

r Democratic structures/separation of powers: In general, the separation of powers

(as a pervasive principle at all decision levels) is considered a positive framework
condition. It is evident that, for example, the absence of a separation between judicial
and executive would considerably restrict the prospects of a successful appeal by the
affected party. In most developing countries such structures exist, if often in a less
functional form than might be desired.

r The rule of law: Beside separation of powers, the fundamental principle that the state
is under the rule of law, and the existence of a functioning legal system are further
positive framework conditions. With this go transparent planning procedures and
decision-making processes, prescribed channels and the right of appeal. The
comments above apply here as well: the rule of law is given lip service, but active
observation of it is frequently scarcely demanded by the public or even obstructed.

r Freedom of speech and of the press: Freedom of information, i.e., free access to
information, as well as the right and the possibility freely to express one’s views, are of
the greatest significance in removing power imbalances.

r Decentralization: The greater the extent to which government decision making and
implementation are decentralized, the greater are the chances, as a rule, of
participation, and the more probable is a result that accommodates the citizenry and
the interests of (all) participants.

r Civil society/pluralism: A strong civil society favors the application of CM procedures.

By civil society is meant here the presence of (organized) societal actors (associations,
NGOs, churches, etc.), independent of the government, who fulfill social functions

24
 jointly or singly. The beginnings of a civil society are found in nearly all countries, even
in those whose centralist structures give good reasons for supposing that power is
strongly imposed from above. So it is no coincidence that it is precisely the USA, with
its strong civil society characterized by flat hierarchies and narrowly-confined
imbalances of power, that has been in the vanguard of those developing and applying
CM procedures.

The non-environment-specific conditions outlined above should be taken as optimal

prerequisites. Each individual case must be probed to determine to what extent conditions
allow enough scope to apply CM procedures or how this scope can be expanded. In some
cases even the framework conditions themselves could be the object of the intended
change processes.

The application of CM procedures, in addition to its purely instrumental function, has an

intrinsic value as a social learning process tending to strengthen democratization and
encourage citizen participation. CM procedures were developed in the USA with the
express goal of overcoming perceived flaws in representative democracy.

Environmental policy decision-making around the world is dominated by administrative

procedures, essentially characterized by a top-down approach, with limited and strictly
regulated participation. This is not surprising, since, on the one hand, participation means
loss of power12, but, on the other, it is in this way that the requirements of the rule of law,
such as the need for unified administrative action and safeguarding the general welfare,
must also be taken into account. Where the capacity to carry out environmental policy
stagnates or demonstrably lessens, however, whether at the decision-making or
implementation level, alternatives should be considered. Meriting attention at this point, in
addition to the already-mentioned context, are environment-specific conditions which
influence the capacity for action.

r Fragmenting of responsibilities: The fragmenting of responsibilities13 relevant to

environmental policy narrows by many times the maneuvering room environmental
institutions have and has substantial consequences for the areas in which CM
procedures can be applied, if the institutionalized introduction and use of these
procedures infringes on the competencies of environment ministries, which is generally
the case. But a reform of the entire range of environmental policy instruments
becomes increasingly possible as environmental policy itself is perceived as a cross-
sectoral issue and a common task, and is firmly established on a broad basis in
government structures and in public debate.

r Status of environmental institutions: Environmental ministries, in developing as in

industrial countries, are - compared to the classic ministries - relatively weak actors.
The political weight of state environmental institutions and their collaboration at the
ministerial level is, however, advantageous for the introduction of new environmental
policy instruments. Therefore allies must be sought and strategic alliances built.
Potential allies aside from ministries include, first of all, environmental NGOs, interest
groups, labor unions, law faculties and the media.
In addition to a broad public debate, an important precondition is that the problems put
individual participants under intense pressure, and that they perceive that these
problems cannot be resolved in the context of the existing range of instruments.

12 Often equated with a weakening of governmental structures.

13 The fear among government bodies of losing authority (equated to power loss) to the civil
society, has its equivalent on the inter-ministerial level.

25
Box 10
Conflict management in Indonesia
The environment ministry’s interest in applying CM procedures results from the difficulties met by
this relatively new institution in measuring up to its tasks and in asserting environmental interests
against the opposition of politically stronger groups and institutions. The structural weakness of the
ministry - it has no project budget of its own and no regional or local structure, and so depends on
the cooperation of other ministries to meet environmental needs successfully - made clear the
necessity of employing new policy instruments.

Building on traditional conflict resolution procedures when possible is also advantageous.

The consensus orientation of many cultures facilitates application of CM procedures.

Box 11
Sociocultural framework conditions in Indonesia
Sociocultural conditions in Indonesia favor a broad application of CM procedures. The dominant
state ideology, in which the search for consensus and harmony is firmly anchored, has adopted a
conflict resolution procedure rooted deep in Indonesian culture (mushawara), which seeks
consensus among conflicting parties, and can therefore serve as a reference system. Historically,
mushawara took place in the rigidly structured Indonesian society only between conflicting parties of
the same rank. Disputes of greater complexity were and are resolved by first seeking a solution on
a hierarchical level, and then transferring it to the next level up through representatives in an
advisory process. These mechanisms are still referred to in current environmental CM procedures.
Although environmental conflicts bring into confrontation groups/persons of very different ranks, the
common cultural basis provides a favorable precondition.

3.2 Institutional framework

The decision to introduce and carry out CM procedures means that participating actors
must be prepared to expend considerable time and effort to reach agreement. It is
advantageous here if the agreement process is coordinated from a central position, such
as the environment ministry. This is especially important if the ministry primarily has
planning and coordinating functions, and depends on other bodies for implementation and
monitoring.

Generally the possibility and desirability should be examined of distributing responsibilities

among regional administrative bodies at various levels, such as states, provinces or
communities. The horizontal and vertical distribution of competencies suggests itself in,
for example, site-specific conflicts, which are usually confined to geographically definable
areas. If the use of CM procedures is planned on all levels, clear lines of responsibility
must be drawn. Experience shows that in many countries it is helpful to have overall
environmental legislation that establishes priorities, competencies, procedures and
participative possibilities, and much else as well. In this connection, it appears worthwhile
to establish on the provincial level clearing houses which can find and pass on or furnish
expertise, document pilot cases and answer general inquiries. Whether a government
body should assume such a function must be decided in each individual case. Since CM
procedures include procedural options, their recognition and use is closely tied to an
appropriate information policy.14 Their introduction requires therefore a communication
and information policy, which reaches all relevant actors and involves them in the
discussion process.

14 In contrast to, for instance, the use of marked-based-instruments, which are "demand-
oriented," and which the parties concerned can evade only at an economic loss, conflict
management procedures are more "supply-oriented" instruments, whose use is conditional
on the knowledge that they exist.

26
Box 12
Communication policy in Benin
An example from Benin shows how important communication policy is. New environmental
legislation there provides, under certain preconditions, for public participation in environmentally-
relevant projects. Exercising this right, with in some cases far-reaching consequences,
presupposes that its existence be known at all administrative levels and by its potential users. Only
then can such a right be exercised. For Benin, this requires a comprehensive, actively-pursued
communication policy, including, possibly, even providing the means for people to take this
particular opportunity, in order to forestall the impression that the legally-provided right of
participation is only for the sake of appearances - to conciliate donors, for example.

Appropriate implementation stipulations and procedural guidelines for lower administra-

tive authorities can also be of central importance to the use and implementation of CM
procedures. Since site-specific conflicts are initially the dominant arena for the applica-
tion of CM procedures in developing countries - this is confirmed by development and
application in industrial countries -community or district administrations are as a rule the
first authorities involved. They need criteria for the selection of cases and their
preparation.

