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ECR Roster Glossary

General Terms

Apprentice or Junior Professional

An assistant to the principal professional in a case.

Case

Involves an actual or potential dispute or lack of agreement on one or more issues in controversy. A case may also be described as a process of building agreement, recommendations or advice on actual or potential issues in controversy as well as facilitating collaborative processes among multiple parties on actual or potential issues in controversy. Systems design and evaluation work relating to environmental or public policy disputes would also be included. For purposes of entry, a case must have engaged the environmental dispute resolution and consensus building professional for more than 20 case hours and have occurred within the last 10 years.

1. environmental case - cases involving pollution (prevention, cleanup, or consequences), land use, natural resource use or distribution, environmental permitting, facility or infrastructure siting disputes, environmental justice, and negotiated rulemaking, enforcement, or compliance relating to environmental cases.
2. public policy case - cases involving the setting of governmental policy at the national, regional, state or local level, such as environmental or natural resource policy, health or safety policy, or education policy.
3. complex environmental or public policy case - an environmental or public policy case involving at least three of the following characteristics: at least 100 case hours; multiple issues at stake; at least four parties representing distinct interests at the table; at least one party is a government entity.

Case Hours

Actual contact time with the parties as individuals or a group, plus time spent in dispute or conflict assessment, dispute resolution process design, conduct of all phases of the process, or evaluating or reporting on the process. This does not include hours spent prior to professional engagement in the project.

Conflict Assessment

Conflict assessment (also known as "convening") helps to identify the issues in controversy in a given situation, the affected interests, and the appropriate form(s) of handling the conflict. The assessment process typically involves conferring with potentially interested persons regarding a situation involving conflict in order to: assess the causes of the conflict; identify the entities and individuals who would be substantively affected by the conflict's outcome; assess those persons' interests and identify a preliminary set of issues that they believe relevant; evaluate the feasibility of using a consensus-building or other collaborative process to address these issues; educate interested persons on consensus and collaborative processes so as to help them think through whether they would wish to participate; and design the structure and membership of a negotiating committee or other collaborative process (if any) to address the conflict.

Conflict assessment has proven valuable as a first step in consensus-building processes like negotiated rulemaking and in finding constructive approaches to resolving environmental conflicts.

Consensus Building

Consensus building describes a number of collaborative decision making techniques in which a facilitator or mediator is used to assist diverse or competing interest groups to reach agreement on policy matters, environmental conflicts, or other issues in controversy affecting a large number of people. Consensus building processes are typically used to foster dialogue, clarify areas of agreement and disagreement, improve the information on which a decision may be based, and resolve controversial issues in ways that all interests find acceptable. Consensus building typically involves structured (yet relatively informal), face-to-face interaction among representatives of stakeholder groups with a goal of gaining early participation from affected interests with differing viewpoints, producing sound policies with a wide range of support, and reducing the likelihood of subsequent disagreements or legal challenges.

Dispute Systems Design

Dispute systems design is a process for assisting an organization to develop a structure for handling of a series of similar recurring or anticipated disputes (e.g., environmental enforcement cases or EEO complaints within a federal agency) more effectively. A dispute systems designer typically proceeds by interviewing representatives of interested or affected groups (including people in the agency) about their perceptions and interests; analyzing the organization's existing system for handling these conflicts; designing and implementing conflict management or dispute resolution procedures that encourage early, informal resolution of conflicts; and perhaps evaluating the impact of these new dispute resolution procedures to assure their effectiveness.

Environmental Dispute Resolution and
Consensus Building Professional

Any third party neutral engaged to assist all parties in the prevention, management or resolution of disputes or controversy. In order to gain entry to this roster, the environmental dispute resolution and consensus building professional shall have expertise in one or more of the following processes: facilitation, mediation, consensus building, conflict assessment, process design, dispute systems design, neutral evaluation/fact finding, or settlement judge (see process definitions in this Glossary.)

Facilitation

Facilitation is a collaborative process in which a neutral seeks to assist a group of individuals or other parties to discuss constructively a number of complex, potentially controversial issues. The facilitator typically works with participants before and during these discussions to assure that appropriate persons are at the table, help the parties set ground rules and agendas, enforce both, assist parties to communicate effectively, and help the participants keep on track in working toward their goals. While facilitation bears many similarities to mediation, the neutral in a facilitation process (the "facilitator") usually plays a less active role than a mediator and, unlike a mediator, often does not see "resolution" as a goal of his or her work. Facilitation may be used in any number of situations where parties of diverse interests or experience are in discussion, ranging from scientific seminars to management meetings to public forums.

Fact-finding

Fact-finding is a process in which a neutral receives information and arguments from the parties to a controversy (and may conduct additional research to investigate the issues in dispute), and then submits a report with findings of fact and perhaps recommendations based on those findings. Typically, the fact-finding process is informal and the neutral's recommendations are non-binding.

Interactive Process Training

Training in alternative dispute resolution processes and techniques, such as mediation, facilitation, and conflict management, which is interactive in nature, incorporating a substantial number of role plays, simulations, and group demonstrations.

