My Turn: Mediation halt no mere misunderstanding

Posted: Monday, March 26, 2001

In the Empire's March 19 article on the demise of the flightseeing mediation effort, Mr. Pete Griffin, of the U.S. Forest Service, and Mr. Bob Englebrecht, of NorthStar Trekking, dismissed the specter of bad faith in the U.S. Forest Service's issuance of permits for the 2001 tourist season as a mere "misunderstanding."

While all participants are disappointed that the mediation ended so badly, it is important for the people of Juneau to recognize that simple misunderstandings do not generally, and did not in this instance, lead to the bitter end. The end came because Mr. Griffin, the flightseeing operators' caucus, and some others who participated, failed to understand and follow the basics of good faith negotiation.

Good faith in mediation requires that all participants operate with candor, honest effort to resolve the problems, and integrity. This means that all participants have a duty to each other to listen carefully and speak up when they disagree with an issue placed on the table, a plan of proceeding, or when they have information that may positively or negatively affect the subject of the mediation or one of the participants. Disclosure (speaking up) is an act of good faith because it places all aspects of the issue on the table for discussion. Failure to disclose (or active concealment) is an act of bad faith. If the dissembling party then acts on the undisclosed or concealed information to the detriment of the mediation or the other participants, this compounds the bad faith.

Early in the mediation design phase, the citizen caucuses explicitly stated that they wanted to discuss the number of flights that would be permitted for the 2001 tourist season. Mr. Englebrecht's caucus did not object to placing this issue on the table. Mr. Englebrecht's caucus did not state that they considered this issue to be decided already or that they were expecting permits to be issued for a particular number of flights. Indeed, they seemed eager to discuss it in terms of their interests (growth in the number of flights permitted). During these discussions, Mr. Griffin was asked about the timing of any permit that might be issued for 2001. Mr. Griffin represented that there were no set dates for issuance - he never disclosed (as he now claims) that he had to issue the permits in the fall to facilitate the flightseeing operators' planning process.

The mediation did not fail because some of the participants simply "misunderstood" what was happening. Several people at the table acted, whether inadvertently or by design, in bad faith when they failed to disclose pertinent information to all mediation participants before they acted on it outside the mediation. The mediation effort failed because the imprudent actions of some participants actively misled others and created mistrust between the participants. That Mr. Griffin and Mr. Englebrecht now try and minimize the impact of their caucuses' actions by claiming a simple "misunderstanding" is not only disappointing it is disingenuous.

Mala J. Reges of Juneau is a member of Cruise Control, Inc.

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