Storm water run-off disputes – resolving neighbor wars

Storm water run-off is a condition that can create serious “neighbor wars” when changes occur unexpectedly. Personal animosity arises quickly when one neighbor’s development or renovation of its property, creates new or increased flow of surface water that damages its neighbor’s property. The end result is often litigation and undying resentments that last for years. Yet these disputes can be perfect candidates for collaborative dispute resolution. If the parties can focus on a mediation process that looks for a reasonable technical solution, they will be far better off and problems solved in a much quicker and cost effective manner.

The conditions created by development and the resulting change in water flow and absorption patterns are summarized in the attached diagram. As vegetation and natural landscapes are changed to impervious materials by construction, surface flows increase potentially creating problems for downstream neighbors. If appropriate structures required by proper engineering and regulations are included in the projects, these impacts can be mitigated or eliminated. However this can be a somewhat imprecise science and the nature of storm conditions has also been changing over the years.

One recent experience involved farmers and a residential development in a county in Pennsylvania. After years of frustration and attempts to seek help from the county government, the farmers ended up suing the home owners’ association and the developer for damages caused to their farms by increased storm water run-off. The development had allegedly increased the water flow onto the adjacent farms even though the water management plan was approved by the county and showed no change in run-off. The farmers experienced erosion, increased mud patches as well as the formation of potential new “wetlands”. One major concern was that endangered turtles would inhabit the new conditions, which would dramatically change the land use requirements on the farms.

My next post will describe how this matter was resolved in a mediation process that focused primarily on searching for a technical solution that all the parties and their experts could agree to.

Mediation in Infrastructure Planning – Using Consensus Building

The principles of mediation could play a much greater role in the decision-making for planning and implementing investments in improving our cities’ infrastructure. Capital projects involving urban redevelopment, transportation, water and energy require a great deal of political will, substantial upfront investment and a very lengthy process for implementation. Typically the public involvement is merely a box to be checked in the environmental review process and not a serious effort to seek and build consensus.  Project opponents often do not get seriously engaged at the outset and can create greater trouble later on, when a simple majority of the governing entity wants to move forward.

The delays in these projects can not only delay the benefits to communities, but also add tremendously to the cost. Cost and delay issues in turn further delay and jeopardize the project by adding more controversy. Consensus-building is a form of mediation in multi-stakeholder decision-making, and in many cases can help solve these problems by expediting the time to get to an agreement.

The Consensus-Building Process

Consensus can be defined as a general or wide spread agreement among all the members of a group of diverse stakeholders. It is not about achieving unanimity. Rather it is more of a nearly unanimous agreement. The process goes beyond reaching consensus but also includes implementing the agreement successfully.  It involves investing enough in your decision-making process to get the right people to the table, and to get the right ideas on the table, in ways that invite productive problem solving.  It typically calls for the involvement of some form of mediator to shepherd the process.

In consensus-building the mediator is used to assist competing interest groups to reach agreement on issues in controversy affecting a large number of people. Consensus-building typically involves informally structured, face-to-face interactions among representatives of stakeholder groups. One objective is to gain early participation from affected interests with differing viewpoints, including potential opponents. The goal is to produce sound decisions with broad support, thus greatly reducing the likelihood of subsequent disagreements or legal challenges.

The book by Lawrence Susskind and Jeffrey Cruikshank, “Breaking Robert’s Rules: the new way to run your meetings, build consensus and get things done“, is an excellent blueprint of how to conduct a consensus-building process. The purpose is to improve the simple majority rule process run by Roberts Rules of procedures, with a process intended to gain broader support and better solutions. Five steps are identified in the consensus-building process: convening, clarifying responsibilities, deliberating, deciding, and implementing agreements.