Mediating environmental enforcement disputes: How well does it work?

ELSEVIER

MEDIATING ENVIRONMENTAL E N F O R C E M E N T DISPUTES: H O W W E L L D O E S IT WORK? Neii G. Sipe and Bruce Stiftei Florida State University

Much has been written about benefits o f using mediation to resolve environmental disputes, however little empirical research exists to substantiate these claims. Using 19 mediated environmental enforcement cases involving Florida's primary environmental regulatory agency, we examine settlement rates, settlement quality, and participant satisfaction with the mediation process and the mediator. The results show that mediation is an effective method f o r settling environmental enforcement disputes-more than 70~0 o f the cases were resolved; participants indicated that they were very satisfied with the mediation process, the final agreement, and the mediator; and that they saved money by using mediation rather than litigation to resolve their disputes.

Over the past several decades the use of mediation to resolve conflict has become increasingly popular. Mediation is the "intervention of an acceptable, impartial, and neutral third party who has no authoritative decision-making power to assist contending parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute" (Moore 1987, p. 6). Mediation is not a new concept but is an adaptation of what has existed in various forms since pre-history (Folberg and Taylor 1986, p. 1). In the United States, mediation first gained prominence with its use in labor-management disputes and international negotiations. Over the past two decades the use of mediation has grown and is being used in a wider variety o f disputes including: divorce;

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community disputes; consumer complaints; small claims; commercial and employee relations; special education; planning and development; development of governmental regulations; and environmental regulation (Wall and Lynn 1993, p. 161). Much o f the enthusiasm for environmental mediation is based on the successes of mediation in labor-management and international negotiations. Advocates of the process claim that mediation can result in quicker, cheaper, and better settlements than those achieved using traditional legal or administrative remedies (e.g., Mernitz 1980, pp. 47-48; Susskind and Weinstein 1980, p. 321; Talbot 1983, p. 100). There is empirical research to back up many o f these claims in international relations (e.g., Hill 1982; Zartman and Touval 1985), labor-management negotiations (Hiltrop 1985; Kochan and Jick 1978; Kolb 1983); community disputes (Cook, Roehl, and Sheppard 1980; Felstiner and Williams 1980; Strena and Westermark 1984); and small claims disputes (McEwen and Maiman 1981; Vidmar 1985), however there has been little empirical research to substantiate these claims for environmental mediation. As Wall and Lynn (1993) argue, it would be inappropriate to transfer the successes of mediation between contexts because mediation is practiced in different ways in different contexts (Kolb 1989). Only two studies (Bingham 1986; Buckle and Thomas-Buckle 1986) examine environmental dispute resolution in a cross-sectional empirical framework. Most of the environmental mediation literature has been dominated by descriptive case studies (e.g., Susskind, Bacow, and Wheeler 1983; Talbot 1983; Bacow and Wheeler 1984; McCubbin 1989; Lobel 1992). The literature in this area has been criticized as biased because it is often written by professional mediators or by activists interested in promoting its use (Nakamura, Church, and Cooper 1991, p. 207; Rabe 1988, p. 591). Nakamura, Church, and Cooper (1991, p. 207) claim that the environmental mediation literature is one of advocacy and Rabe (1988, p. 591) argues that there is a conflict of interest. Cormick (1987, p. 303) has described the situation as a bandwagon with a large and diverse group of riders that has led to questionable applications and unreasonable expectations of success. Jacobs and RuBino (1988, p. 2) express concern over the "almost faddish application" of the process. Roehl and Cook (1985, p. 175) suggest that "the field needs to be careful about its claims. Mediation was oversold by early proponents and then roundly criticized for not achieving the profound impact hoped for." Kresse and Pruitt (1985, p. 196) argue that "it is apparent that the enthusiasm and inventiveness of mediators has thus far outdistanced the ability of researchers to comprehend the mediation process and accurately assess its value." This research effort examines environmental mediation in an empirical framework. Specifically, our interests are in examining the claims that mediation leads to quicker, cheaper, and better quality settlements than litigation or administrative hearings. This research is based on enforcement cases of tbe Florida

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Department of Environmental Protection (DEP), ~ which is the state's environmental regulatory agency and is charged with both permitting and enforcement functions. On an annual basis, D E P processes approximately 1000 environmental enforcement cases of which 200 advance to litigation or prelitigation negotiations. Specifically we examined the agency's mediation efforts under two programs: the Florida circuit court mediation program; and DEP's in-house pilot enforcement mediation pilot program.

