Publications

We need to do a better job of documenting and evaluating the dispute resolution experiments currently underway.

All too often, documentation and evaluation are nothing more than an afterthought — the focus of attention only when it is too late to record what actually happened. Typically, evaluation consists of less-than-critical reflections by the participants, intervenors, or funders with the most at stake. And, even when documentation and evaluation are handled by independent observers, such efforts tend to be framed according to the observers' interests, and not with reference to overarching questions at the frontier of theory-building in' the dispute resolution field. These are formidable obstacles to improving practice.

Scholars, government officials, and practitioners have expressed concern over the weaknesses of the federal rulemaking process and the time it often takes to promulgate rules. Given the many instances in which rules have been challenged in court, both the process of rulemaking and the regulations produced seem to have lost legitimacy in the eyes of many regulatees.

There are more than 75 well-documented cases of successful dispute resolution in the public sector (and a great many more that are less well-documented). The evidence attesting to the merits of non-adjudicatory approaches to dispute resolution is mounting rapidly

The legislative process is too primitive to take account of the scientific and technical intricacies of various public policy choices, too easily manipulated by party members, and not especially well suited to reconciling (as opposed to papering over) conflicting values. The administrative processes of government are susceptible to manipulation by those in power, often without any attention to the merits of competing claims.

Mediated negotiation has recently been used to supplement traditional methods of resolving complex public resource allocation disputes in the United States. Although many of these efforts have apparently been successful, procedural concerns have been raised by a number of analysts. In this paper, we focus on five of these concerns: (1) problems of representation, (2) the difficulties of setting an appropriate agenda, (3) obstacles to joint fact finding, (4) difficulties of binding parties to their commitments, and (5) obstacles to monitoring and enforcing negotiated agreements. Our discussion builds on three cases: a negotiated investment strategy undertaken by the state of Connecticut; a dispute over the siting of a low-income housing project in Forest Hills, New York; and an environmental dispute involving energy production facilities along the Hudson River. These experiences indicate that the difficulties associated with mediation can be overcome with the application of innovative techniques, and the assistance of a skillful and astute mediator.

In duplicate contract bridge, several teams of players at different tables receive identical hands of cards, bid, and then play. Possible outcomes of each game vary considerably since, even though the teams are playing the same hands, they may devise bidcling strategies that are more or less effective than those developed by their counterparts at other tables.

Judges often appoint special masters to help with complex cases. In many of the desegregation cases of the 1970s, for example, special masters were assigned to oversee the development and implementation of court-ordered busing plans. In bankruptcy proceedings, special masters serve as court-appointed executors to preside over the liquidation of holdings. Judges have also appointed special masters to serve as "receivers" of public agencies and to oversee implementation of consent decrees involving reforms at prisons and mental institutions.

Public policy disputes involving comp1e.x scientific issues usually entail conflicts not only over those scientific issues but also over the distribution o gains and losses. The presence o scientific or technical dimensions to a dispute should not be allowed to mask underlying distributional considerations. On the other hand science-intensive disputes require special attention. Merely resolving distributional conflicts without and potentially dangerous results. The usual adversarial approach that characterizes the handling o such disputes by agencies and courts is less than ideal or creating an understanding o scientific evidence or the resolution o scientific differences. A process o mediation already applied in a number o significant cases offers strong promise as a superior approach.

Traditional approaches to the siting of potentially hazardous but regionally necessary facilities are often ineffective and lead to drawn-out legal disputes ultimately satisfactory to none of the parties. Research at MIT over the last decade has indicated five factors that may solve the siting puzzle. Application of these principles do not guarantee that a decision will not be disputed but may enhance the possibility of a wise and durable agreement.

Traditional approaches to resolving coastal resource management disputes in the United States often produce less-than-optimal outcomes. Nonadjudicatory approaches such as policy dialogues and mediation can be more effective. This article presents four case studies of such approaches that have proven successful in resolving coastal resource management disputes in Massachusetts, California, and Oregon. These approaches emphasize consensus-building, are based on face to face discussions between contending stakeholders, and include important roles for planners as negotiators and mediators. The article describes four barriers to more widespread use of less adversarial forms of dispute resolution and suggests ways of overcoming those barriers.