Mediation & Mitigation: The Role of Conflict Resolution in Hazard Mitigation

By David O. Mendelsohn
Project Facilitator & Dispute Resolution Specialist
Massachusetts Executive Office of Environmental Affairs, Department of Environmental Management

Mediation and facilitation have been used over the past nine years by the Executive Office of Environmental Affairs as dispute resolution tools to help resolve public multi-party environmental conflicts. Mediation is a structured process in which the mediator assists the disputants of a conflict in reaching a negotiated settlement of their differences. Facilitation is a less formal, collaborative process, in which the facilitator functions as a neutral process expert, to help bring the parties to a consensus on a number of complex issues. Both processes are generally voluntary and confidential.

The following cases illustrate the complexity of the conflicts that these tools have successfully addressed. While these examples were centered around flooding and flood hazard mitigation, other issues must be part of the discussion, such as hydrology and hydraulics, biological resources and recreational uses within a watershed. The work of the mediator or facilitator is to bring these diverse interests to the table as well as help the parties hear and understand each other.

Many times, members of the regulatory community (enforcement agencies) are part of this discussion. The primary interest of a regulatory agency is often to stop offending behavior, followed closely by redressing grievances. Tertiary to those interests is punishment, which very often can be met as part of redressing grievances. Agencies’ regulatory authority can not always achieve desired outcomes to disputes, and mediation can bring better results. Often, these interests are best addressed through mediation, which allows for facilitated consensus building, resulting in a better project for all parties.

A mediation or facilitation table must be a safe place and a safe process, not a stage for blame setting, but a future-planning forum. To re-emphasize a most important point, these processes work best when they are both voluntary and confidential.

Aberjona-Mystic River Watershed

After the severe flooding of October 1996, the Town of Winchester and adjacent communities of Arlington, Woburn, and Medford attempted to determine what course of action they should take to prevent a reoccurrence of the disaster. After negotiations between them reached impasse, they requested assistance from the Commonwealth. The DEM/MEMA State Hazard Mitigation Team responded by convening and facilitating a series of meetings, and helping the communities establish the Aberjona-Mystic River Hazard Mitigation Working Group. The working group was established to collect information, set priorities and plan flood mitigation activities.

The Aberjona-Mystic River Hazard Mitigation Working Group began meeting in July 1998 with representatives from Arlington, Medford, Winchester and Woburn. The meetings were facilitated by EOEA/DEM with assistance from MEMA, and in coordination with the watershed team leader. The Working Group has grown to include the communities of Reading and Stoneham as well as representatives from the Watershed Initiative, the Mystic River Watershed Association and Tufts University. Kraft Atlantic Gelatin has become an active participant in the group due to frequent flooding at its site in Woburn and because many of its employees live in areas at risk to flooding.

The expanded working group has supported several flood mitigation actions, such as the development and implementation of an Emergency Action Plan to coordinate the release of water from Horn Pond Dam (Woburn), Central Falls (Winchester) and the Upper Mystic Lake Dam (MDC) in anticipation of large rain events. Additional work included the repair of gate valves at the Upper Mystic Lake Dam and the completion of limited hydrologic and hydraulic studies in three communities.

In October 1999, the Upper Mystic River Watershed, which is comprised of the nine communities of Arlington, Burlington, Lexington, Medford, Reading, Stoneham, Wilmington, Winchester and Woburn, was designated a Project Impact Community by the Federal Emergency Management Agency (FEMA). Of the over 150 designations nationwide, this is one of the first where a watershed area was selected as a Project Impact community. The acceptance of this nomination represents a major change in FEMA’s flood mitigation approach. Their recognition of a watershed basin view when addressing flooding issues, and a redefinition of community to include geographic boundaries such as a watershed, is a major shift away from a simple political jurisdiction definition.

To formalize their working relationship, five of the nine communities within the Upper Mystic River Watershed have chosen to initiate the process to form an Environmental Joint Powers Board through the use of Mass. Gen. L. c. 21A, §20 which enables the formation of Environmental Joint Powers Agreements (EJPA). These communities are the first in the Commonwealth to utilize the provisions of this recently enacted legislation. The stated purpose of the Upper Mystic River Watershed Board will be to work jointly and cooperatively to reduce or eliminate flooding and other hazards in the Upper Mystic River Watershed. While the Board’s formal decisions are made by a vote by the designated member from each participating municipality; the Working Group will continue to meet in an advisory capacity.

