EnvironmentalLaw Reading and Reflection
EnvironmentalLaw Reading and Reflection
Alternativemeans of resolving conflicts and making decisions have been in thespotlight in the recent times as a result of their attractiveness ascompared to the conventional judicial ways of conflict resolution.The alternative means of conflict resolution include the applicationof negotiation, mediation and contract models. The advantages of theconflict resolution mechanisms have made the alternative means moreattractive especially to environmental conflicts that usually involvenumerous parties that conflict over very sensitive conflicts. In thepaper, emphasis will be put on the use of litigation as the lastoption in resolving conflicts concerning the environment. The paperwill base the argument on the benefits of using the alternative meansof conflict resolution such as mediation and arbitration over the useof lawsuits.
Oneof the advantages of the alternative conflict resolution mechanismsis the broad scope of issues that may be focused on as a result ofthe involvement of involved parties in the decision-making process.Most environmental conflicts are complex and of scientific natureinvolving several opposing parties such as the communities like theaboriginal communities in Nova Scotia, the government ministriesconcerned with the environmental resource and the business entityengaged in the conflict of interest. The involvement of all theparties in mediation, or in arbitration by use of a mediator or anarbitrator respectively may be more attractive as compared to using acourt process. This is because court processes involve the judgeusing their limited knowledge concerning the science of the subjectmatter to make rulings. However, when the conflicting parties employalternative methods, then the resolution results from the knowledgebase of the interested parties and is usually more fair andconsiderate of the issue at hand. Furthermore, the judiciary followsthe traditional laws that fall short of the scientific principlesthat may be key to solving environmental conflicts. In the use ofalternative methods, the rigidity of the rules may apply to theselection of participants that have to be present in the resolutionprocesses rather than directing the operation of creating thesolutions (352). The use of the law makes the alternative methodsmore involving to the required parties as in the case of the NovaScotia bill which stipulates that stakeholders in the environmentaldisputes should include the minister of environment to arbitrate ormediate the proceedings (352). Therefore, alternative methods shouldalways be considered first before lawsuits so as parties can benefitfrom more informed judgments (347).
Thealternative methods of conflict resolution are more cost friendly ascompared to the traditional judicial methods (347). The alternativemethod present cheaper and more time-saving means of solving theenvironmental disputes. According to the assigned reading, the use ofthe judicial mechanisms has been rendered less attractive to solvingenvironmental conflicts as the result of the expenses that areinvolved and the hardness of the lawsuits leading to offenders beingprosecuted. Therefore, to avoid the wastage of funds and at least,get results that are fair to all parties, mediation and arbitrationare becoming more common. The voluntary methods that involve contractmodels also make the resolutions cheaper as compared to the judicialmethods. The reason is that the industry players in the sector agreeto take part in conservation with limited involvement of governmentsponsored and expensive processes that are usually evident inlawsuits (356).
Thealternative methods unlike the application of lawsuits in resolvingenvironmental conflicts are voluntary. Mediation, negotiation,arbitration and use of contract models in the settlement of conflictsrequires consent from the involved parties, and they may choosewhether or not to be involved. Therefore, the decision is not madebased on the power of the judge as in lawsuits, but on the strengthof the involved parties (Spiroska, 2014). The stakeholders agree tobe involved in the conflict resolution processes for their good. Thevoluntary nature of alternative methods makes the processes moreuser-friendly as compared to the use of lawsuits (354). Thealternative methods also encourage joint learning and dialogue thatincreases the understanding of the parties as to why they shouldagree to make certain decisions. Also, apart from just imposingrulings on the parties, the parties take part in enforcing theagreements because they made the provisions. The voluntaryparticipation also ensures more corporation and cost cutting asalready pointed out.
Inconclusion, the benefits of alternative methods over the judicialmethods are based on the cost effectiveness and participation of theinvolved parties and knowledge about the issue at hand. The voluntarynature of participation also presents an additional benefit of thealternative methods over the lawsuits that have previously beencommon. Therefore, in light of the knowledge of the resources andtime that may be saved and the satisfactory nature of the results ofthe alternative methods, litigation should always be considered asthe last option (Walden, Javdani & Allen, 2014). The conflictsmainly relating industries and concerning the environment in Canada,in Nova Scotia in particular should involve alternative methods ofconflict resolution as the preferred methods.
Spiroska,E. (2014). MEDIATION AND CONFLICT MANAGEMENT — CREATIVE STRATEGYTOWARDS SUSTAINABLE DEVELOPMENT OF THE SOCIETY. JournalOf Sustainable Development (1857-8519),5(10),83-98.
Swecker,D. (2006, July). Applying Alternative Dispute Resolution toEnvironmental Problems. Retrieved March 28, 2016, fromhttp://www.mediate.com/articles/sweckerD1.cfm?nl=108
Walden,A. L., Javdani, S., & Allen, N. E. (2014). ENGAGING CONFLICT:SUPPORTING POWER-SHARING THROUGH CONSTRUCTIVE CONFLICT RESOLUTION.JournalOf Community Psychology,42(7),854-868. doi:10.1002/jcop.21657