Institutional Setting Florida circuit courts began to consider mediation in 1987 when legislation was enacted that encouraged judges to use mediation in an attempt to settle lawsuits (see Fla. Stat. Ch. 44). There are 12 judicial circuits in Florida, and "there is tremendous variety in the way the circuit court programs have been set up throughout the state" (Mason and Press 1992, p. V-l). Because the circuit courts are overburdened with cases, it has become routine for judges to refer cases to mediation. When a case has progressed to the point o f needing a trial date, the presiding judge asks the parties to attempt to mediate their dispute. "Nearly all circuits refer at least part o f their caseload of circuit non-family cases to mediation" (Mason and Press 1992, p. V-l). Thus unlike DEP's pilot mediation program described below, there are no formal guidelines for deciding when a case should be mediated. Each judicial circuit has a list of mediators approved by the Florida Supreme Court. 2 As of July 1992, approximately 850 mediators had been certified 3 by the Supreme Court (Mason and Press 1992). If the parties fail to select a mediator within 10 days, "the court shall appoint a certified mediator selected by rotation or by such other procedures as may be adopted by administrative order of the chief judge in the circuit in which the action is pending" (Fla. R. Civ. P. 1.720). While the number of cases mediated in the circuit courts totaled more than 40,000 during 1991 (Mason and Press 1992, p. V-2), only a few have involved environmental disputes. During the study period from June 1990 to June 1992, there were seven D E P environmental enforcement disputes mediated as part of the circuit court program. One of these cases was dropped from the analysis due to lack of i n f o r m a t i o n : 1 D E P was formed by the merger o f the D e p a r t m e n t o f Environmental Regulation with the D e p a r t m e n t o f Natural Resources effective July 1993. 2 According to the Florida Rules o f Civil Procedure, the parties can choose a certified mediator or a mediator that is not certified given that "in the opinion o f the parties and u p o n review by the presiding judge, is otherwise qualified by training or experience to mediate all o f s o m e o f the issues in the particular case" within l0 days f r o m the date the case was referred to mediation (Fla. R. Civ. P. 1.720). 3 A certified circuit court mediator m u s t be a former j u d g e o f a trial court w h o was a m e m b e r o f the bar o f the state in which the j u d g e presided; or be a m e m b e r in g o o d standing o f the Florida Bar with at least 5 years Florida Practice; and complete a m i n i m u m o f a 40-hour mediation training p r o g r a m certified by the supreme court (Fla. R. Civ. P. 1.760(c)). 4 This case was mediated, but no agreement was reached. A t the time the survey was administered, the case was in active litigation and the parties (on the advice o f their attorneys) chose not to respond.

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The other program examined was DEP's pilot mediation program. It began as a result of DEP's involvement with the Florida circuit court mediation program. 5 In June 1990, DEP initiated a pilot program to evaluate the use of mediation for resolving environmental enforcement disputes with local governments and during the second year enforcement disputes with private parties were included as well. The pilot program was a joint effort o f DEP's Office of General Counsel (OGC) and the Florida Growth Management Conflict Resolution Consortium (CRC). 6 The pilot program ended on June 30, 1992, although DEP continues to use mediation in the manner developed under the pilot program. The following criteria were used to select cases: (1) parties have reached an impasse in negotiations; (2) case is in or about to involve litigation; (3) stakeholders have been identified; (4) issues are clearly identified; (5) parties agree to participate in good faith; (6) parties are willing to make financial commitment to pay for mediator costs; (7) availability of technical information does not present a problem; (8) a continuing relationship among the parties is expected; and (9) if the case is in litigation, the parties will seek judicial concurrence with the mediation effort. Mediators were drawn from a panel of eight selected by CRC at the beginning of the pilot program. 7 The eight-person panel was comprised of six men and two women. Six of the mediators were practicing attorneys and three of the mediators were certified by the Florida Supreme Court. Over the 2-year period, nine public and four private-party cases reached the premediation phase of the pilot, and 10 were eventually mediated. Of the remaining three, two settled after the premediation session but prior to mediation. In the third, the parties decided that more study was needed prior to mediation.

