This Land is Our Land: Proposing a Mediative Model for Public-Private Land Use Disputes

by Erik J. Stock

I. Introduction

Land use conflicts are prevalent throughout our society. [1] A product of the multiplicity of strands in a bundle of property rights, a land use conflict implicates a core tension in community life: protecting one's own land against the encroachment of others. [2] Every state but Texas authorizes land use regulation at the local level. [3] Community land use preferences are primarily expressed through zoning regulations. [4] The practice of land use planning reflects a desire to put limitations on free-market land transactions. [5] As states become more and more concerned with promoting sustainable (i.e., smart) growth, [6] conflicts between landowners and state planning agencies will also likely grow more common.

Land use planning was developed as a method to protect the public's interest in land. [7] Early planners in the first parts of the twentieth century used the police powers of their localities to divide land "into various zones subject to height and bulk restrictions and use prohibitions." [8] Due to these rationalist foundations, bargaining was not originally allowed in applications for development – the locality would either approve or deny the application based on the quasi-scientific local development plan. [9] This traditional zoning approach has to a large extent disappeared in favor of a flexible, mid-range planning practice that embraces negotiations between developers and localities. [10] Under such a regime, the exchange of benefits is typically the developer making some concessions regarding the development plan and the zoning locality marking the project for approval. [11] Today, "[z]oning regulations no longer serve as a fixed vision of the community's plan, but rather as a baseline rights allocation from which a locality and developer bargain." [12] This shift from the rationalist, insulated decision making ideal to a reality where negotiation is the norm creates both special problems and unique opportunities for public land interests, and both will be discussed at length in this paper.

Like all disputes, land disputes can be typified and put into categories. A typical dispute often involves a developer seeking a variance to build a project – a shopping center, condominium, parking garage – for which a site has not been zoned by the local authority. [13] The local zoning agency may either grant or deny the variance. [14] If the variance is denied, the developer will become the plaintiff in any ensuing dispute. If the developer gets the variance, "the plaintiff will generally be a member of the public, who may often be motivated by purely selfish interests inconsistent with the general welfare." [15] It is clear that there is a need for a third way of reaching consensus where public land interests are at stake.

As may be clear from the amount of space devoted to discussing public land planning, this paper is not concerned with purely private land use disputes. Rather, what will be dealt with at length are public–private land use disputes. In short, this means disputes arising out of interactions between private parties and public land planning agencies. In such disputes, the courts have traditionally found it worthy to protect the public's interests in the rate of land development, public health, the environment, and aesthetic concerns. [16] At a more fundamental level, such disputes also implicate the public's interest in its right to petition the government for redress of grievances. [17]

There exists a full spectrum of options for resolution of any land use conflict. One end is anchored by formal judicial intervention, [18] while the other end is anchored by informal negotiation among private parties. When successful informal negotiations do occur between private parties, the dispute is resolved quietly and public records do not exist. [19] This paper advocates for the adoption of a mediative model for the resolution of land use disputes where public land interests are at stake, which does not necessarily mean that land use disputes be solved solely through traditional full-scale, neutral third party mediations. [20] Rather, it is anticipated that regardless of the final form of the programs developed and adopted by localities, the core concepts of mediation will be embraced and practiced. [21]

II. The Problems with Negotiated Settlements to Land Use Conflicts

Negotiated settlements are not uncommon in public-private land use disputes. [22] Due to its very nature as a limited, virtually unique commodity, land lends itself well to negotiated — as opposed to uniformly static — use regulation. [23] While early efforts at setting national land use policy seemed to ignore the role of negotiation in land-use disputes, [24] more recent policymaking attempts do recognize negotiation and mediation as valuable tools. [25]

At first glance, negotiation appears to be an attractive tool to create value among parties in a public-private land use dispute. [26] Free market negotiation is extensively recognized as providing the best opportunities to create value in unexpected ways. [27] Furthermore, the zoning process allows for a number of interactions between landowners and public agencies, which can then be used as negotiation opportunities. [28] However, unrestricted negotiation in this context can be problematic. The courts have generally required that negotiated land use agreements must "be reasonably related to the goal of protecting neighboring properties from the potential impacts of the proposed use" and "be consistent with some overall plan." [29]

Regardless of the traditional judicial limitations placed on negotiated land use agreements, the courts are becoming less willing to enforce those limitations, and the current planning regime is largely one of negotiated agreements. [30] This trend continues when land use disagreements become land use disputes. There is some indication that courts are allowing lawsuit settlement negotiations to circumvent the limitations, discussed supra, placed on local zoning authorities. [31] This new negotiation regime has some serious drawbacks and negative implications for public land interests. Negotiated agreements in this context have been called "increasingly exclusionary, inefficient, and poorly planned." [32] For a proponent of mediation, the most resounding criticism of negotiated land use agreements is that they ignore community and place limitations on the exercise of community involvement and cooperation values. [33] If these criticisms are accepted as true, then public land interests are at risk of being sacrificed during negotiations. Indeed, the relevant community members may not even be aware of the ongoing negotiations until it is too late to speak up in protest. Any proposed model for mediative solutions must take into account the problem of providing notice to stakeholders who may wish to assert their interests as members of the public at a sufficiently early stage such that they may participate effectively.

