Posted on: Sunday, September 2, 2001
Mediation lends a hand to environmental disputes
By Jan TenBruggencate
Advertiser Environment Writer
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| Mediation helped in the crafting of an interim resolution for opposing parties on the Waiahole water issue. The allocation of water between Windward and Central O'ahu remains in dispute.
Advertiser Library Photo • Jan. 5, 1997 |
Environmental disputes in Hawai'i frequently turn into lengthy, costly court actions that can end with rulings unsatisfactory to all sides.
Increasingly, groups facing such conflicts are turning to new ways to resolve their differences. They are sitting down together, sometimes with an expert to guide them, and reaching conclusions that can represent a middle ground or, occasionally, an outcome nobody thought of at the beginning.
"I like to characterize these as stakeholder processes," said veteran Honolulu mediator Peter Adler, president of The Accord Group, an association of mediators and facilitators.
Denise Antolini, former Sierra Club Legal Defense Fund attorney and a University of Hawai'i law professor, said a successful example was the intensely complex debate over use of Waiahole Valley's water. In that case, Adler negotiated an interim agreement on the handling of water being dumped by the Waiahole Irrigation Co. that stood for a long time.
"Having seen it myself, it has such potential," said Antolini, who used the courtroom to fight battles over issues like endangered species, water rights and Hawaiian rights. "Litigation is so costly. It should be a last resort."
Antolini is chairwoman of the Natural Resources Section of the Hawai'i State Bar Association, and late next month, she will team with the bar's Alternative Dispute Resolution Section chief, attorney Charles Crumpton, to bring the process before Hawai'i lawyers.
The difference between going to court and sitting down to work things out is fundamental, said Cherie Shanteau, the senior mediator and program manager of the federal government's U.S. Institute for Environmental Conflict Resolution. She will serve as keynote speaker for the Sept. 27 state bar convention sessions titled "Environmental Alternative Dispute Resolution: Promise or Peril?"
"Litigation looks at what happened to get you here, while (alternative dispute resolution) looks at what you can do in the future," Shanteau said. Her organization held "visioning" meetings statewide last year to prepare a report for President Clinton as he considered options for the protection of the Northwestern Hawaiian Islands.
Sessions between the stakeholders — those with a direct interest — represent a way "to clean up issues and to streamline the process, to allow parties to create their own results," she said.
There are few concrete rules on how to go about trying to resolve issues out of court.
In litigation over design, construction and equipment flaws at Aloha Stadium, for example, there were 25 parties at the start. Through discussions, 24 parties settled out of court, Adler said, and only one went to court.
Shanteau said parties can agree to handle some issues through an alternative dispute resolution process while taking others through the courts, and courts can put legal processes on hold while they order parties to try to resolve issues out of court.
"You have all these tools," she said. "You sort of have to unpack a conflict into all of its parts, and you can have creative results that wouldn't occur if you ran it through a court. Judges don't do that."
Lawyers and others who participate in the bar convention's sessions on environmental dispute resolution will hear from environmental lawyer Paul Achitoff; Hawaiian issues lawyer Malia Akutagawa; Alexander & Baldwin executive Meredith Ching; former state Board of Land and Natural Resources chief Timothy Johns; retired Maui Judge E. John McConnell; lawyer and Hawaiian dispute resolution expert Beadie Dawson; arbitrator and property rights lawyer Michael Gibson; and land use and water rights lawyer William Tam.
Reach Jan TenBruggencate at jant@honoluluadvertiser.com or (808)245-3074.