Mediation

Mediation is simply facilitated negotiation in which a skilled, impartial third party seeks to enhance negotiations between parties to a conflict or their representatives by improving communication, identifying interests, and exploring possibilities for a mutually agreeable resolution. The disputants remain responsible for negotiating a settlement, and the mediator lacks power to impose any solution; the mediator's role is to assist the process in ways acceptable to the parties. Typically this involves supervising the bargaining, helping the disputants to find areas of common ground and to understand their alternatives, offering possible solutions, and helping parties draft a final settlement agreement. While mediation typically occurs in the context of a specific dispute involving a limited number of parties, mediative procedures are also used to develop broad policies or regulatory mandates and may involve dozens of participants who represent a variety of interests. Mediation most often is a voluntary process, but in some jurisdictions may be mandated by court order or statute.

A variety of mediation styles have been identified; for instance, a mediator's style may be described as "evaluative" or "facilitative." Most "evaluative" mediators emphasize helping the parties understand the strength and weaknesses of their cases, and provide guidance as to the likely outcome in court and appropriate grounds for settling. "Facilitative" mediators tend to be less likely to provide direct advice, propose solutions, or predict outcomes; they usually seek to establish a framework that makes it safe for parties to communicate more effectively as to their interests, options, and realistic alternatives.

Negotiated Rulemaking

Mediation is simply facilitated negotiation in which a skilled, impartial third party seeks to enhance negotiations between parties to a conflict or their representatives by improving communication, identifying interests, and exploring possibilities for a mutually agreeable resolution. The disputants remain responsible for negotiating a settlement, and the mediator lacks power to impose any solution; the mediator's role is to assist the process in ways acceptable to the parties. Typically this involves supervising the bargaining, helping the disputants to find areas of common ground and to understand their alternatives, offering possible solutions, and helping parties draft a final settlement agreement. While mediation typically occurs in the context of a specific dispute involving a limited number of parties, mediative procedures are also used to develop broad policies or regulatory mandates and may involve dozens of participants who represent a variety of interests. Mediation most often is a voluntary process, but in some jurisdictions may be mandated by court order or statute.

A variety of mediation styles have been identified; for instance, a mediator's style may be described as "evaluative" or "facilitative." Most "evaluative" mediators emphasize helping the parties understand the strength and weaknesses of their cases, and provide guidance as to the likely outcome in court and appropriate grounds for settling. "Facilitative" mediators tend to be less likely to provide direct advice, propose solutions, or predict outcomes; they usually seek to establish a framework that makes it safe for parties to communicate more effectively as to their interests, options, and realistic alternatives.

Neutral Evaluation

In neutral evaluation (sometimes called "early neutral evaluation"), a neutral - often someone with specifically relevant legal, substantive, or technical expertise - hears informal presentations by all sides in a conflict and then offers the parties a non-binding oral or written evaluation of their cases' strengths and weaknesses. The neutral evaluator typically reviews the parties' factual and legal positions through briefs, oral presentations, or both; evaluates the likely reaction of a judge or jury if settlement is not reached; provides his or her view of the likely or appropriate range of outcomes; and sometimes assists the parties to either narrow areas of disagreement or identify relevant information that may enhance their chances of reaching settlement.

Principal Professional

An environmental dispute resolution and consensus building professional (see above) who has been engaged to serve as the lead in a case. A principal professional includes serving as a co-mediator or other such circumstance where duties and responsibilities are shared equally as peers.

Policy Dialogue

Often used to address complex environmental conflicts or public policy disputes constructively, policy dialogues are processes that bring together representatives of groups with divergent views or interests to tap the collective views of participants in the process. The goals include opening up discussion, improving communication and mutual understanding, exploring the issues in controversy to see if participants' different viewpoints can be distilled into general recommendations, and trying to reach agreement on a proposed policy standard or guidelines to be recommended by government.

Unlike processes that explicitly seek to obtain consensus (e.g., negotiated rulemaking, mediation), policy dialogues usually do not seek to achieve a full, specific agreement that would bind all participating interests. Rather, participants in a policy dialogue may seek to assess the potential for developing a full consensus resolution at some later time or may put forward general, non-binding recommendations or broad policy preferences for an agency (or other governmental entity) to consider in its subsequent decision making.

Process Design

In process design, a neutral assists an organization to develop (or recommends to it) a process for addressing a particular controversy or a series of disputes. Typically a process designer interviews representatives of interested or affected groups (including people in the agency) about their perceptions, their interests regarding the conflict in question, and their suggestions as to useful ways to handle it. The designer will then report to the agency with recommendations, or a plan, for handling the dispute(s).

Settlement Judge

In a settlement judge process, a judge - different from the presiding judge in the case - meets with the parties jointly and separately, acting as a mediator or neutral evaluator. If the settlement judge's efforts do not produce full agreement, the case returns to the presiding judge. A settlement judge often plays a more authoritative role than a private mediator, by sometimes providing parties with specific legal or substantive information and recommendations.

Superfund Allocation

In a Superfund allocation process, a neutral, third party allocator assists the parties to allocate - or may himself or herself assign or allocate shares of liability for site cleanup expenses -- to different potentially responsible parties in a Superfund case.