Research Design The focus of this research is to determine the effectiveness of mediation for resolving environmental enforcement disputes. Specifically we examine whether or not the case settled, how long it took to settle, and the quality of the settlement. In addition we are interested in the views of the mediation participants regarding the mediation process, the mediator, and the CRC. An additional component of our research involved an examination of the differences between mediated cases that were resolved and those mediated cases 5 During 1989-1990, three DER cases were referred to circuit court mediation and all settled quickly and at minimal cost. 6 0 G C was responsible for identifying potential cases, soliciting participation by district DER offices, and initially contacting the parties to inquire if they were interested in participating in the program. If the CRC agreed with the appropriateness of the case, then a premediation session was scheduled at which CRC personnel described mediation principles to the parties and solicited agreement to schedule the mediation and contract for a mediator. 7 Mediators were selected for the panel based on their prior mediation experience, familiarity with Florida environmental issues, and location within the state. The panel mediators agreed to work at a fixed scale of $500 per day plus expenses. CRC held an orientation session for the panel prior to the initiation of the pilot program to explain the pilot program and the procedures to be followed.

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that did not settle. We suspected that those cases resolved using mediation would have higher evaluations of the mediator and the mediation process than those that were unsuccessful using mediation, Several methods were used to evaluate the two mediation programs. For all cases, a survey was administered to those participating in the mediation session(s). Second, case files were reviewed for all cases with particular attention paid to the final written agreement. Third, for those cases in the D E P pilot program, mediation sessions were observed and documented.

Survey Methodology A survey instrument administered to all pilot program participants examined six general areas o f interest: (1) background on the parties and the dispute; (2) mediation process and its effectiveness; (3) settlement evaluation and satisfaction; (4) strengths and weaknesses of the mediator; (5) strengths and weaknesses of the CRC; and (6) demographics of the mediation participants. 8 Because the pilot program covered a 2-year period, the survey was administered in two parts. 9 The overall response rate for both mailings was 71°70. There was only a slight difference in the response rates between cases that settled and those that did not. Settled cases had a response rate o f 76°70 compared to a 67°70 rate for unresolved cases. The mean respondent to the survey was 43 years old; 77070 were male; 78°70 had a graduate degree, and 55070 were attorneys. O f the respondents 43070 worked for state government (primarily DEP), 22070 for local or regional governmental agencies, 28°70 for professional services firms, 6°70 for other forprofit firms, and 2070 for non-profit organizations. ~°

Evaluation Criteria The evaluation criteria focused on four areas. The first of these was the mediation process. We asked mediation participants to evaluate how mediation impacted: the definition of the issues; clarification of the parties' viewpoints, interests, and positions; identification of options and alternative solutions; communication a m o n g the parties; ability to reach general understandings; and the ability to reach specific agreements. The second evaluation area involved the settlement. First of all we deter8 The Dillman (1978) technique was used for the mailed survey instrument. This technique involved an initial mailing that was followed a week later by a postcard reminder. App-oximately 1 month after the initial mailing, a second letter was sent along with another questionnaire to the nonrespondents. After another month had passed, a letter and questionnaire were sent by certified mail to the nonrespondents. In several instances, follow-up phone calls were made to nonrespondents. 9 The first part was administered between April and June 1991 to 27 participants of the initial five cases. The response rate for this portion of the survey was 74%. The second part of the survey was administered 1 year later between April and June 1992. An identical questionnaire was mailed to 41 DER pilot program and 25 circuit court participants. The response rate for this portion was 68%. l0 Responses from all the surveys were coded and analyzed using SAS software (SAS Institute Inc. 1985).