3.3 Intercultural exchange

The problems associated with intercultural method transfer have already been mentioned
in connection with CM procedures at the beginning of Section 3. An absolute precon-
dition for any transfer of experience must be the meticulous observation of the cultural
environment and of the "conflict culture" in each developing country. It should be borne in
mind that many developing countries have traditional methods of resolving conflicts.
Against the background of specific cultural, social and political conditions, the varied
spectrum of forms and applications that has evolved in developing countries deviates
substantially from concepts evolved in the USA and Europe.

So developing countries face the question of how to revive and promote these various
existing approaches. The (necessary) adaptation of traditional forms of conflict mediation
presents a special challenge, which does not involve playing off "traditional" against
"modern" methods of settlement, but instead poses the questions: "What works best in a
given society? What traditional elements can be supported effectively and combined with
modern elements? How do we reach ‘better’ decisions?"

In order to answer these questions, it can be helpful to "decode" the society concerned by
examining a number of variables15 that influence its problem-solving culture.

r Cultural views toward cooperation, competition and conflict

Strategic options and possible outcomes of the "resolution" of a conflict:

• Avoid → stalemate/loser-loser
• Accomodate → loser/winner
• Compete → winner/loser
• Compromise → shared gains/losses
• Integrative solutions → winner/winner

15 CDR Associates, Boulder, Co. USA, 1995

27
r Cultural views of relationships

• hierarchical/horizontal
• significance of age/gender/race/ethnicity
• how relationships are constructed (e.g., through "contacts", clientele)
• context: where and what has already been done
• content/activity
• emotional/objective

r Cultural views of problem solving or negotiation processes (who and how?)

• framing the problem

• initiating the problem solving process
• identifying issues and interests
• processing/handling of issues
• developing options
• reaching final agreement
• Implementation

r Cultural views toward time

• differing conceptions of time

• planning horizons

r Cultural impacts of language and communication

• structure: "face-to-face"/intermediary
• content
• direct/indirect
• same language/terminology
• logical sequence/argumentation
• translation/translators
• non-verbal

r Cultural impacts of larger social structures (ideology/religion, institutional and

organizational structures)

• cooperative/conflict-oriented ideologies/religions
• structures of family, neighborhoods, businesses, governments

r Cultural views toward and the role of third-parties

• direct/indirect
• formal/informal
• mediation structures
• mediation role and procedures

r Cultural views toward venue and space

• outdoors/indoors
• formal/informal
• set-up/structure
• distance/proximity

28
Such an analysis produces a multifaceted image of the "conflict culture" of a society. An
image derived in this way can serve as a point of departure for technical cooperation.
Practical experience to date in developing countries shows a wide variety of traditional
conflict resolution mechanisms, including many elements that approach our own under-
standing of mediation. Thus, numerous cultures make use of a third person as conflict
mediator. As already explained in Section 2.9, these mediators differ from one another
just as the process of conflict mediation does: for instance, according to the degree of
influence exercised on the decision-making process, the result, the relation to the
conflicting parties, the extent of neutrality, partiality, and much more (cf. Box 9).

3.4 Operational planning

Once the decision for a broad application of CM procedures has been taken on the policy
level, in order to put them into operation a number of basic questions must be answered,
of which the following are examples:

r In which cases should CM procedures be used?

• political dialogues
• legislative negotiations
• site-specific environmental problems
• enforcement problems or deficiencies
• conflicts between state institutions

r What type of CM procedures should be used?

• cooperative decision-making
• third party assistance
• arbitration

r According to what criteria can/should suitable cases be selected?

• basic negotiability of interests

• simplicity/complexity
• identifiability of parties
• problem-solving potential
• readiness to compromise
• slight risk of failure
• urgency of problem

r Who can/should initiate a CM procedure?

• state sector (ministry, parliament, executing authorities, etc.)

• NGOs, churches (e.g., in Bangladesh), universities
• private sector (industry, associations: e.g., in Singapore, Hong Kong)

r Who should appear as independent conflict mediator?

• government officials
• private professional mediators
• credible, available, independent and/or recognized individuals
• volunteers (unpaid: e.g., in Sri Lanka)

29
r How can the neutrality of potential mediators be assured?

• selection of independent mediators

• working in teams
• supervision
• code of behavior/ethical rules

r How can/should the use of CM procedures be firmly established organizationally

and institutionally?

• within the framework of an existing organization

• by founding a new state organization
• by founding an independent organization
• within a network
• through private professional mediators

r What services should a potential mediating organization provide?

• disseminating information
• supplying a pool of mediators
• documenting cases, supplying literature

These questions arise whenever institutionalization is attempted. For development

cooperation, a wide range opens up of possible advisory and support services, which will
be more specifically described in the next section.

30
4. Approaches for development cooperation

Probably there will not be in the foreseeable future any policy planning projects in the
environment that deal exclusively or even primarily with conflict management (CM). There
is much to suggest that GTZ, on the one hand, should concentrate on selected cases
where consultancy services are needed on aspects of CM procedures and, on the other,
on integrating advisory services in this sector into the broader approach of policy
planning, to which environmental legislation, environmental planning, environmental
information systems and reporting, etc., all belong. CM is not an independent field of
cooperation, but rather an option in projects which are concerned with institutional
development in the environment.

Objectives, activities and their results, and the approach taken by cooperation programs
in this field depend strongly on the initial situation and the point of intervention in each
instance. Whether, and in what form, CM procedures may be integrated into cooperation
should be decided in dialogue with participants. The extent to which this is advisable and
realistic, however, can be examined in the following cases:

• projects concerned with policy planning and institutional development in the

environment
• projects concerned with designing or implementing national environmental action
plans, national strategies for sustainable development and similar plans
• projects concerned with environmental planning
• projects concerned with protecting the environment and natural resources, especially
in the areas of regional rural development, combat of desertification, forestry
management and nature conservation
• projects concerned with advising a government, particularly in regard to
decentralization
• projects concerned with environmental related training and upgrading or with university
curriculum development
• projects dealing with technical and/ or financial cooperation in the areas of energy and
water supply, sewage and waste disposal, etc.

The points at which intervention is possible vary according to the point in the project
cycle. While integration of assistance in policy planning can be decided on through
dialogue in the course of initiating, identifying, testing and planning new projects, projects
already well under way are less flexible. Here project progress reviews, evaluations, and
negotiations about prolongation furnish an opportunity to begin a dialogue on these
questions with the partner. It should be made sure, however, that the structure of the
partnership allows a good chance for an initiative in the CM area to succeed. Beyond this,
the policy dialogue with the German Federal Ministry for Economic Cooperation and
Development (BMZ) and accompanying pilot activities - for example, in the context of the
Pilot Project Institutional Development in Environment - can provide occasions for dealing
with this issue. Basically, it should be ascertained here to what extent collaboration is
advisable and possible between various technical cooperation (TC) projects, and between
financial cooperation (FC) and TC.

4.1 Principles of cooperation

The chance of achieving lasting success with environmental policy planning and
institutional development in the environment increases with the partners’ sense of
"ownership". This, however, does not preclude the possibility that individual institutions

31
(government institutions as well) may behave passively at first, showing little interest in
CM procedures. A necessary precondition is the existence of individuals or organizations -
e.g., university professors, legal-aid NGOs, as well as concerned decision-makers in
politics and economic life - who assume an effective promotional role as "local
champions" of the procedure.

For TC organizations, this means that participation and dialogue-oriented research,

analysis and planning methods should be applied to the greatest possible extent. In the
area of implementation, everything depends on a clear role-definition for the local partner
on one hand, and for external contributions on the other. In no case will the pure transfer
of expertise suffice to shape an effective policy planning program. This, however, does
not necessarily rule out that external contribution restricts itself to such matters.

