Institutionalizing Negotiation

Abstract

Environmental negotiation and mediation are still very much in their infancy. Each effort to resolve a dispute using these techniques involves educating the parties and convincing the skeptics. Often, procedural hurdles must also be overcome. Our system is set up to facilitate judicial review, and in doing so, it can discourage the parties from settling their differences out of court. Rules governing adjudicatory hearings, ex parte communications, access to public meetings, and standing tend to put parties into combative stances. That people nonetheless manage to overcome these obstacles to reach negotiated settlements is evidence of the appeal of alternative techniques.