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mined whether or not the case had been settled. I f an agreement had been reached, the mediation participants were asked to judge the quality o f the settlement using the following criteria: was it practical and workable?; was it just and fair to participating parties as well as to nonparticipating parties?; was it stable and durable?; was it wise--did it represent the greatest good for the greatest number?; and was it efficient in terms of time and money? The third evaluation area involved the mediator. Using the basic steps of the mediation process, mediation participants were asked to evaluate the mediator's effectiveness in facilitating group discussion, as well as assisting parties in: exploring their interests, generating options, and reaching and ratifying agreements. Finally, the fourth evaluation area involved the CRC. Participants were asked to evaluate the CRC using the following criteria: explaining what mediation is and how it works, setting up the premediation meeting, evaluating the potential for using mediation, arranging for the selection of a mediator, assisting in contractual issues related to the mediation, and arranging for a time and place for the mediation. The most important limitation of the research effort was the number of cases in the pilot. A larger number o f cases would have increased our ability to draw conclusions from the statistical tests that were performed. Nevertheless, the number of cases included in this analysis is in sharp contrast to the descriptive case studies that dominate the current literature in environmental mediation.

Findings Between the two programs, 19 mediated cases were examined. O f these cases, 14 (74°70) were settled and five (26070) were not. H The cases were fairly evenly distributed throughout the six D E P districts located in Pensacola, Jacksonville, Orlando, Tampa, Ft. Myers, and West Palm Beach. The substantive area of these disputes was varied with cases in six of DEP's 10 program areas. There were five dredge and fill cases, four air pollution disputes, three domestic waste cases, three hazardous waste cases, two groundwater contamination cases, and two solid waste disputes. One of the first questions dealt with the nature of the disagreement. The most prevalent reason for the dispute, indicated by 83.1070 of the respondents, involved the a m o u n t of fines and penalties. Clustered in a second group were disagreements over the corrective actions needed (64.6070), requirements of law (58.5070), and interpretation of data (52.3070). The least important reasons given for the dispute related to: who should take the corrective action (30.8070), when corrective action should be taken (35.4 070), and who should pay the fines and penalties (36.907o). These three issues are more c o m m o n in hazardous waste

11 I f the excluded case is included (see footnote 4), the settlement rate would be 700/0 versus 30070 that did not settle.

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enforcement actions where identification of the responsible parties is often in doubt.

Mediation Process We were surprised that only 16.4°70 of the respondents had tried mediation before and liked it. 12The top reason for using mediation, given by 55.7070 of the respondents, was that they thought it would be less costly than the alternatives. A second cluster of reasons included 41.0070 who saw no harm in trying and 37.7070 who thought mediation would be quicker than the alternatives. In assessing the effectiveness of mediation, we separated the process into six steps, based generally on Moore (1987, pp. 32-33) and Susskind, McMahon, and Rolley (1987, pp. 133-134), and asked the participants to evaluate how mediation affected each one. These steps included: (1) defining the issues; (2) clarifying viewpoints, interests, and positions; (3) identifying options and alternative solutions; (4) reaching general understandings and agreements; (5) reaching specific agreements; and (6) improving communication among the parties. The mediation step found to be most affected was (4) reaching general understandings and agreements, where 80.4070 of the respondents felt that mediation either strongly or moderately improved this step. There was only a moderate amount of variation in this question given that the steps least affected were: (5) reaching specific agreements where 70.5070 answered strongly or moderately improved and (1) defining the issues with a comparable 70.0070. However these results do reflect a weakness observed in the early stages of DEP's pilot program whereby difficulties were encountered in moving from general agreements to specific written agreements. Participants were also asked about their satisfaction with the mediation process. One question involved their personal satisfaction and the other their organization's satisfaction. Our exploratory research (Stiftel and Sipe 1992) indicated that in situations where several individuals would be representing a single party, a divergence of opinion would exist between individual satisfaction and the party's satisfaction. However, we did not find much variation in the responses with 65.6°70 of the respondents indicating that they were personally "very" or "moderately" satisfied with the process compared with 63.9070 who indicated that their organization was "very" or "moderately" satisfied.