This applies so much the more as experience in industrialized countries shows that, under
some circumstances, a considerable time span can lie between the first debates (with a
legal emphasis) about CM procedures and their (gradual) adoption16. Due to the
multitude of relevant actors, (in part) divergent interests, and the culture-specific problem-
solving mechanisms for conflict resolution that must be considered, the processes
involved are mostly not linear, but partially erratic, iterative and conditional on changing
political and economic trends.

Therefore, next to the "ownership" question, the flexibility and transparency of planning
and implementation are of central importance. Process orientation, meaning the step-
by-step, iterative planning and implementation of activities should therefore basically
characterize policy planning programs in the environment. Such programs should - not
least because of the considerable need for information - be viewed and implemented as
"joint learning processes." Implementation objectives such as, for example, "CM
procedures adapted at all administrative levels," can serve at best as beacons which one
approaches in small steps, especially since not a single partner institution can guarantee
in advance the reaching of these objectives. Therefore, results or indicators for policy
planning programs in the environment should be so formulated that they primarily state
something about the direction and quality of the consensus and decision-making
processes (for instance: "Law faculties take up the theme of ‘conflict management’ for the
first time as part of environmental law lectures"; "Law association requests training course
in mediation"; "Environment minister introduces the theme during ministerial consultation";
"Chamber of industry and commerce establishes an advisory office," etc.)

4.2 Partners in cooperation

The question of target groups and partners for cooperation in environmental conflict
management can not be answered in general terms. While the long-term development
objective is to institutionalize the establishment and application of CM procedures on all
levels (for example: "CM procedures are independently and successfully applied by
parties to environmental conflicts in a manner consistent with sustainable environmental
protection"), medium-term project objectives will concentrate on the development of
institutional structures: a dispute design system, as it is called.

The corresponding programs or services that Germany contributes can seldom be limited
to one partner organization. Although environmental ministries usually have responsibility
for and control of the instruments by which environmental policy is steered, the planning

16 Germany lags a good fifteen years behind the USA in making CM a ‘socially acceptable’
topic for discussion. Even though since the end of the '80s several dozen mediation or
mediation-like processes have taken place, nevertheless any institutionalization is still
remote.

32
and use of CM procedures require the involvement of other institutions in the state and
private sectors. Here the fact that government environmental institutions are all too often
among the "lightweights" must be taken into account, so that it is as important to form
strategic alliances as it is to concentrate fragmented areas of responsibility.

Therefore, policy planning in the environment should strive for a deliberate diversification
of partners as early as the planning stage. This can, but must not necessarily, take the
form of a diversification of executing organizations. It is also conceivable that the projects
in question be established on "neutral ground": i.e., outside of the formal executing
organization. For CM procedures this could be, for example, a law faculty.

When configuring and implementing a range of environmental policy instruments or legal

conditions, a relatively high hierarchical level is addressed. In many cases, especially in
advanced phases, the first option to suggest itself will be to set up policy planning projects
at the environment ministry, where responsibility, control and also, usually, the role of
promoter in the state sector lie. Contact with those at the leadership level is important,
although the immediate counterpart on the working level can be a policy planning
department, or a (national) environmental authority, to the degree that it has the
necessary competency and is charged on the policy level with developing environmental
policy concepts. Establishing the project at appropriate community or provincial
institutions is also conceivable, when the federal structure and the jurisdictions of the
regional administrative bodies permit (for example, a municipal environmental office).

4.3 Phases and key activity areas

What possible starting points for TC support are there, and when is it appropriate? Rather
simply put, TC support might take two directions which are not mutually exclusive, but
which differ considerably in their range:

r Support for pilot cases (P)

r Support for the institutionalizing of CM procedures (I)

In the first instance, the solution of a site-specific conflict, for example, can be made the
object of a pilot case. As explained at the beginning of chapter 4, this can occur under
some circumstances even in the context of a project supported by TC. The use of TC to
support a pilot case is an option when

• it is a sector-oriented, spatially limited project

• the conflict can be resolved within the framework of the hierarchical levels
cooperating with the project
• there is as yet no TC project for policy planning or institutional development in
the environment

The type of projects for which support of this kind would be appropriate include as a rule
all resource management and waste management projects.

33
In contrast, support for institutionalizing CM procedures can be considered only if TC
projects exist whose focus is explicitly institutional development/policy planning in the
environment. For this type of project, which, however, can usefully be supplemented by
support in the form of pilot cases17, support for the institutionalization clearly takes
precedence. The key questions for institutionalization are:

• What is institutionalization?
• Why institutionalize?
• What should be institutionalized?
• How is institutionalization brought about?

The first two questions concern practical legal issues and governmental philosophy, and
must be subject to an internal clarification process. At this stage, TC can only contribute
to a modest extent. In contrast, a broad range of support possibilities opens up regarding
answers to the remaining questions.

To answer the question what institutionalization is, it will be helpful at the start to look at
the various components that are possible objects of institutionalizing (cf. Box 13).
Basically, all the areas named come into consideration. However, whether they should be
institutionalized at all and, if so, with which of them one should begin, and how, are
questions with which TC can concern itself. It is also not out of the question to
institutionalize in several areas simultaneously.

Box 13 Copyright CDR Associates

Institutionalization components

values, training of
norms, behavior/skills of
attitudes of the
• participants
• agencies • Intermediaries (e.g.,
• users WHO)
• the public
regarding cooperative
problem solving

Identification and Development of

resolution of pilot cases
• general modes of
provides training for participants procedure
in procedures/skills and shows • specific strategies
the success of ADR procedures.

Structuring
• rules
• procedural regulations
• tasking
• organizational structures

17 Institutionalizing always requires reference to one’s own experience. Therefore, for a

broader application of CM procedures, gaining experience in the context of pilot cases - to
which one can frequently resort - is indispensable.

34
Depending on the status of the discussion in the partner country concerned, a classic18
sequence of phases can be distinguished, within which specific kinds of support are
conceivable:

• preparation
• planning
• implementation, monitoring and evaluation

The phases require advising at varying levels of intensity. Accordingly, various types of
advising are employed.19

In connection with policy planning projects in the environment, GTZ offers a service
package which may be used subject to the status and commission:

• As part of project identification, GTZ conducts preliminary discussions with

representatives of concerned organizations, "local champions," etc., and supports
preliminary pilot activities when necessary, especially in the area of training and
upgrading. Candidates are field staff in GTZ projects and project administration
services who are familiar with the CM issues. Additionally, the pilot project on IDE, as it
proceeds in selected countries, can provide support through short-term experts. If
necessary, study and experts funds can also be used here.

• Advisory services in project planning and project appraisal is fruitful if relevant ideas or
applications from developing countries are at hand. This phase offers an especially
good opportunity, in the context of an expanded project appraisal over a longer time
period, to clarify the participant or partner structure and/or to advise in the
development of a conception and procedure.

• In the framework of the range of instruments described above, assisting partner

institutions in the implementation of projects on policy planning and IDE. In the
preparatory phase, due to numerous imponderables, it may be advisable to resort to
the instrument of the "open orientation phase," which permits the development of a
suitable concept and implementation of initial pilot activities together with the partner
over a longer time period, without being committed at this early stage to long-term
collaboration.

• Monitoring and evaluation in the form of project progress reviews, etc.

In the preparatory phase, individual decision-makers or potential actors such as

industrial associations, national NGOs, etc., express a vague interest in CM procedures.
The discussion of extra-juridical forms of conflict management is still in the beginning
stages, conceptions of how to apply it are still unclear, and expectations are conflicting. At
such a stage, it can be useful to attempt, through wide-ranging discussions of the
chances and risks involved, to reach a common conception of CM procedures.