The communities working with the facilitation team were quickly able to improve communication, overcome animosity and obstacles, and institute-coordinated actions that protected their respective communities. The Emergency Action Plan was activated in six severe storm events between January 1999 and July 2000.

Muddy River Project Facilitation

In January of 1996, EOEA assigned an experienced mediator to be a Project Facilitator for the Muddy River Project. At that time (before the flooding of Oct. 96) the main issues were historic preservation, water quality, and park maintenance. There were a host of very active citizen interest groups some with a twenty-year history of Muddy River advocacy. There were 20 public agencies that had either operational or regulatory responsibility effecting the Muddy River. These include federal, state, City of Boston, and Town of Brookline officials. The interested parties also included more than a dozen institutional neighbors, several state legislators, and one former Governor. Below are several milestones achieved through collaborative problem solving and facilitated communication.

• In the beginning, several problems needed to be addressed. Many of the individuals had never spoken to each other; there was significant distrust among many of the parties; and there was disagreement on priorities as well as on what should be done. The first step was to convene a meeting of the public agencies and establish lines of communications.

Many subsequent meetings and several months later the first of several agreements was signed. This Memorandum of Agreement (signed in December of 1996), called for Boston Parks & Recreation, Brookline DPW, and the Metropolitan District Commission (MDC) to coordinate their maintenance resources and actions in the Emerald Necklace. In addition to coordinating some routine maintenance, the parties also established an annual “stem to stern” spring cleanup.

• After the Presidential declared disaster of October 1996, flooding became a driving interest for several of the parties, and the public agencies began meeting formally as the Project Partnering Engineering Group. This group expanded to include the Mass. Emergency Management Agency (MEMA), the Federal Emergency Management Agency (FEMA), the Mass. Bay Transportation Authority (MBTA), as well as four engineering firms on contract with different public agencies. It is note worthy that the engineering firms and their clients all agreed to share information in a compatible format, so as to reduce redundancy and shorten the time it took for results.

It was in this context that an agreement was crafted as an “Addendum to Local Emergency Action Plans Regarding The Potential Flooding of the Muddy River: An Interim Interagency Plan.” This plan (drafted in the fall of 1997) coordinated flood mitigation activities of the MDC, the MBTA, Boston Parks & Recreation, Boston Water & Sewer Commission (BWSC) and Brookline Water & Sewer, with National Weather Service warnings, and has been successfully implemented several times in the last three years. It is also designed to be a dynamic document that can easily be updated as conditions change and hydraulic and hydrologic knowledge increases.

• Working informally and formally with the public agencies and with information gathered from citizens at public meetings, the primary owners of the river and parkland began to craft a “Muddy River Work Plan.” The “plan” went through several drafts before October 1996, as well as in the months after, incorporating flood mitigation solutions. This “plan” later became integrated into a draft “Muddy River Restoration & Action Plan” published by the institutional partners represented by The Fenway Alliance. In addition, a collaborative effort to survey the sediments of the Muddy River involved a private/public partnership of Boston, Brookline, the Department of Environmental Management (DEM), the U.S. Geological Survey (USGS), the U.S. Environmental Protection Agency (EPA), and the Fenway Alliance. In October of 1997 the USGS published a “Channel Morphology and Streambed-Sediment Quality in the Muddy River....”
  
  
• By August of 1998, a “Comprehensive Action Plan” was taking shape, that included flood mitigation, water quality improvements, and landscape restoration, and that recognized the cross-beneficial relationship of specific proposed actions. During the two and a half years, the relationship of the parties, (especially the public agencies) changed, in part due to better interagency communication and greater understanding of each other’s interest, and in part because of changes of agency staff and commitment.

Two years from the date of the first signed agreement and after much effort and hard work by many individuals organizations and groups, a “comprehensive consensus plan” emerged with the filing in January 1999 of an Environmental Notification Form (ENF). The “Muddy River Flood Control and Habitat Enhancement” which is Phase I of The Emerald Necklace Environmental Improvements Master Plan, was filed by the Boston Parks & Recreation Department in collaboration with the Town of Brookline and various state agencies.

Tools for dispute resolution are now being integrated into the work of all state agencies through Executive Order 416, signed by Governor Cellucci in 1999. This executive order requires all state agencies and departments to have a dispute resolution coordinator. This is being done to bring tools such as mediation and facilitation to state government. For more information, contact the Massachusetts Office of Dispute Resolution at 617-727-2224.

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