Three primary concerns emerge when negotiation is allowed in land use disputes between private parties and public actors: (1) the capture of public actors by powerful private parties; [34] (2) the possibilities of abuse resulting from unrestrained state action; [35] and (3) the adequate representation of the public in a negotiation where public rights are at stake. [36] It would be impracticable to suggest that a complete re-working of the system of land use planning and development be undertaken to address these concerns. Rather, a much more workable solution would be to implement protections into the current system, or to create an ancillary, related dispute resolution system for these public-private disputes.

In order for the current system of land use planning to regain its legitimacy as a process that works to serve public interests, different process values need to be put into place. In general, taking guidance from collaborative law theorists and what can be termed the rhetoric of democracy will provide some guidance. This rhetoric includes a call for broader and more meaningful public participation, increasing public involvement in implementation of accountability measures, and a planning system that emphasizes flexibility and adaptability. [37] One particular extension of the rhetoric is the call for an increase in the level of facilitation in the planning system, and a de-emphasis of the role of planning agencies as all-knowing brokers of the public interest. [38] Giving credence to this rhetoric of democracy creates an opening through which mediation can step in order to provide solutions to concerns with the current land use planning system, without circumventing or disposing of the system in a wholesale manner.

III. Benefits of Adopting a Mediative Model

The use of mediation in public-private land use disputes has the power to reduce, if not eliminate, the concerns stemming from the negotiated land use model. Mediation is an attractive dispute resolution mechanism in these matters because of its ability to foster and maintain relationships between parties — especially in land use disputes where often the parties are neighbors engaged in long-term relationships. [39] In addition, land use decisions tend to be more localized than other sorts of public decisions and are more likely to result in disputes than other sorts of public decisions. [40] Another peculiarity is that land use control processes, at least at the zoning board level, are a combination of the adjudicative and political. [41]

The high number of disputes by individuals with interlocking community ties, which are also of a judicial-political nature, provide compelling opportunities to which a mediative model could be applied. Leonard Riskin writes of the advantages of mediation over lawsuits and other adversarial proceedings:

Mediation . . . is cheaper, faster, and potentially more hospitable to unique solutions that take more fully into account nonmaterial interests of the disputants. It can educate the parties about each other's needs and those of their community. Thus, it can help them learn to work together and to see that through cooperation both can make positive gains. [42]

If indeed the numbers of disputes arising out of the zoning and other land use control systems are relatively high, then Riskin's argument is increasingly salient as far as the land use context is concerned. [43] Furthermore, Riskin's emphasis on unique solutions that reinforce community values is compelling when discussing land use disputes between neighbors and fellow community members.

The benefits of mediation dovetail nicely with the rhetoric of democracy, discussed supra. Mediation offers an answer to the call of meaningful public participation in solving land use disputes. In a defense of court-sponsored alternative dispute resolution mechanisms, U.S. Magistrate Wayne Brazil has recently written "that to sustain the health of our democracy, it is essential that our public institutions be healthy – that they be truly useful to the people . . . ." [44] An illustrative model of the potential benefits of increased public participation in a traditionally administrative area may be found in the negotiated rule-making literature.

Negotiated rule-making places its focus on consensus building, rather than top-down administrative imposition of rules. [45] Such rule-making requires a creative view of problem solving and by definition incentivizes public participation. [46] Indeed, negotiated rule making processes are "more likely than the traditional rule-making process to be sites at which regulatory problems are redefined, innovative solutions devised, and institutional relationships rethought in ways that are likely to increase both quality and legitimacy." [47] Regardless of the benefits, negotiated rule-making is not without its limitations. [48] Unfortunately, the scope of this paper is not sufficiently expansive to offer a full treatment of negotiated rule-making. However, as a model of how to increase public participation in a traditionally closed process, negotiated rule-making has much to offer any locality attempting to incorporate a mediative model into its land use dispute regime.

