The aim of this study which was conducted in cooperation with Jérôme Racine and Klaus Winkler, was to assess whether the standardised use of Alternative Dispute Resolution (ADR), in particular mediation, could reduce dispute potential in the area of site selection of mobile communication sites.

The study can be viewed online at http://www.bmwi.de/BMWi/Navigation/root,did=51578.html.

Methodology

The main focus of the study was on the presentation of central ADR procedures and the investigation of their previous implementation as well as an examination of applicability of the mediation system using an example of an actual conflict.

The objective of ADR procedures is to achieve a sustainable balance between the disputing parties by satisfying all interests by ways of professional moderation of the discussion and negotiation process. Amongst the various ADR procedures, the following were examined in greater detail: mediation, strategy groups/ citizen’s report, consensus conferences, ombudsmen, arbitration and the moderated round table. Their application and experiences in an international context to date were disclosed and their chance of dispute mitigation and settlement with respect to the mobile communication debate was evaluated. The authors found that the methods investigated, apart from the round table, have hardly been used in mobile communication neither in Germany nor in other countries. Research regarding use and experience with environmental mediation in the US, Austria and Switzerland was able to identify only one specific case in Austria, where mediation had been used in the sector of mobile communication.

It is the aim of the mediation method to give equal consideration of all interests concerned and to search for the optimum solution for all parties. The practicability of this method in the sector of mobile communication was evaluated using an actual case in Munich, where a transmitter was situated in close vicinity of a primary school and a nursery. The mediation procedure with the four parties concerned (representatives of mobile phone operators, representatives for the Munich council, parents from the primary school and parents from the nursery) was guided by two trained mediators. Employees of wik-Consult were present for observation. The mediation was initially characterised by a constructive and ready-to-compromise attitude of all parties concerned, trying to find a solution acceptable for everyone. However, the implementation of the successfully negotiated solution turned out to be more problematic. The eventual agreement on a “second-best” solution led to great frustration for all parties concerned. As a consequence, the participants judged the negotiation process and retrospectively also the mediation process as “too long”, “unfair” and overall as “inappropriate”.

Conclusions of authors and mediators

The case of the model conflict was evaluated according to the point of view of the mediators as well as the accompanying scientists of wik-Consult.

The mediators analyse the process with respect to potential pitfalls as well as actually committed mistakes and show advantages and disadvantages of mediation. The willingness of all participants to find a compromise was regarded as a central beneficial aspect of the process. The identification of suitable contact persons authorized for decision-making during the investigative phase and problems with the implementation of the negotiated solution are listed as negative aspects. The latter mainly resulted from the delayed involvement of concerned “third parties” and its associated problems of acceptance and procedure. Apparent in this “critical phase” were remaining problems of the participants on the relational and perception level.

Despite the above mentioned problems, the mediators conclude that mediation can be used as dispute settlement methods, in particular in difficult disputes. Standardised procedures, however, would not lead to success.

The authors who attended the negotiation process beyond the mediation, come to the overall conclusion that mediation is only very limited in its function as goal-oriented and adequate to cost-benefit approach for dispute settlement in site discussions. They reject a legal establishment of mediation “as the method of choice” and rather recommend making a decision on the best method of dispute settlement depending on the individual case. They believe that mediation can be used to identify concrete solution alternatives, but is not suitable to deal with fundamental questions or to settle value disputes. These are two aspects which are often present in the background in mobile communication and which strongly shape mobile telecommunication conflicts. The authors recommend investigating alternative methods on their suitability for settling site conflicts, such as citizen’s reports or a moderated round table.

Assessment of the BfS

The impeding and facilitating aspects of identifying this model conflict during the mediation process are presented in a much differentiated manner and therefore provide an extensive and comprehensible insight into the necessary requirements and potential drawbacks of the appropriateness of mediation. It becomes apparent that the success of mediation significantly depends on circumstances which are different for each dispute, are very complicated and can hardly be influenced.

In agreement with the authors, it can be concluded that mediation is only suitable for the area of mobile communication in exceptional circumstances. In light of the research findings, it seems to be more important to offer modular procedures to participants in the mobile communication sector, which can be adapted to conflict-specific characteristics, instead of a complete standardised dispute settling method. Furthermore, own initiative of the participants should be further encouraged and room for manoeuvre presented.