18 "Classic" in the sense that a country is a clean slate with regard to CM procedures. But as a
rule this is not so. More probably, several phases will be in progress at the same time, and
institutionalization will proceed in an iterative and erratic process. Supporting services can
therefore be offered simultaneously in various phases.
19 For types of advising, see also Annex 5.

35
Box 14
Preparatory Phase: possible activities
• Provision of "infrastructure" for interested parties, decision-makers, etc. ("tea-and-cookie role")
• Holding national or international conferences, workshops and seminars for experts in order to
introduce and disseminate the principles of and practical experience with conflict management
• Identification of "local champions" and potential multipliers
• Fact-finding missions to afford potential multipliers the opportunity of acquainting themselves on-
site with CM procedures and conditions for their use
• Support for establishing curricula/courses of training at universities (law faculties) in developing
countries
• Making contacts and initiating cooperation between relevant institutions in developing and
industrialized countries
• Advising/awareness-raising for various groups of actors (industry, NGOs, labor unions,
churches, etc.)
• Seconding multipliers to relevant training and upgrading courses in universities, training centers
or independent professionals in the field
• Support for "local champions" through material such as documented pilot cases from other
developing countries, literature, or through seconding to attend relevant (training) events
• Systematic evaluation of local case-studies
• Analysis of "conflict culture"
• Coordination of different conceptions of conflict management
• Promotion of the founding of a national forum with interested ministers, the public and other
donors

In the planning phase, political decision-makers or other important non-governmental

actors (e.g., industrial associations) have decided on their readiness to adopt and apply
CM procedures. Questions increasingly arise of institutional and possibly legislative
integration, of adaptation to existing mechanisms, of areas of answerability, and of
operational planning. Beside the continuation of the above-mentioned activities, additional
tasks and possibilities for support arise.

Box 15
Planning phase: possible areas of advisory services
• Advising the environmental ministry/environmental agency in planning the institutionalization
process
• Advising the environmental ministry/environmental agency in arranging the necessary
coordination discussions
• Support for selected pilot cases (selection, development of criteria, infrastructure, etc.)
• Holding events related to special issues of institutionalization
• Organization/implementation of seminars/specialist events for the exchange of experience with
representatives from other developing countries on issues of institutionalization
• Documentation of relevant processes in other developing countries
• Advising and support in setting up centers of expertise
• Initiation of cooperative relationships with relevant institutions
• Planning, proposal and implementation of training and upgrading events with specific curricula
for various administrative levels
• Development of a communication strategy for the dissemination of CM procedures20
• Adaptation of procedures to, e.g., sociocultural and legal conditions
• Clarification of tasks among participating institutions
• Promotion of networking (newsletters, databases, etc.)
• Establishing communication with the public (press releases, newsletters, etc.)

20 On the theme of "communication", a GTZ/PVI OE 402 publication will appear soon.

36
In the implementation phase, CM procedures are carried out on the basis of operational
planning and subjected concurrently to intensive monitoring and evaluation. By this time,
(partial) data are at hand regarding many questions, and experience provides feedback
which allows adaptation of procedures. Further opportunities for TC arise at this point,
both in the context of pilot cases and of institutionalization: some overlapping is
unavoidable here.

Box 16
Implementation phase: possible areas of advisory services
• Support, documentation and preparation of pilot cases (P)
• Financing of mediators (P)
• Support in implementing agreements (P)
• Case-by-case support for "weak groups" in correcting informational imbalances
• Training of mediators from "disadvantaged" groups (P)
• Professional advising for legal aid NGOs, among others (P)
• Supervision and coaching of mediators (P + I)
• Advising the executing organization in implementing procedures (P + I)
• Assessment of results and their implementation (P + I)
• Organization of training in developing countries (I)
• Composing country reports on putting CM procedures into practice (I)
• Legal advising: on the "adaptation" of CM procedures to existing administrative structures: if
necessary, in extending application to negotiations about laws (I)
• Systematic training to strengthen local capacities (I)

The enumerated possibilities are not exhaustive. They must also be specified in each
case and adjusted to circumstances. It is unlikely that all of the listed support activities
can be accomplished through the German contribution alone. The project partner must,
beside providing adequate political back-up, also make its own substantive contributions.
As the institutionalization process progresses, and with it the accompanying
professionalization, however, local advisory capacities will come into being that should be
put to increasing use.

4.4 Cooperation among development cooperation institutions

Cooperation with the Deutsche Stiftung für internationale Entwicklung (DSE) (German
Foundation for International Development) is a possibility, especially in the field of training
and upgrading. The Zentralstelle für öffentliche Verwaltung (Public Administration
Promotion Centre) of the DSE in Berlin has for several years offered advanced training
programs in the field of environmental administration for specialist and management
personnel who are environmental administrators in developing countries (especially South
Asia and Africa). These programs employ seminars, training courses and international
conferences and second consulting experts. The work focuses on major issues in
environmental administration, management, planning and information. Recently training
modules on the use of CM and capacity-building procedures in the environmental sector
have been developed which are used in seminars and training courses in both the
German Federal Republic and in developing countries. For the future, it would be helpful
if, step by step on the basis of past experience, specialized training programs could be
developed which imparted at an advanced level practically-oriented knowledge and
experience regarding the design and implementation of CM procedures.

In developing countries where there is a lack of the specific qualification profiles that are
important for designing or implementing CM procedures in environmental administration,
it may be advisable to second integrated experts, which is done through the Centrum für
internationale Migration und Entwicklung (CIM).

37
With regard to political foundations and other non-governmental development cooperation
institutions, too, numerous points of contact arise in matters of policy advising in the
environmental sector. This is especially true in the preparatory phase, when everything
depends on the creation of pluralistic forums for a national policy dialogue, on the
involvement of political decision-makers, and on public relations and cooperative
research.

For the latter, the Deutscher Akademischer Austauschdienst (DAAD) (German Academic
Exchange Service) is another cooperating partner. It promotes, among other things,
short-term periods of study in Germany and other countries for scientists from developing
countries. Members of faculties of law concerned with issues of institutionalization and
possible adaptation to existing legal traditions could be a potential target group here.

A broad field of cooperation also opens up in the framework of partnership with

universities. Thus, the ETH in Zurich is working on an environmental conflict research
program in partnership with the University of Asmara/Eritrea. Similar partnership
programs with German universities are also conceivable, in which faculties of law and
management should also be involved.

These points of contact and possibilities for cooperation, however, are opposed by
difficulties arising from the pluralistic nature of German development cooperation.
Nevertheless, on the whole they are outweighed in the area of environmental policy
advising and capacity-building by the opportunities growing out of multi-sectoral
cooperation.

38
5. Concluding remarks

It is difficult at the present to speculate on what the future significance of alternative CM

procedures might be. Even in the USA, only a small percentage of environmental conflicts
are dealt with in this way: recent legislation will increase their numbers, however. There
are two grounds for supposing that such procedures will be gaining greater significance in
developing countries: for one, it may be assumed that environmental conflicts will
increase. Satisfactory solutions are unlikely through established - often overburdened -
administrative and judicial channels: thus alternatives must be sought. For another,
current capacity-building efforts in developing countries that are tied to CM procedures
will hasten the revival of traditional forms of conflict resolution. The broader and the more
positive experience with these procedures turns out to be, the more this process will
multiply. The specific conditions for successfully applying CM procedures are as varied as
the partner countries themselves. Technical cooperation should welcome this challenging
task. The success of cooperation in this sector can only be expected in the longer term,
and is not always apparent at the start. Only relatively "soft" process indicators suggest
positive effects at this point in time. So these must be carefully watched.

