Finding Common Ground: Addressing Environmental Disputes Through Mediation

Atty. Brenda Jay Angeles-Mendoza

As a founding member of the Mediators Network for Sustainable Peace (MedNet), former chief of the Supreme Court’s Philippine Mediation Center, and part of the Philippine Judicial Academy’s (PHILJA) Alternative Dispute Resolution (ADR) Department, I was honored to represent MedNet as a speaker at the 6th Asian Mediation Association (AMA) Conference held last October 15-16, 2024, at Shangri-La The Fort in Taguig City.

Supreme Court Associate Justice Alfredo Benjamin S. Caguioa delivers the Keynote Address during the opening ceremonies of the 6th Asian Mediation Association Conference. (Supreme Court Public Information Office)

Hosted by the Supreme Court of the Philippines, the conference brought together over 600 mediation practitioners from across Asia.

The conference theme, “Harmony and Strategic Innovations in Mediation and Alternative Dispute Resolution,” resonated deeply with me. The sessions were designed to spark dialogue, inspire new thinking, and facilitate the sharing of insights on various facets of mediation and ADR.

The breadth of topics was impressive, ranging from access to justice and cross-cultural dispute resolution to family mediation, online platforms, and even the ethical considerations of digital mediation.

I had the privilege of speaking in a session focused on “The Use of Mediation in Managing Environmental Disputes.” Sharing the stage with Mr. Francis Goh (Mediator, Singapore Mediation Centre), Mr. Tomasi Keni (Mediator, Fiji’s Ministry of Employment, Productivity and Workplace Relations), and Hon. Divina Luz P. Aquino-Simbulan (Judge, Regional Trial Court, San Fernando City) as reactors, and with Prof. Marjorie T. Uyengco-Nolasco (Member, PHILJA, ADR Department) moderating, made for a truly enriching discussion.

In my presentation, I began by illustrating the diverse nature of environmental disputes. They can be as straightforward as a neighborly squabble over misplaced garbage or as complex as multi-stakeholder conflicts concerning natural resource utilization or the environmental and social consequences of development projects.

These disputes often generate controversy, clog up court systems, and breed persistent animosity that defies resolution. They pit neighbor against neighbor, citizen against government and business, and community against community. In some cases, they even spill across international borders, leading to lasting environmental degradation.

Through my years of experience, I've come to recognize unique attributes that characterize environmental disputes.

First, their scope and impact frequently extend beyond political and geographical boundaries. Second, they involve a multitude of parties, often spanning sectors and even generations. Third, the issues are inherently complex, encompassing technical aspects like pollution and environmental impacts alongside social concerns such as public engagement and acceptance. Fourth, questions of accountability for preventive measures, mitigation efforts, and environmental damages frequently arise at the intersection of science, technology, economics, and law. Fifth, the urgency and timeliness of addressing these issues are often critical. Sixth, environmental disputes invariably touch upon issues of access and equity, particularly within host and neighboring communities, including indigenous populations. Seventh, these disputes are imbued with public interest, as most court cases are rooted in the constitutional right to a balanced and healthful environment.

I then explored how environmental disputes are addressed within the Philippine context at various levels of governance. The Supreme Court, recognizing the distinct characteristics of these disputes, issued its Rules of Procedure for Environmental Cases in 2010, explicitly acknowledging their suitability for mediation and establishing guidelines for the process.

Within the executive branch, specifically the Department of Environment and Natural Resources (DENR), mediation is integrated into administrative procedures, including environmental impact assessments (EIAs).

Moreover, contracts between the government and private entities, as well as with local government units (LGUs)—particularly those concerning the exploration, development, and use of natural resources—are required to include provisions for ADR mechanisms, including mediation, to address potential environmental concerns.