In an effort to promote the expansion of collaborative governance, the Association for Conflict Resolution (ACR) has published a report detailing some recommendations for best practices. [49] The report's description of the context in which collaborative governance is successful reads like a textbook detailing public-private land use conflicts:

Consensus-based agreement-seeking processes have proven successful in a wide array of applications, particularly where several agencies or levels of government have jurisdiction, power is fragmented, and there are a variety of stakeholders with conflicting views (e.g., resolving complex multi-party issues, developing regulations, policy making, strategic planning). [50]

The report goes on to describe collaborative agreements as lasting and mutually satisfactory to the parties. [51] Some of the recommendations are particularly relevant to the issues under discussion here. ACR suggests that for a collaborative and facilitative government process to be successful, facilitator neutrality, sufficient funding and support, and collaborative creation of ground rules by all parties must be present. [52] The ACR report is not limited to negotiated rule-making, although it is surely within the purview of the report. The report also gives some guidance about how to bridge the gap between administrative rule-making and other governmental processes that embrace the collaborative governance model – a critical component of any mediative land use dispute resolution process.

The rhetoric of democracy is heady and is often replete with idealism, but this rhetoric also essentially rings true. Property rights are fundamental to the American way of life, so fundamental that the drafters of the Constitution protected them by including the Fifth Amendment prohibitions against deprivation of property without the due process of law and uncompensated takings. [53] Furthermore, the American Planning Association feels that a non-binding mediative process is the preferred method for administrative agencies to provide relief in disputes. [54] Mediation and mediative processes offer a way to forge creative solutions that take account of the public's participation in the process.

IV. Occasions When a Mediative Model Would Have Been Effective

The World Trade Center Site. The panoply of public interests at the World Trade Center site in New York City make it one of the highest profile land redevelopments in the world, on par with the greatest land re-developments of all time. [55] The number of people who died at the site, combined with the site's prominence in the emotional consciousness of both New Yorkers and Americans in general, make for a complicated soup of public interests. A critical question that any redevelopment of the site must answer is: how are we to remember ourselves? [56]

The redevelopment plan for the World Trade Center site was approved in 2004 by the Lower Manhattan Development Corporation, [57] but to this point the discord surrounding the redevelopment project has not abated and building has yet to begin. [58] At least part of the reason redevelopment is stalled seems to be the number of different interests at stake with the project. [59] Multiple and potentially diverging interests make the World Trade Center site redevelopment seem like a perfect candidate for mediation. Instead of the traditional top-heavy planning mechanism employed by the Lower Manhattan Development Corporation in its site plan, one wonders if a multi-party mediation might provide a more effective mechanism for the various interested parties to have a satisfying role and voice in this most public of projects. By way of a coda, recently some mediation has occurred in connection to the site: but it is at best ancillary to productive re-development. [60]

Gilpin County, Colorado. In an effort to relieve economic stagnation in their community, residents of Gilpin County, Colorado, approved limited-stakes gambling in 1991. [61] The affected towns within the county held planning meetings in preparation for the gambling development that "served a variety of functions." [62] Not only did the meetings serve as a forum for concerned residents, they also provided a place "for hopeful developers to obtain information and seek concessions from the local leadership." [63] As reported, these meetings appear to operate very much within the traditional negotiated planning environment. The local planning meetings featured the local leadership discussing tangible issues such as zoning, while the local residents expressed concerns about intangible, quality of life issues. [64] After gambling was instituted, community problems and dissatisfaction began to accrue. [65] A number of these problems were attributed to the failures of the planning process. [66]

The story of Gilpin County is striking as a case study in the failures of the modern planning environment. The differing interests of the town planners and the local residents might very well have been better addressed through a more mediative process. The problem seemed to be town "planners talk[ing] about making local systems work better, whereas residents [were] talk[ing] about helping local people feel better." [67] When two key stakeholding groups are talking about two different sets of values, a direct conversation based on a mediation model might very well serve to reconcile those values and work to create a more sustainable resolution.

The Puyallup Tribe. Native American tribal land rights present a fantastic opportunity for the adoption of mediation in public-private land use disputes. While tribal stakeholders are identifiable, as a group they create a diverse and unwieldy litigation class. [68] Furthermore, tribal land litigation often has two phases: determining the existence of rights and finalizing the application of those rights. [69]

A case in point is the Puyallup tribe in Tacoma, Washington. The Puyallups owned large tracts of land in and around the city of Tacoma that were ceded to them in a treaty. [70] The ensuing negotiations between the tribes and the opposing stakeholders — including both the federal and Washington state governments, the Port of Tacoma, and private property owners — resulted in a $162 million settlement in favor of the tribe. [71] Not all tribal parties to the settlement were pleased. [72] Furthermore, the tribe had to first litigate the existence of their treaty rights. [73] It seems clear that a mediator might have successfully been able to not only assist the parties in reaching this settlement, but also could have saved the parties the costs of the initial litigation. [74] Additionally, the involvement of a mediator could have provided the many process benefits and protections available to parties in a mediation. There is a good chance that the involvement of a mediator might have resulted in a more satisfactory settlement for all. [75]