This means that the counterpart - for his part - must be ready to hold his breath for a
while, yet be willing to cooperate in environmental policy sector advising in the longer
term, at least in view of the social and political aspects: CM procedures are clearly not
self-serving, but serve above all the reaching of "better" decisions. In this way they serve
as well to promote a general sense of responsibility and a readiness to translate ideas
into action.

The pluralistic dimension presents a great opportunity precisely for the institutional variety
of the German range of technical cooperation instruments. To get the most out of this
potential, however, participating institutions will have to display greater flexibility toward
one another and more coordination on site.

39
Selected literature

Akademie für Natur und Umwelt des Landes Schleswig-Holstein (Publ.): Mediation.
Verhandlungen als Mittel der Konsensfindung bei Umweltstreitigkeiten,
Neumünster, 1994.

Beck, Reinhilde; Schwarz, Gotthart: Konfliktmanagement. Alling, 1995

Bingham, Gail: The Conservation Foundation. Resolving environmental disputes. A

decade of experience, Washington, D.C., 1986.

Carpenter, Susan; Kennedy, W.J.D. Managing Public Disputes, A Practical Guide to

Handling Conflict and Reaching Agreements, San Francisco, London, 1988.

Claus, Frank; Wiedemann, Peter M. (Publ.): Umweltkonflikte. Vermittlungsverfahren zu

ihrer Lösung, Praxisberichte, Taunusstein, 1994.

Dally, Andreas; Weidner, Helmut; Fietkau, Hans-Joachim: Mediation als politischer

und sozialer Prozeß, Rehburg-Loccum, 1994.

Deutsche Gesellschaft für technische Zusammenarbeit GmbH (Publ.): Mediation/

Konfliktmanagement im Umweltbereich und seine Bedeutung im Rahmen der
technischen Zusammenarbeit. Dokumentation eines Fachgesprächs am
10.11.1995 in der GTZ, Eschborn, Nr. 402/95 d PVI, Bonn/Eschborn, 1995.

Fietkau, Hans-Joachim: Psychologische Ansätze zu Mediationsverfahren im

Umweltschutz, WZB, 1991.

Gans, Brigitte - Gesellschaft für ökologische Kommunikation GmbH (ökom):

Mediation. Ein Weg des Umgangs mit Konflikten in der räumlichen Planung?
München, 1994.

Gaßner, Hartmut; Holznagel, B.; Lahl, Uwe (Publ.): Mediation. Verhandlungen als
Mittel der Konsensfindung bei Umweltstreitigkeiten, Bonn, 1992.

Holznagel, Bernd: Konfliklösung durch Verhandlungen, Hamburg, 1990.

Gleim-Egg, Heidrun: Kommunikative Problembewältigung in Staat und Privatwirtschaft,

Speyer, 1995.

Gupta, Nandini; Beger, Gudrun: International Academy of the Environment -

Geneva (Publ.): Environmental conflict and resolution. Annotated bibliography
bilingual French and English, Geneva, 1994.

International Academy of the Environment: La résolution des conflits

environnementaux, Sousse, Tunisie, 30 Mai - 3 Juin 1994; Genève, 1994.

Ibid.: Environmental dispute management, Antalya, Turkey, 9-13 May 1994; Geneva,
1994.

40
International Academy of the Environment/Deutsche Gesellschaft für technische
Zusammenarbeit GmbH (GTZ): Environmental Mediation and Negotiation -
Sharing experiences through case studies , Proceedings of the international
conference held in Geneva, Switzerland, November, 1995; Germany, 1996.

Kucharzewski, Irmgard: Vermittlungs- und Verhandlungsverfahren in der

Abfallentsorgung. Amerikanische Erfahrungen - deutsche Perspektiven,
Dortmund, 1994.

Moore, Christopher W.: The mediation process. Practical strategies for resolving
conflict, Boulder, 1986.

Moore, Christopher; Santosa, Mas Achmad: Developing Appropriate Environmental

Conflict Management Procedures in Indonesia. Integrating Traditional and New
Approaches, In: Cultural Survival Quarterly, 1995, H.3.

Wiedemann, Peter M.: Mediationsverfahren - Dialog im Widerspruch. Jülich, no yr.

Ibid.: Mediation bei umweltrelevanten Vorhaben: Entwicklungen, Aufgaben und

Handlungsfelder, Jülich, 1993.

Wiedemann, Peter; Karger, Cornelia; Claus, Frank; Gremler, Dieter: Runder Tisch zur
Deponiestandortsuche Bremen, Jülich, 1994.

Wiedemann, Peter; Karger, Cornelia; Der Einsatz von Konfliktmittlungsverfahren bei

entsorgungswirtschaftlichen Vorhaben: Praxisbeispiele und
Handlungsempfehlungen, no loc., no yr.

Zilleßen, Horst; Dienel, Peter C.; Strubelt, Wendelin: Die Modernisierung der
Demokratie. Internationale Ansätze, Opladen, 1993.

41
 Annex 1

An example for procedural rules of order (after Carpenter and Kennedy)

I. General

1. The negotiation round is answerable for the progression and outcome of this
project. Following the first meeting, at which information about the project is
exchanged, negotiating issues are established and a schedule drawn up.

2. The round of negotiations may set up sub-groups composed of its own members
or other persons. These sub-groups have the task of studying and discussing
particular issues intensively. Final authority remains, however, with the original
negotiation round.

3. Since the success of the negotiation depends on the participants’ readiness to

cooperate, members must accept the following guidelines:

a) Personal abuse is not tolerated.

b) The participants’ motivation and intentions are not to be challenged.
c) The participants’ personal integrity and values are to be respected.
Stereotyping is to be avoided.
d) Promises are not to be made lightly and are to be kept. Delay tactics initiated
to avoid undesirable results are not accepted.
e) Lack of agreement is viewed as a problem to be solved and not as a battle to
be won.

II. Substitutes and observers

1. Since in the end the success of the negotiations depends on personal

relationships and trust among the parties, substitution of participants is not
permitted.

2. Before a decision may be made in regard to a sub-point, sufficient time will be

allowed for consultation with the reference group or with legal or professional
counsel. Technical experts may be invited at any time to contribute additional
information. Only observers who have been specifically invited may participate.

3. As soon as a participant in the negotiations makes known that s/he can no longer
take part continually in the negotiations, a permanent substitute may be selected.

1
III. Information

1. All relevant information is made available to the negotiating parties.

2. Information that may be used to support one’s own position is to be made known
to and shared with all participants. Requests for privileged treatment are to be
allowed only with express justification and acceptance by the entire round of
negotiation.

3. Reliable data are to be accepted.

4. Information may not be withheld for tactical reasons.

5. Statements and documents used in the course of the negotiations may not be
used as evidence in administrative or court proceedings. However, the parties are
at liberty to look to their rights. At the same time they should be aware that the
initiation of a court proceeding may hinder the negotiation process and might
affect their credibility as participants in negotiation.

IV. Contact to the media

The negotiations are not open to members of the press. However, the round of
negotiation commits itself to issue regular reports.

V. Application

It is the task of the parties to the negotiations and of the mediator to see that the
procedural rules of order are observed.

2
 Annex 2

An example of correction of informational imbalances

Because of the complexity of a project to renovate an occupied waste disposal site in

Osnabrück (Germany), the municipal environmental authority sought counsel in the form
of an advisory committee. This advisory committee, made up of concerned area
residents, was to propose recommendations. One of the mediation team's central tasks
was to see that the advisory committee became better informed. The following measures
were taken to this end:

• Fliers with basic information appear on a regular basis in broadly comprehensible form.
• Varieties of press contact: the mediator drafts press releases, which the committee
delegates prepare for the press.
• A permanent exhibit is set up for the general public in the foyer of city hall. Soil cross
sections, finds and discoveries, historical maps, interim results, etc. are graphically
displayed.
• The members of the advisory committee have full right of access to files and
documents.
• Appraisers present results in reports, which the mediator compiles and lays out in final
form.
• A series of seminars are held on toxicology for members of the advisory committee.
• A special meeting is held on the renovation of occupied toxic waste sites.