Atty. Brenda Jay Angeles-Mendoza with the MedNet staff during the 6th Asian Mediation Association Conference. (MedNet)

I also highlighted the role of mediation in promoting accountability within multilateral institutions. For instance, the Compliance Advisor/Ombudsman (CAO), the independent accountability mechanism for projects supported by the private sector arms of the World Bank Group, utilizes dispute resolution to mediate environmental and social impact issues raised by affected communities.

Similarly, the Asian Development Bank (ADB) employs a problem-solving approach, akin to mediation, when ADB-funded projects are alleged to directly harm complainants through environmental damage, displacement, or loss of livelihood.

At the request of the AMA Conference Secretariat, I shared insights from two specific cases that highlighted the complexities and potential of mediation in environmental disputes.

I recounted my experience with the Luzon Hydropower case, a situation where mediation proved to be a powerful tool for achieving a mutually agreeable outcome. This case became a testament to how mediation, when applied thoughtfully, can foster social cooperation and pave the way for more coordinated and effective actions aimed at environmental protection.

In contrast, I also presented the Philippine Movement for Climate Justice (PMCJ) coal-fired power plant case. In this instance, despite our best efforts, we were unable to reach a mediation agreement. While the lack of a resolution was disappointing, the experience was far from a failure.

It demonstrated the potential of mediation, even when unsuccessful in forging an agreement, to inform policy and push for greater accountability. It served as a reminder that the process itself can be valuable in raising awareness and clarifying the issues at stake.

Reflecting on these experiences, I shared some key insights I’ve gained over the years regarding the mediation of environmental disputes.

I explained that while the mediation process in these cases can be demanding, requiring substantial groundwork and careful preparation due to the sensitive and often complex nature of the concerns involved, it offers an incredibly flexible framework for managing conflicts related to the environment.

Mediation, I emphasized, presents a unique opportunity to design frameworks for implementing agreements in a way that is tailored to the specific needs and circumstances of the parties involved. It fosters inclusivity by opening the door to broader participation from diverse organizations and stakeholder groups, ensuring that all voices are heard and considered.

Moreover, it allows for the engagement of co-mediators with complementary skills and the inclusion of technical experts who can provide clarity on complex data issues, contributing to a more informed and productive dialogue.

And perhaps most importantly, I noted that mediation has a strong potential for increasing transparency and creating a level playing field for information sharing among all parties involved, building trust and fostering a more collaborative atmosphere.

The Luzon Hydro case underscored mediation's potential to foster social cooperation and more coordinated environmental protection efforts. Conversely, the PMCJ case demonstrated its capacity to inform policy, including the pursuit of accountability.

Successful mediation can be transformative, particularly in reshaping relationships between parties by turning conflicts into opportunities for collaborative problem-solving, ultimately contributing to sustainable development and ecological balance.

However, I emphasized that mediation is not a cure-all for every environmental dispute. Mediators must remain aware of the unique characteristics of these conflicts.

Mediation can be especially challenging when there are significant power imbalances among the parties (e.g., fear of reprisal), a lack of interdependence, a long history of distrust (making it difficult to establish agreements when past commitments have been broken or transparency and accountability have been lacking), or a clash of deeply held values that leave little room for compromise.

Chief Justice Alexander G. Gesmundo, First Lady Louise Araneta-Marcos (center), and the Associate Justices of the Supreme Court join the participants of the 6th Asian Mediation Association Conference. (Supreme Court Public Information Office)

Ultimately, when seeking common ground in environmental disputes, I find inspiration in the simple truth: “The Earth is what we all have in common.”

The AMA Conference was established in 2007 by the Hong Kong Mediation Centre, Indonesian Mediation Center, Malaysian International Mediation Center, Philippine Mediation Center, and Singapore Mediation Centre.

They were later joined by members from China, Fiji, India, Japan, and Thailand with the collective goal of promoting mediation and ADR in resolving business and commercial disputes through close cooperation among its members.

It is through forums like the AMA Conference that we can collectively advance the use of mediation and ADR in resolving complex disputes and fostering a more sustainable and harmonious future.