Settlement Evaluation One way of judging how well mediation works is to examine the quality of the settlement. Advocates of the mediation process point to the fact that mediation should result in quality settlements because the disputants craft the agree-

12 Because of the wording of this question, it is not clear how many had tried mediation previously regardless of whether or not they liked it.

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ment themselves rather than having a judge or hearing officer hand down a decision (Susskind and Weinstein 1980, pp. 320-321; Amy 1987, p. 35). As indicated earlier, one problem noted in the early stages of DEP's pilot program was that the parties had a difficult and lengthy time translating the verbal mediated agreement into a written, signed agreement. Part of this problem was created by the fact that the mediators were paid only to preside over the mediation s e s s i o n - t h e y were not paid to follow-up and see that the verbal agreement was translated into a signed settlement. This problem was partially resolved later in the program by having mediators instruct the parties to draft written agreements prior to concluding the mediation session. Due to the length of time required for some of the cases to obtain signed agreements, a number of participants could not respond to the "quality of settlement" questions because the nature of the settlement was not known at the time the survey was administered. O f the 65 participants that responded, only 33-40 responded to the settlement questions. Twenty-three of the missing values are attributable to the five cases that did not settle; however, that leaves two to nine attributable to other cases that eventually did settle. In particular, two cases took more than a year to reach agreement after the mediation sessions. The criteria used to evaluate the settlement are Susskind and Cruikshank's (1987, pp. 21-31). They include: (1) how practical and workable is it; (2) how just and fair to mediation process participants; (3) how just and fair to those not participating in the mediation process; (4) how stable and durable; (5) how wise; (6) how efficient in terms of costs when compared to other dispute resolution techniques; and (7) how efficient in terms of time when compared with other techniques? The results indicate that the respondents were satisfied with the settlement quality. The criteria receiving the highest responses were (6) efficiency in terms of cost with 94.9°70 responding in the "very" and "moderate" categories, (7) efficiency in terms of time also at 89.8070, and (1) practical and workable at 87.2070. The criterion receiving the lowest rating was (3) fairness to those not involved in the mediation process at 66.7°70 percent. When participants were asked to provide an overall assessment of the settlement quality, 80.0070 indicated that the settlement had achieved some or all of their party's goals. Only 7.5 °70 indicated that the settlement met few or none of their party's goals. The remaining 12.5070 were unsure or did not know. Another indicator of the settlement quality as well as the efficiency of the mediation process generally is how much money would have been spent in staff, legal, and consultant costs if the case had gone to court. Unfortunately 37 of the 65 respondents did not answer this question. O f the 28 that did answer, the median estimated savings was $75,000 per party. With at least two parties per case this amounts to a median estimated savings of $150,000 per case. The savings for the D E P pilot program were significantly higher than

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those for the circuit court program. Median estimated savings were $100,000 per party or approximately $200,000 for a two-party dispute.

Mediator Evaluation Obviously, the mediator can play a key role in the mediation process (Mernitz 1980, p. 42; Moore 1987, p. 42; Susskind and Cruikshank 1987, p. 162). Participants were asked to assess the mediator on the tasks that a mediator generally performs including: (1) facilitating group discussion and interaction; (2) assisting parties in stating their interests; (3) helping the parties in generating options; (4) helping to establish rules for reaching decisions; and (5) assisting the parties in ratifying agreements. Of the five criteria, the mediator was rated moderately or very helpful by at least 84070 of the respondents for: (1) facilitating group discussion; (2) assisting parties in stating interests; and (4) helping parties establish rules for reaching decisions. The category receiving the lowest rating was (5) assisting the parties in ratifying agreements. Only 56.207o of the respondents felt that the mediator was very or moderately helpful in this area. As noted previously, the task of translating the verbal agreement into a written settlement was a problem encountered by many of the early cases. CRC attempted to resolve this problem in later cases by having the parties draft a written agreement prior to closure of the mediation. The overall evaluation of the mediator resulted in 89.9070 of the respondents indicating that the mediator was very or moderately helpful.