Appraisal

The participants are for the most part satisfied with the process so far. There is broad
acceptance of the expert level. The preparation, conducting and follow-up of the meetings
have created an atmosphere of trust that allows existing conflicts to be resolved
objectively. The advisory committee is valued as a successful attempt to promote
understanding between the municipal administration and its citizens.

3
 Annex 3

Conflict management procedures

1. Cooperative decision-making

At the left end of the continuum there is a series of cooperative decision-making

procedures that require no third-party support. Cooperative problem-solving procedures
belong in this category, as do negotiations and information-exchange meetings.

Information exchange meetings are those in which participants attempt to avoid conflict
early on by exchanging expectations, positions and interests. The meetings are often the
first step in productive joint problem solving or negotiation.

Within the scope of cooperative problem-solving, issues of mutual interest are

addressed. This procedure is best suited to conflicts that are only slightly polarized or in
which the parties have not yet adopted any firm positions. This is usually the step that
immediately follows the parties’ recognition that a problem exists and that a solution may
affect everyone, whether positively or negatively.

Negotiation is the major CM procedure that does not involve mediators. Negotiations as
a rule involve two or more parties with real or supposed conflicts of interest. In the scope
of voluntary negotiations of limited duration, needs and interests are formulated and
proposals for (partial) solutions are worked out. The character of negotiations may vary
widely depending on whether the participants stick closely to their positions or leave their
interests open. Nearly all CM procedures in which the outcome of the conflict remains in
the hands of the participating parties are variations of the negotiating process.

2. Third parties assistance with negotiations or cooperative problem solving

The majority of all conflicts are solved by the participating parties themselves through joint
cooperative decision-making. Only a comparatively small number of conflicts requires the
involvement of a third party. Third-party assistance involves the intervention of a neutral
and impartial person (or persons) in a conflict in order to offer the negotiating partners
specific assistance, which may be substantive or procedural in nature, or which may
affect relationships.

The various forms of third-party support are categorized below. In actual conflicts it is not
unthinkable for a third party to adopt more than one role or to offer various forms of
support at one time.

2.1 Relationship building assistance

Often psychological barriers between or among the parties to a conflict cause

negotiations to break down. Such barriers are caused by false perceptions or stereotyping
the behavior, aims and motives of the opposing side, by communication problems having
to do with style, form and content of information provided, and also by repeatedly
negatively-valued behavior, which arouses resistance to cooperation.

A third party may be necessary to help opposing parties overcome these psychological
barriers and form positive relationships. Several procedures are described below.

4
Counseling and therapy: Individual counseling and therapy are typical ways of analyzing
psychological barriers. Marriage and divorce counseling are the fields of conflict in which
these procedures are commonly used.

Conciliation: Often parties to a conflict - although interested in resolution - hesitate to

take the initiative. The establishment of communication between the parties - possibly at a
neutral place through a neutral third person - generally gets negotiations started.
Conciliation is often practiced in connection with procedural support such as coaching,
training, facilitation or mediation (see also 2.4.2.2). Examples of such activities in the
sphere of national and international conflicts appear daily in the press.

Team building: Team building is a procedure that aims to resolve existing conflicts
within, between or among groups that are currently working together or will do so in
future.21

Team building within groups aims to increase common understanding of roles, differing
work styles and decision-making processes.

An example of team building between or among groups is the clarification process

between government administration and private consultants or contractors so that a
common understanding of goal-setting, individual and organizational decision-making
processes, channels of communication, etc. are created.

2.2 Procedural assistance with negotiations

Coaching or process consultation: This kind of assistance promotes proposals for the
improvement of the negotiation process, including procedural proposals having to do with
"how": How may I make conciliatory gestures? How can I improve communication? How
may I best begin negotiations? How do I identify interests? How do I make an offer? How
do I communicate possible alternatives? Etc.

Training: Training is another form of procedural assistance. The participating parties -

together or separately - are trained in effective negotiation. Training frequently goes
beyond negotiation and offers participants - in particular in the case of a common training
process - the possibility of getting to know one another, of learning modes of procedure
and skills, of adapting their expectations to the goals and results of negotiations and thus
of improving the chances for the actual negotiation process.

Facilitation: Facilitation22 consists of assistance with the design and implementation of a

negotiation process by a third party who is impartial vis-à-vis the negotiation issue. The
facilitator, unlike the coach described above, works with all the participants together and
gives procedural tips on how the group may function efficiently and attain a result
together. The facilitator may be either a member of one of the groups participating or an
external consultant. S/he must not necessarily be an outsider, but s/he shooed remain
impartial and limit him or herself to procedural issues.

21 In German the word Teambildung refers only to intra-group conflicts; in the USA the term
"team building" also refers to inter-group conflicts.
22 In German the term Facilitator is nearly synonymous with the term Moderator. In the USA
the term is used much more precisely and narrowly for a particular kind of negotiating
process moderation (v. Section 5.2).

5
Facilitation may be used, e.g., to improve data exchange in public meetings when the
availability of relevant information is involved or in negotiations that are intended to lead to
a particular result. In the latter case, the facilitator may help the parties make up a list of
results acceptable to both sides or put together decision preferences which then are
submitted for decision to a higher authority.

In general, facilitation may be used when the participants or negotiation issues are not
particularly polarized, when the participants are not particularly strongly committed to the
issue, and the parties are certain that they will be able to work out together a solution
acceptable to all.

2.3 Substantive assistance with negotiations

Although disputes based on procedural issues may be brought closer to a solution,

disputes based on substantive questions require other solutions.

In cases in which, for example, data constitute the central problem, procedures are
required that ensure that negotiations do not break down because of missing information,
different views of what is relevant, differing forms of research and data analysis, or
different criteria for evaluation. Substantive assistance with negotiations may thus include
the collection, evaluation and management of data, but it may also propose procedures
through which data may be collected in a manner that makes them accessible to all. The
following procedures serve the improvement of informational bases that are necessary for
effective decision-making.

Early neutral evaluation: The core of this procedure is a non-binding prognosis by a

respected and well-informed person (usually a former judge or lawyer) on the possible
outcome of a conflict if decided in court. It is assumed that the parties to the conflict thus
get a more realistic idea of how their conflict might possibly be seen and judged by a
court. This leads in the rule to the parties’ being better prepared to reach a realistic,
reasonable and mutually acceptable agreement.

Technical advisory boards: It is the task of technical advisors to prepare information or

to reconcile differing data evaluations with one another. In these cases impartial third
parties review the data that are up for discussion and make proposals on how the
differing interpretations may be reconciled. These proposals may also be of a procedural
nature and also include specific substantive recommendations.

Advisory mediation: Advisory mediation presents a variation of the mediation already

presented above in the scope of procedural support. In this procedure the mediator
functions first, as usual, as a process advisor. In case the negotiations come to a dead
end, however, and procedural assistance is of no avail, the parties to the conflict may ask
the mediator to assist substantively as well, without his or her view being binding. The
parties may use the counsel for their further negotiations or refer the conflict to a higher
authority.

Mini-trial: A mini-trial is a relatively new way of identifying and evaluating relevant

information. It constitutes a brief, miniaturized court proceeding devoid of binding
resolutions and without the involvement of an actual judge. A mini-trial is both a
procedural and substantive intervention, which provides decision-makers with detailed
information about the legal background of the conflict. It is based on the assumption that
the ensuing negotiations will be more successful if decision-makers are thoroughly
informed - as they are in a genuine court procedure - on the material-legal view of the
conflict both from their own point of view and that of their opponent.

