The mediation for the heritage and the environment - Thierry Garby
Decisions concerning their preservation and maintenance must therefore be the subject of the broadest possible consensus. Representing the common interest, the public authorities are frequently associated with these decisions when they do not take them themselves. Some of these decisions are challenged by citizens, often grouped in associations, usually through the courts, when petitions, demonstrations and other means of pressure have not led to solutions that satisfy the challengers.
In most cases, the courts will make yes or no decisions. It will either validate or invalidate the action taken, thus generating violent frustration among the losers. These solutions do not end the difficulty: they transfer the frustration from one party to the other. As a result, it is not uncommon for the contested project to rise from the ashes and cause new difficulties. The result is a ruinous spiral of litigation from which it is difficult to escape.
Can mediation remedy this difficulty and generate consensual solutions to these problems of the common good? Experience proves that it is the ideal instrument, but certain conditions must be met.
This has been demonstrated by mediations around projects financed by the World Bank Group. These include a dam in the Philippines, a mine in Peru and a refinery in Nigeria. In all three cases, solutions were found to both minimize the negative impacts and to create beneficial spin-offs for the surrounding populations . Another experiment was conducted in Australia. It involved organizing the distribution of water along a valley between the various consumers: farmers, industrialists and the rural and urban population. Lessons can be learned from this.
These mediations differ from interpersonal or inter-company mediations in that the persons concerned (stakeholders) are not clearly identified: different types of farmers exist who do not necessarily have the same interests and one cannot bring every farmer to the table, an industrialist is also a consumer, etc. It is therefore necessary to first identify the categories of interested parties and to organize their representation While mediation usually results from the will of the parties, possibly at the suggestion of the judge, here the initiative of mediation must come from a third person (possibly a public authority). This person must propose a mediator who will have to set up the mediation by identifying the parties involved and helping them to organize their representation.
The mediator must therefore be accepted and respected by the parties. The practice of appointing officials who are not familiar with conflict resolution methods is always counterproductive.
Good representation of interest groups will end the frustration of those who do not feel respected or heard.
In a few meetings, the mediator must create a relationship of trust so that everyone feels that they have a real influence on the project. The parties must also understand that the outcome will not be black and white (continuation or termination of the project), and that the interests of all parties, whether they are supporters or opponents of the project, must be satisfied. The mediator will have to stimulate the creativity of all. The large organizations, especially the administration, will have to stop believing that they know better than others what is good for them. They will have to learn to listen in order to understand.
In a less exotic setting, closer to home, the problem is no different.
Let's imagine a project to build a housing complex near a listed monument belonging to a family and a sensitive wetland. One can imagine protests from the family, associations for the defense of heritage, the environment, the protection of affected animal and plant species and local residents.
All the stakeholders can envisage mediation, but few of them will be able to make it happen and especially to finance the initial work of setting it up. The public authorities (State, prefecture, town hall) or the promoter will therefore have to intervene. The mediator must be a specialist in conflict resolution and not a technician or expert without experience in this field. Experts may be consulted later on relevant issues.
The mediator will need to bring together those who have already been heard and representatives of the developer and the administration to understand their views of the situation. These meetings will be informal in order to bring out as much information as possible. The mediator will not yet be concerned with the agenda or the representativeness of the participants. He or she will be concerned with obtaining information and making sure that everyone expresses themselves fully. He or she may also find that some of the people affected are not at the table. He or she will need to bring them in to prevent the solutions from creating new frustrations and challenges.
At the end of these meetings, the themes to be dealt with and the interests at stake will have emerged. The mediator will have his analysis accepted, which will structure the organization of the mediation. He will be able to modify his views according to the participants' remarks. The mediator will take the initiative, but above all he will be a catalyst and his conclusions will have to be seen as coming from the participants.
The mediator must then ensure that each party is represented. This means that each party must have a representative, but also that the representative knows the problem and understands its origins and consequences. The representatives must be accepted and trusted by their group. The ombudsman will also ensure that the representatives remain in contact with their constituents to report back to them periodically and to perceive any changes in their views. It will be important to achieve as much direct democracy as possible.
It will sometimes be appropriate to create different categories of participants: for example, those of people directly affected and those of general interest organizations (associations for the protection of animal and plant species or for the defense of heritage). This second category, which could be admissible in court in the same way as those directly affected, will play an expert role in the study of both the dangers and the possible solutions. This category will not necessarily have to approve the solutions, but the mediator will make sure that the information it holds will be fully delivered and that it will be taken into account by all.
At this stage and at all times, the mediator should consider whether the parties need the intervention of experts. These experts may be neutral and independent to enlighten all parties or to support a party lacking the necessary technical knowledge.
Then the mediation can actually start. It will not be from nothing since the interests and the agreement on the disagreement will have already appeared. The mediator will recall what has already been reached, confirm the agreement on the statement and may amend it.
This mediation will therefore be oriented towards possible solutions. It will be an exercise in creativity driven by the intention to have one's interests respected and by respect for the interests of others. The solution will never be yes or no, as in court. Concessions will have to be made, but everyone will have to think outside the box and look elsewhere, in space or time, for the compensation of the prejudices that have not been avoided.
This process will take time. It will have to be financed, which will impact the project budget. However, its duration of a few months will be derisory compared to that of the litigation. Above all, its outcome will be acceptable to all (even if it will not be ideal for any) whereas the litigation outcome will be frustrating for some and therefore conflictogenic. Finally, the solutions will solve the problems but will also prevent the appearance of new conflicts by integrating the project in its environment.
Mediation is a very difficult and costly exercise in matters of heritage and environment but it represents a derisory effort compared to the nuisance of the solutions offered by justice. Compulsion must be the last resort when the common good is at stake. Agreement and consensus must always be preferred.
 Films on these topics can be found at: https: //vimeo.com/117238123 and https://www.shiftproject.org/resources/publications/corporate-community-dialogue-documentary-series/.
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