Conflict Resolution Consortium Evaluation State supported institutional providers of mediation are widely believed to be critical to the success of environmental mediation programs (Susskind 1987, p. 13). In the DEP pilot program, CRC was such an institutional provider. CRC was involved in the day-to-day management of the program. We selected six of the most important tasks that the CRC performed for evaluation criteria. These included: (1) explaining what mediation is and how it works; (2) arranging for the selection of a mediator; (3) setting up the premediation meeting; (4) helping the parties evaluate the potential for using mediation; (5) assisting in contractual issues related to the mediation; and (6) arranging for a time and place for the mediation. For four of the six tasks: (1) explaining what mediation is; (2) arranging for mediation selection; (3) arranging the premediation meeting; and (6) arranging the mediation, the CRC received ratings of moderately or very helpful by at least 85°70 of the respondents. The two tasks that received the lowest ratings were (5) assisting in contractual issues and (4) helping to evaluate the potential for using mediation, which received ratings of moderately or very helpful by 62.5070 and 71.4070 of the respondents, respectively.

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A summary of how the respondents evaluated the mediation process, the settlement, the mediation, and CRC is provided in Table 1. In all instances the respondents provided high evaluations to all aspects of the mediation experience. For the mediation process, 65.607o provided high or moderately high evaluations, 80.0070 provided high or moderately high evaluations to the settlement, 89.9o70 provided similar evaluations to the mediator, and 91.3°70 provided high or moderately high evaluations to the CRC.

Settlement Status One research question that we were interested in pursuing was how the settlement status of the case affected the evaluation of the mediation process and the mediator. A related issue was whether or not the cases that settled had different characteristics from those cases that did not. The total number of respondents was 65 of which 55 (84.6070) were involved in cases that settled and 10 (15.4070) from cases that did not. On the question of what issues were in dispute, we found some interesting differences between those cases that settled and those that did not. As Table 2 shows, there are statistically significant ~3 differences for three of the nine issues: (1) extent of agency jurisdiction; (3) interpretation of the data; and (8) amount o f fines and penalties. The respondents from unsettled cases felt that the extent o f agency jurisdiction ranked as the top reason for the dispute. A comparison shows that 66.707o of respondents from unsettled cases thought this was an issue compared to only 32.0070 from settled case respondents. The next significant issue, interpretation of data, finds 58.5°70 of the settled case respondents indicating that this was an issue in the dispute compared to only 25.0070 of the unsettled case respondents. The last significant issue is the amount of fines and penalties-88.7070 of the settled cases respondents found this to be an issue compared to only 58.3070 o f the unsettled case respondents. There were significant differences with respect to the evaluation of the mediation process by the participants. Respondents from cases that settled evaluated the mediation process higher than did respondents from unsettled cases respondents for all six evaluation criteria as shown in Table 3. For five criteria these differences were statistically significant at the .05 level. They included: (1) defining the issues; (2) clarifying viewpoints, interests, and positions; (3) reaching general agreements; (4) reaching specific agreements; and (5) improving communication among the parties. The evaluation o f the mediator by the two groups provided some interesting results. Table 4 shows that there were significant differences for two of the six evaluation criteria. They include: (1.D) helping parties to establish rules

13 Due to the small n u m b e r of cases, the chi-square test was inappropriate for testing statistical independence. Instead we chose to use Fisher's exact test, which is recommended for analyzing small data sets (Siegel 1956, p. 96).

