The Silent Party: Mediation Involving the Environment

This quarter’s theme is growth, and there is nothing more fitting for it than the environment. Springtime is the literal embodiment of life ‘springing’ from the ground, and green replacing the browns of winter. Nothing about this process is silent. We hear the wind and thunder of rainstorms, the birds returning from the South, the rivers and streams flowing once more, and the insects emerging from the soil. 

However, in our justice system, the environment cannot use its language to communicate; it cannot even represent itself. It is reduced to silence, only heard through representatives. This creates an ongoing litigation battle over who can interpret the earth best, who gets to define ‘resources’ and ‘ownership,’ and who gets to speak on behalf of the land? In litigation, a problem arises each time these questions are raised: there is no ‘true’ answer, only motives. Despite all the deliberation between litigators, corporations, interest groups, and local citizens, there is one party that will bear the ultimate cost of any decision made without uttering a single word: the environment itself.

Even when decisions are made with the best intentions in mind, environmental litigation struggles with commitment to solutions and contingency plans (1). Nothing about the environment is static, so when situations change, such as water levels, soil pH, nutrient density, and even severe weather, people tend to move away from the original solution, and constant revisions are necessary to keep up with shifting pressures.

Looking for alternative solutions to traditional environmental litigation has long been attractive for these issues, including communities seeking to include more people in the legal process (2). Mediation has been an avenue for these issues, offering a larger communal space for conversation and problem-solving that litigation cannot have the capacity or time for. Internationally, this medium for environmental law has been successful in various issues (3), but there have been mixed emotions domestically and abroad that are important to consider and explore (4). The most important of these issues is “failing to come to an agreement” when an answer is most desired (5). 

Although I will go into more detail in a later article about what “failure” means in general mediation, environmental mediation follows a similar logic: the mediation process can produce more success than the actual agreement (6). Actually, environmental mediations that ended in an agreement abroad, using the Delphi Method, hold the process and conversations above the end result (7). When communities and parties enter mediation, regardless of the subject, there is always a strong connection between a successful conversation and a successful outcome: a failure in either creates a failure for the other (8). For environmental mediation, this could not be further from the truth. The process and conversations create space for the environment to be finally truly represented (9). The end result is for us, the humans; the process is for the environment. 

Ultimately, environmental mediation challenges the idea that justice must always come from definitive rulings. Mediation openly acknowledges that environmental concerns are constantly changing, and the process seeks to mitigate these uncertainties. Prioritizing communication and collaboration can transform traditionally rigid outcomes into something more meaningful for all parties involved, including those who cannot speak for themselves. This process is imperfect but also adaptive and evolving. Methods like the Delphi Method are not the perfect solution, but they have seen success because the mediation process demands slowing down and building a plan from the ground up. Perhaps the greatest successes of environmental mediation are not the mediation itself or an agreement; rather, it teaches communities how to listen to the environment’s calls rather than speak for it.