6
Fact-finding: Fact-finding is a procedure originally applied in labor disputes but used
today in many other areas, too. The basic pattern is very simple: a neutral third party
accepted by all parties to the conflict is authorized to use a "fact-finder" to get to the
bottom of the conflict issue. The result of the research may be an up-to-date status report
that presents both solutions and options and makes, as well, specific (non-binding)
recommendations on how the conflict may be resolved. In either case, the results of the
fact-finding report may be used in further negotiations. It is commissioned, for one thing,
with the expectation that the views of a trustworthy, impartial third party will carry more
weight if the fact-finding report is published, and, for another, with the hope that the report
will be viewed as an unprejudiced, fair and impartial recommendation that the parties to
the conflict will accept.

The settlement conference: The settlement conference is a CM procedure within a court

proceeding and constitutes a customary procedural step in many legal systems. It usually
contains an advance meeting with the adversaries’ lawyers and a settlement judge. The
objective is already in this stage to attain a mutually accepted negotiation result. The
settlement judge does not serve at the same time as the judge in the first instance. The
role of the settlement judge is similar to that of a mediator with the difference that s/he
has particular juridical knowledge and is therefore in a position to comment on possible
judgements on the disputed issue that might emerge from a court proceeding.
Considering this, because of his/her knowledge of the law, his/her status as a judge and
his/her experience with similar cases, the arbitration judge is much more powerful and
influential than a mediator would be.

3. Third party advisory and (non)-binding assistance

In many disputes neither information nor procedural support can succeed in bringing
about agreement. In such cases the objective view or recommendations of an
independent and experienced person may be of use. In the process, this kind of support
resembles a court proceeding, unlike the negotiation and cooperative problem-solving
procedures already described: the case is presented in a more or less judicial form to a
"judge", whose opinion is requested. Negotiation between the parties to the conflict
concerning their own agreement is not the main point here, nor is the aim of such
procedures to help the participants bring the matter to a conclusion directly among
themselves. The point is rather to get a clear recommendation or a binding or non-binding
decision. Such arbitration proceedings strongly resemble court proceedings. Their main
characteristic is the presentation of the case to a third, non-involved and neutral person.
This person is often a lawyer, a person in public life, or an expert on the disputed issue.
What is decisive for the choice of an arbitrator are his/her freedom from prejudice,
fairness, impartiality and acceptance by the participants and his/her capability to evaluate
information and to make decisions based on it. Usually the parties to the conflict have
some say in choosing the arbitrator.

Non-binding arbitration is the best known semi-juridical procedure for resolving conflicts
and has a long tradition in labor disputes.

Binding arbitration differs from non-binding arbitration in that the parties to the conflict
commit themselves to accept the decision. Decisions taken in such cases have legal
validity without, however, constituting precedents, and without the option of revision or
referral to a court.

Mediation arbitration is a variant of the arbitration procedure. In such a procedure a

conflict is mediated by an impartial and neutral third party to the point of deadlock. The

7
mediator is then empowered to make a binding decision on how to overcome this
deadlock. This procedure is not undisputed among professional conflict mediators,
because it removes the separation between procedural support and decision-making and
calls the mediator’s neutrality into question. Besides, it is feared that the opponents may
be less prepared to make information necessary to the resolution of the conflict available
but may instead - if they believe that in the end the mediator will be asked to make a
decision after all - introduce extreme or exaggerated arguments.
Mediation - then arbitration is similar to mediation arbitration, except that two persons
undertake to assist the opposing parties. At first, a mediator works with the parties to the
conflict, and only when they are unable to reach agreement is the procedure passed on to
a different third party - an arbitrator - in order to reach a binding decision. This procedure
thus responds to several of the crucial points of mediation-arbitration.

In "disputes panels", the binding decision of a group of independent and impartial

persons is sought. The manner of selecting these persons may vary. One possibility is
that the parties to the conflict receive a list of potential candidates from a respected
organization that customarily makes impartial persons available. The parties to the
conflict first agree to the number of panel members and then draw up the list together.
The case is then brought before the panel, which first consults and then reaches a
decision.

8
 Annex 4

Formulation of issues in conflict analysis

I. Parties

1. Which are the most important parties and who are their spokespersons?
2. Have interested parties unfavorably affected by the decision already formed an
initiative or group?
3. Are the parties willing to try for a consensual resolution of the conflict?
4. Are the parties in a position to work together?

II. Conflict issue

5. What aspects of the conflict characterize it? Is it a matter of different interests or

differing values?
6. How may the problems best be defined?
7. What are the central conflict issues?
8. What are the second most important conflict issues?
9. Are these issues negotiable?
10. What are the true central interests of each party?
11. What interests do the parties share?
12. What negotiating positions have the parties assumed?
13. What options are there for resolving the conflict?

III. Procedures

14. How do the parties feel about using consensual conflict resolution procedures?
15. Will a consensual process be of use to the parties?
16. Which structural constraints will influence resolution of the conflict (time frame,
legal activities, financial resources)?
17. Which obstacles must be overcome by the procedure?
18. Are any of the parties experienced in consensual conflict resolution?
19. What chances does the procedure have for success?

9
 Annex 5

Varieties of advisory roles

• The bulk of responsibility for the overall program - i.e., for substantive inputs, process
planning and management and for attaining the objective and results - lies in the hands
of the initiator, that is, the external advisors. When the partner desires this form for a
policy planning project in the environment, conditions should be reviewed with
particular care. Basically this form does not meet criteria for sustainability, because it
bespeaks limited readiness on the part of the partner to assume program "ownership".
• The promoter represents a form of advising characterized by a relatively high degree
of intervention without, however, assumption of a line function. The promoter provides
substantive inputs and proposes decisions and initiatives related to process planning
and management.
• Coaching is the classic role of the advisor who advises and trains the partner on every
kind of professional and methodological question without, however, assuming a line
function. This form, too, is typified by relatively high advisory intensity and demands a
thorough clarification of roles and expectations to prevent "backsliding" into other
forms of advising.

• Facilitating23 or process advising is for the most part restricted to conveying selected
know-how. Otherwise facilitators function essentially as advisors for planning,
coordination, communication and decision-making processes among the participants.
They assume responsibility for the flow and quality of decision-making processes, but
not, however, for their results. In this role, the facilitator becomes an even stronger
element of the learning process than in the role just described.

• The loosest form of advising is to be found in the role of the sponsor, who provides
mainly financial support for processes based on agreed-upon objectives without
interfering in their design and evolution. In this case, the responsibility for objectives
and attainment of results lies exclusively with the partners in cooperation.

The classic roles indicated here cannot be strictly separated from one another but must
be viewed on a continuum. Nevertheless, distinguishing among them can be helpful in
defining responsibility. The more indirect and loose the role of the advisor is, the more the
presence of an external on-site advisor is called into question. The following types of
advising are to be distinguished:

• long-term advisory services by experts who are on site during the entire project
duration
• intermittent advisory services, in which if possible the same persons return to the site
on a recurring basis over an extended period of time
• short-term advising, that is, the selective assignment of short-term experts for clearly-
defined and restricted tasks.

A decision must be taken on the extent to which advisor presence is required based on
the agreed role and responsibility of the external advisors and the scope and variety of
their tasks.

23 Facilitation in the sense used here is not identical with the duties of a facilitator in the scope
of facilitation as a CM procedure (see Annex 3, CM procedures). External consultants are
advised not to assume the role of facilitator in a CM procedure.

10
Division 402: Publications to date

As of July 1997

Publication-No. Titel Order-No.