61 40 59 46

Settlement

Mediator

Conflict resolution consortium

Total Responses

Mediation process

TABLE 1. Overall Evaluation

23 (37.7) 9 (22.5) 25 (42.4) 28 (60.9)

Frequency (07o of total)

Strong Positive Evaluation

17 (27.9) 23 (57.5) 28 (47.5) 14 (30.4)

Frequency (070 of total)

Moderately Positive Evaluation

12 (19.7) 5 (12.5) 5 (8.5) 3 (6.5)

Frequency (070 of total)

Unsure/Don't Know

(2.2)

I

(I .7)

1

5 (8.2) 3 (7.5)

Frequency (070 of total)

Moderately Negative Evaluation

(0.0)

(6.6) 0 (0.0) 0 (o.o) o

4

Frequency

Strong Negative Evaluation

~D

I. Who should pay fines and penalties

H. Amount of fines and penalties

G. When corrective action should be taken

F. Who should take corrective action

E. Corrective actions needed

D. Record of past activities

C. Interpretation of data

B. Requirements of law

In this enforcement action, parties disagreed about the following issues: A. Extent of agency jurisdiction (66.7) 8 (66.7) 3 (25.0) 4 (33.3) 5 (41.7) 2 (16.7) 3 (25.0) 7 (58.3) 2 (16.7)

8

"Yes" Responses (% of total)

"Yes" Responses (% of total)

17 (32.0) 30 (56.6) 31 (58.5) 25 (47.2) 37 (69.8) 18 (34.0) 20 (37.7) 47 (88.7) 22 (41.5)

Unsettled Cases

Settled Cases

TABLE 2. Settled Case/Unsettled Case Comparison: Issues in Dispute

.098

.024

.316

.208

.068

.294

.037

.381

.030

Probability

Fisher's Exact Test

F. Improving communication among the parties?

E. Reaching specific agreements?

D. Reaching general agreements?

C. Identifying options?

B. Clarifying viewpoints, interests and positions?

How effective was mediation in: A. Defining the issues? 38 (76.0) 42 (85.7) 40 (78.4) 43 (86.0) 41 (80.4) 44 (86.3)

4 (40.0) 5 (50.0) 5 (50.0) 5 (50.0) 2 (20.0) 5 (50.0)

Frequency (% of total)

Frequency (% of total) 12 (24.0) 7 (14.3) 11 (21.6) 7 (14.0) 10 (19.6) 7 (13.7)

Frequency (% of total)

Settled

Unsettled

Settled

6 (60.0) 5 (50.0) 5 (50.0) 5 (50.0) 8 (80.0) 5 (50.0)

Frequency (% of total)

Unsettled

Strongly or moderately reduced or no effect

Strongly or moderately improved

TABLE 3. Settled Case/Unsettled Case Comparison: Mediation Process

.019

< .001

.020

.060

.031

.033

P

Fisher's Exact Test

Test of independence

2. Overall evaluation of mediator?

D. Helping parties to establish rules for reaching decisions? E. Assisting the parties in ratifying agreement?

C. Helping parties in generating options?

B. Assisting parties in stating interests?

1. How helpful was mediation in: A. Facilitating group discussion and interaction? 8 (80.0) 8 (80.0) 6 (60.0) 6 (60.0) 2 (20.0) 7 (70.0)

Frequency (0/o of total)

Frequency (% of total) 47 (95.9) 45 (91.8) 39 (79.6) 44 (89.8) 30 (63.8) 46 (93.9)

Unsettled

Settled

Very or moderately helpful Settled

2 (4.1) 4 (4.1) 10 (20.4) 5 (10.2) 17 (36.2) 3 (6.1)

2 (20.0) 2 (20.0) 4 (40.0) 4 (40.0) 8 (80.0) 3 (30.0)

Frequency (% of total)

Unsettled

Very or moderately unhelpful or Unsure

Frequency (% of total)

