The legitimacy of environmental mediation: towards a model for New Zealand

Abstract

Mediation has been borrowed from its traditional sources and transposed into Western societies. In the process some of the characteristics of mediation have been modified. There is now a growing use of mediation in the West for a wide variety of disputes. There is also an increasing use of mediation for the resolution of policy issues. The advantages of using mediation, and the legitimacy of the process cannot be determined in isolation as they are dependent on the type of dispute which the process is attempting to resolve. For this reason the characteristics of the type of dispute must be identified. Environmental problems involve a high degree of public interest, are usually multi-dimensional and value-laden. There are generally a large number of interested parties, including in New Zealand, the indigenous people. The evidence in these cases is often difficult to obtain due to the wide ranging and unpredictable consequences of actions affecting the environment. Mediation has a greater capacity to respond to these traits of environmental problems than adjudication, even in the form of the Planning Tribunal. However, the use of mediation in the area is also problematic. The scheme of environmental mediation which is established by the Resource Management Act 1991 does not resolve many of these problems and in fact, creates additional difficulties. The problems with the practice of environmental mediation are so fundamental as to place in doubt the legitimacy of the practice. However, these are not fatal flaws and by modifying the process its legitimacy can be improved. Procedural legitimacy is not easily defined. A conventionalist definition bases the legitimacy of a dispute resolution process on whether it is the standard type of process in a society. The formalist approach is that a process is legitimate if it is embodied in the law. Neither of these definitions are satisfactory, so a third definition is suggested. This approach is that the legitimacy of a process depends on its intrinsic qualities and its ability to provide a fair, cost-efficient and reasonably successful process. Different models of legitimacy are examined according to these criteria. The court system bases its legitimacy on the universal application of law through a single process which encompasses a range of procedural rules to enhance its fairness. Mediation is claimed to provide an accessible and superior means of disputing. It achieves these aims through the direct participation of the parties who have control of the outcome and an inclusive, problem-solving approach to diverse values and norms. A Maori perspective of legitimacy suggests that this diversity of decision-making criteria is more legitimate as the universal approach of legalism is founded in Pakeha culture. Finally, modifications to the practice of environmental mediation and particularly the scheme established by the Resource Management Act 1991 are suggested. The modifications are based on parts of the various models of legitimacy, providing the practice of environmental mediation with an eclectic base for its legitimacy. The modifications suggested involve providing: considerations to be taken into account in all environmental mediations; a culturally sensitive process of environmental mediation; selection procedures to ensure the right participants are present; an accountability system for mediators; enforceable outcomes; and a eview of settlements by a final decision-maker.