402/93 - 1 d PVI Ökonomische Instrumente der Umweltpolitik: Bedeutung für die P3-001-d
Entwicklung von umweltrelevanten Institutionen im Rahmen der
praktischen EZ out of print

402/93 - 2 d PVI Institutionenentwicklung im Umweltbereich - Ergebnisse eines P3-002-d

GTZ-Mitarbeiter-Workshops
out of print
402/94 - 3 d PVI Ökonomische Instrumente der Umweltpolitik als Beratungsfeld im P3-003-d
Rahmen der TZ - Systematische Kurzdarstellung der in der
Bundesrepublik Deutschland angewandten Instrumente und
relevanter Institutionen

402/94 - 4 d PVI Der Runde Tisch als Programm? Möglichkeiten und Grenzen der P3-004-d
Institutionenförderung im Spannungsfeld von Umwelt und
Entwicklung

402/94 - 4 e PVI The round table as a Programme? Institutional Development P3-004-e

caught between the Environment and Development - Options and
Limitations

402/94 - 5 e PVI Pollution Prevention Through Market-Based Incentives P3-005-e

Two Case Studies on Thailand

402/94 - 6 e PVI The Use of Economic Instruments in the Environmental Policy of P3-006-e
Chile

402/94 - 7 e PVI The Role of Land Tenure and Property Rights in Sustainable P3-007-e
Resource Use: The Case of Benin

402/94 - 7 f PVI Le rôle des systèmes fonciers et des droits de disposition pour la P3-007-f
gestion durable des ressources naturelles: Le cas du Bénin
out of print
402/94 - 8 d RMSH Dokumentation zum Consulting Workshop - Anwendung von P3-008-d
Beteiligungs- und Selbsthilfeansätzen in Vorhaben zum
Ressourcenmanagement

402/94 - 9 d PVI Information, Bildung und Kommunikation im Umweltbereich P3-009-d

402/94 - 10 d RMSH Hinweise auf Schlüsseldokumente für die Anwendung von P3-010-d
Beteiligungs- und Selbsthilfeansätzen im Ressourcenmanagement
out of print
402/94 - 11 d RMSH Beteiligungs- und Selbsthilfeansätze im Ressourcenmanagement - P3-011-d
Ein Positionspapier

402/94 - 11 e RMSH Participatory and self-help approaches in natural resource P3-011-e

management - A position paper

402/95 - 11 f RMSH Participation et auto-promotion dans la gestion des ressources P3-011-f

naturelles - Document de base

402/95 - 11 s RMSH Participación y auto-ayuda en el manejo de recursos naturales - P3-011-s

Documento básico

11
402/95 - 12 d PVI Marktwirtschaftliche Instrumente der Umweltpolitik in Entwicklungs- P3-012-d
ländern - Beiträge zur Institutionenentwicklung und Politikberatung
im Umweltbereich

402/95 - 12 e PVI Market-Based Instruments in Environmental Policy in Developing P3-012-e

Countries - Framework for Policy Planning and Institutional
Development in the Environment

402/95 - 12 f PVI Instruments économiques applicables aux politiques de P3-012-f

l’environne-ment dans les pays en développement - Contributions
au développe-ment institutionnel et à l’assistance technique en
matière de politique de l’environnement

402/95 - 12 s PVI Instrumentos económicos y política ambiental en los paises en P3-012-s

desarrollo - Desarrollo institucional y asesoramiento politico en
materia de protección ambiental

402/95 - 13 d RMSH Die Rolle von Anreizen bei der Anwendung von RMSH als P3-013-d
Vorgehensweise

402/95 - 13 e RMSH Incentives and the NARMS Approach - A hand-out for project desk P3-013-e
officers, consultants and onside project staff

402/95 - 13 f RMSH Le rôle des mesures d'incitation dans l'application de la stratégie P3-013-f
GERNAP - Outil de travail à l’intention des chargés de projets, des
consultants et des collaborateurs de projet

402/95 - 13 s AMREN El papel de los incentivos en la aplicación del enfoque AMREN - P3-013-s
Folleto de información para encargados de proyectos, consultores
y colaboradores de proyectos out of print

402/95 - 14 d PVI Umweltinformation und ihr Management P3-014-d

402/95 - 14 e PVI Environmental information and its management P3-014-e

402/95 - 15 d Biodiv Biologische Vielfalt erhalten! P3-015-d

Eine Aufgabe der Entwicklungszusammenarbeit

402/95 - 16 d Lösungsansätze für den technischen Umweltschutz in kleinen und P3-016-d

mittleren Unternehmen in Entwicklungsländern

402/96 - 16 e Approaches to cleaner production in small and medium-sized P3-016-e

enterprises

402/95 - 17 d PVI Mediation / Konfliktmanagement im Umweltbereich und seine P3-017-d

Bedeutung im Rahmen der TZ
Dokumentation eines Fachgesprächs in der GTZ

402/95 - 18 e RMSH Creating Local Agendas P3-018-e

(A) Participatory Appraisal Methods for Interinstitutional
out of print
collaboration in Integrated Watershed Management - Lessons
from a Colombian Experience
(B) Participatory Planning and Evaluation Methods: Suggestions
for complementary methodologies

402/96 - 19 d PVI Konfliktmanagement im Umweltbereich P3-019-d

Instrument der Umweltpolitik in Entwicklungsländern

402/96 - 19 e PVI Environmental Conflict Management P3-019-e

An environmental policy instrument in developing countries

12
402/96 - 19 f PVI La gestion des conflits dans le domaine de l’environnement - P3-019-f
Instrument de la politique de l’environnement dans les pays en
développement

402/96 - 19 s PVI Manejo de conflictos en el área de medio ambiente - Instrumento P3-019-s

de política ambiental en los países en desarrollo

402/96 - 20 e Environmental Protection in Small and Medium Enterprises in P3-020-e

Developing Countries - Proceedings of the GTZ-workshop

402/96 - 21 d PVI Methodenkompaß - Eine praktische Orientierungshilfe für P3-021-d

Planungs- und Managementaufgaben im Umweltbereich

402/96 - 22 d RMSH Prozeßmonitoring - Eine Arbeitshilfe für Projektmitarbeiter/-innen P3-022-d

402/96 - 22 e RMSH Process Monitoring (ProM) - Work Document for project staff P3-022-e

402/96 - 22 f RMSH Suivi des processus - Un outil de travail pour des collaborateurs de P3-022-f
projet

402/96 - 22 s RMSH Seguimiento de procesos - Una auyuda para personal de P3-022-s

proyectos

402/96 - 23 d PVI Indikatoren der Institutionenentwicklung im Umweltbereich - P3-023-d

Anregungen und Beispiele für Projektplanung und -management

402/96 - PVI Umweltprojekte durch Kommunikation verbessern P3-901-d

402/96 - PVI Erfahrungen und Ansätze der TZ bei der Unterstützung von P3-902-d
Umweltaktionsplänen - Dokumentation eines Erfahrungs-
austausches in der GTZ

402/96 - RMSH Prozeßbegleitende Beratung - P3-903-d

Eine Arbeitshilfe für Berater/-innen im Ressourcenmanagement

402/96 - RMSH In Process Consultancy - P3-903-e

A Work Document for Consultants to Natural Resource
Management Projects
402/96 - RMSH Consultation interne P3-903-f

402/96 - RMSH Asesoramiento a procesos P3-903-s

402/96 - RMSH Toward decentralised Natural Resource Management - P3-904-e

Case study: The village of Balingnar in Burkina Faso

402/96 - PVI Vers une Gestion Decentralisee des Ressources Naturelles - P3-904-f
Cas du village de Balingnar au Burkina Faso

402/96 - PVI Umweltkommunikation in der TZ - P3-905-d

Dokumentation eines Fachgespräches in der GTZ

402/96 - PVI Bibliographie Umweltkommunikation P3-906-d

13
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