Professor Philip Harter
Spring, 2004

Course 631L


The main text for the course will be Harter and McCrory, Environmental Dispute Resolution: Selected Readings (Revised 2002 Edition). In addition, everyone should become familiar with Fisher and Ury, Getting to Yes. To a very large extent, this is an experiential course in that after an initial discussion of the basics, the classes will for the most part be devoted to simulations and exercises on the theory that it is better to see how this stuff is done and to make your mistakes here than when it counts on the line. As a result, unlike most other classes, we will not review the readings in detail. Rather, they form the backdrop for what we will do in class. You are, however, expected to do all of the readings. And, as another result, you are expected to attend every class.

Grades will be based on a research paper that will be due the last day of the exam period. In addition up to three bonus points may be awarded for outstanding performance in class, and up to three demerits may be taken for class absences and lack of participation in the exercises.

You are encouraged to develop a topic for your research paper that is of particular interest to you. Since this is a relatively new field, numerous issues and topics would be appropriate subjects for research papers because of their importance to its development and growth, because they have not been adequately explored, or because their use remains controversial. If you have a special interest, let's discuss it. The papers must be at least 15 pages long, typed, double spaced in standard paper format, and include supporting notes.

Research paper deadlines:

I will usually be in my office on Wednesday and Fridays (and many other days as well). Feel free to drop in at any time. If you wish to make an appointment or need immediate attention, I check e-mail ( regularly or call me at 884-3614 which is my office number or at 202-257-4735.

I have to be in Washington (talking about this very stuff) on February 27, so there will not be class that day.


Introductory Materials

January 16 Discussion of the course coverage and objectives, and administrative matters.

We will watch a video on the use of a mini-trial to resolve an environmental issue.
January 21-23 Introduction to the nature and characteristics of public policy disputes and of the various ADR processes. We will discuss the current use of ADR by government agencies.

Sections I, II, and III. Read materials on pp. 1-4 and all of III carefully; skim the remainder for a general flavor and overall understanding. We will review the general structure of the Administrative Dispute Resolution Act, Negotiated Rulemaking Act, and Uniform Mediation Act in the Appendices.

Negotiating Rules and Other Forms of Policy

January 28-30 Negotiated rulemaking and the use of consensus to develop government policy

Sections IV and V. Review the materials starting on pp. 92 and 100 not for their specific content but rather for their structure: what kind of information do they contain; how is it set out; why; what function do these documents play?
February 4-6 Class will be devoted to a convening exercise.
February 11-13 The use of mediation to resolve complex environmental disputes generally; the role of groundrules; putting together a consensus process.

Section VI. Review the various documents (those from p. 161 on) for their abstract provisions and style, not their specific content. Note how they differ from each other; why?


February 18 We will continue our discussion of the mediation of public policy disputes generally and the preparation to be a participant in the negotiations.

Section VII; Getting to Yes.
February 20 What mediators do and their various styles, and the emerging and confusing law on confidentiality.

Sections IX and X; Uniform Mediation Act; Review Section XI.
February 25 The role of government agencies in public policy dispute resolution.

Section VIII

Mediation Exercise

March 3 We will begin our general discussion on the dynamics of waste facility and other NIMBY siting disputes. We will begin a siting exercise that will occupy us for a month or more. The class will divide into teams. The general facts and legal setting will be distributed, with time for students to read them and ask any clarifying questions.

Section XI

Preparing for the negotiations: Each team will meet to assign roles and develop their strategy for the negotiations. The mediators will develop draft protocols and may choose to meet separately with the various caucuses.
March 5-April 23 The negotiations begin. As you engage in this combat, you should go back and review Getting to Yes and the materials in Section VII.

Now that you are somewhat experienced in such matters, we will briefly discuss what you look for in selecting a neutral. Like the sessions before, the preponderance of the class will be devoted to the negotiations. Following this session, the mediators will prepare a status report and a proposed outline of a settlement. They may wish to meet with various caucuses prior to the next session.
April 28 Final negotiating session: you live or die today!
April 30 Review and debriefing of the exercise: what did we learn about negotiating these things.

Copyright 2004 Philip J. Harter. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.