TABLE 4. Settled Case/Unsettled Case Comparison: Mediation Evaluation

.055

.014

.036

.176

.266

.129

P

Fisher's Exact Test

Test of independence

b9

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for reaching decisions; and (1.E) assisting the parties in ratifying agreements. The fact that the respondents from unsettled cases would rate the mediator significantly lower for criterion (1.E) assisting in ratifying agreements when no agreement was reached is not surprising. However, the rating for (1.D) is particularly interesting in light of the fact that there were no significant differences for (1.A) facilitating group discussion. (1.B) assisting in stating interests and (1.C) helping to generate interests. We compared mediator evaluations with mediation process evaluations. As discussed earlier, there were significantly lower evaluations for the mediation process on five of the six criteria by the unsettled case respondents. However those same respondents rated the mediator significantly lower on only two of the six criteria. It is unclear why the mediation process received significantly lower evaluations by unsettled case respondents when at the same time they did not give significantly lower evaluations to the mediator. One possible explanation is that respondents believed that factors other than the mediator's assistance were responsible for the mediation resulting in an impasse. These results indicate that cases that settle have different characteristics than those that do not. The main difference is that cases that involve questions of jurisdiction in the enforcement action are not likely to settle using mediation. Furthermore, it appears as though this is an overriding concern with issues o f needed corrective actions and the amount of fines and penalties being o f lesser importance. Conclusions

Characteristics o f the Dispute and Mediation An analysis of the issues in dispute found significant differences between cases that settled and those that did not. The most interesting finding was that those cases where parties question the agency's jurisdiction settle at a rate less than expected. In fact, our analysis shows that among cases that did not settle as a result of mediation, the "extent of agency jurisdiction" was an overriding concern and was more important than interpretation of the data, the type o f corrective action needed, and even the amount of fines and penalties. These findings support the claim that mediation should not be used in disputes where precedents may be set (Kressel and Pruitt 1989). Precedents have the potential for being set when disputes involving the agency's jurisdiction are being mediated. These findings also point to the benefits of conducting a conflict assessment as part o f the mediation process (Carpenter and Kennedy 1988, pp. 71-91). A conflict assessment can help to determine the basis for the dispute in advance of the actual mediation and may call into question whether mediation is the best alternative for resolving the dispute.

Settlement Status and Evaluation An analysis o f the survey results found that the settlement status (settled or unsettled) o f the case affected the evaluation of the mediation process as well

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as the mediator. Settled case respondents evaluated the mediation process significantly higher than unsettled case respondents for six of eight criteria. With respect to the mediator, settled case respondents provided higher evaluations than did unsettled case respondents on three of six mediator criteria.

Success o f E n v i r o n m e n t a l Mediation The strongest conclusion that can be drawn from the research is the overall success of mediation for resolving environmental enforcement disputes. First and foremost, mediation resulted in high settlement r a t e s - 14 of the 19 cases reached agreement for a settlement rate of 73.7°70. Second, the mediation process was positively evaluated by the participants. Survey respondents indicated a high degree of satisfaction with: (1) the mediation process, (2) the final agreement, (3) the mediator, and (4) CRC (in the case of the D E P pilot program). Third, respondents indicated savings in using mediation to resolve their dispute when compared with litigation. Estimated median savings was $75,000 per party, and with at least two parties per dispute this amounts to an estimated median savings o f $150,000 per case. Given that DEP annually handles more than 1000 cases and like all state agencies is faced with budget constraints, these savings should allow D E P to process more enforcement cases. However it should be noted that high settlement rates do not automatically translate into high levels of compliance. The degree of compliance with mediated agreements has yet to be determined and was not part of this research effort. Prior to beginning this research effort, we questioned the claims made by advocates of the mediation process that it would result in quicker, cheaper, and more satisfactory settlements than litigation or administrative hearings. This doubt was based on the fact that most environmental mediation literature consisted of case studies written by professional mediators. Almost no cross-sectional empirical research had been done to substantiate these claims. These claims were based, in part, on the successes of mediation in other settings. However those studying mediation across contexts caution against generalizing about the applicability of mediation based upon empirical studies in only one field. Wall and Lynn (1993, p. 181) note that investigators have begun comparing the research results of mediation in varied settings and have found some similar findings but also some that are contrary, which leads them to the conclusion that some results may be situation specific. Although the results presented here are based on a limited number of cases, they represent a significant step forward from the descriptive case studies that have historically dominated the study of environmental mediation. They also provide some of the first context-specific evidence that mediation works in resolving environmental enforcement disputes. References Alfini, James J. 1991. Trashing, bashing, and hashing it out: Is this the end of "good mediation?" Florida State University Law Review 19:47-75.

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