Post-Katrina New Orleans. When Hurricane Katrina flooded the Lower Ninth Ward of New Orleans, the neighborhood became "a vortex of overwrought emotion and intemperate rhetoric, a stand-in for conflicting visions of the city's future." [76] Within days of the disaster, residents of the neighborhood began to believe it would be erased from the city map simply because its population is primarily black. [77] Before the water subsided, racial divisions appeared regarding the future of the neighborhood. [78] Of course, the disaster in New Orleans has occurred too recently to be the subject of many, if any, in-depth scholarly studies. However, the situation of the Lower Ninth Ward appears to be a textbook case for adopting mediative land use planning. Diverse stakeholders — including residents of the neighborhood, other residents of the city, and members of city, state, and national governments — all have interests in re-shaping both New Orleans and the Lower Ninth Ward. [79] Mediation would be a way for these diverse stakeholders to not only plan for a new city, but to redefine their relationships as well.

V. Issues That Must Be Addressed in Any Mediative Model

However a mediative model for resolving public-private land disputes is actually implemented, the process that is put into place will need to embrace openness and public participation if it is to achieve greater legitimacy than the current system of closed negotiations. Owen Fiss and others have criticized out-of-court settlement because it tends to ignore public process values. [80] To avoid such objections, the model contemplated here needs to have the features of open democracy that the collaborative law theorists embrace. Namely, a process that incentivizes openness and active public participation, and includes a willingness to create flexible solutions. [81] At first blush, such an open process appears to have implications for the mediation confidentiality privilege under the Uniform Mediation Act (UMA) in the nine states that have adopted it. [82] However, the UMA covers court-annexed mediation and mediation where the parties agree to confidentiality, so conflicts with the privilege, and others like it in non-UMA states, should not be a problem with careful program design. [83]

The issue of mediator selection will be automatically implicated when adopting any system of mediation. Whether mediators should come from a fixed pool or be gathered on an ad hoc basis is a critical question that will need to be confronted. A related question is how mediator quality might be ensured. Some combination of mediator rosters, education, voluntary standards, and free market controls has been suggested as a way to ensure mediator quality. [84] Another route to ensure quality would be for localities to adopt or otherwise implement the Model Standards for Mediator Conduct, which have already been adopted by the American Arbitration Association, American Bar Association, and Association for Conflict Resolution. [85]

Finally, it is necessary to provide for the representation of the public's interests in land use mediations. Maryland's local counsel system stands out as a way through which to address the need to represent the public interest. [86] A local People's Counsel is "typically a Maryland attorney with considerable knowledge and experience in the areas of local zoning, subdivision, and environmental laws tasked with promoting and protecting the public's interests." [87] In the process of promoting the public's interest, the People's Counsel also protects the integrity of the zoning process. [88] Not only does the People's Counsel step in on the public's behalf to protect the zoning system, the office serves to directly address the power imbalances posed when large developers infringe upon public rights in areas where an interested public entity of comparable size and sophistication is unable or unwilling to step forward. [89]

Even though a People's Counsel primarily represents the public in litigation, [90] there is also a potential for mediation to become a part of the official program. Although mediation extends beyond the formal scope of the program, attempts to formalize a mediative role for the People's Counsel are underway in at least one Maryland county. [91] An additional benefit of the program is that if the dispute moves from mediation or negotiation to litigation, the People's Counsel automatically has standing before the court. [92] The People's Counsel Program, not a panacea in and of itself, is illustrative of the sorts of measures that will need to be taken to fully protect the public's land interests that are at stake in so many planning decisions.

VI. Conclusion

If public land interests are to be protected in a meaningful way, the current system of negotiated land use controls needs to be re-evaluated. Borrowing from the fields of collaborative law and mediation, and examining existing public consensus-based approaches, possibilities for a mediative model emerge. For such a model to be a successful improvement upon the current system, it will need to embrace not only the rhetoric of democracy, but also the actions of democracy. Land use disputes are by definition local disputes, and rather than propose a comprehensive model, this paper has examined some considerations that any land use dispute resolution program might embrace in order to strengthen its mediation components.

[1] See, e.g., Donna Boynton, Grafton Panel to Oversee Proposed Project: Committee to Protect Town Interests at Fisherville Mill, Telegram & Gazette (Worcester, Mass.), Sept. 21, 2006, at B1; Darren Meritz, Proposed Zoning for New Quarry is Denied, El Paso Times, June 2, 2006, at 8B; Gena Kittner, Big-Box Compromise Appears Close; Sides May Reach Agreement on Parking, Wis. St J., Mar. 26, 2005, at D1; Editorial, Don't Give Up; Our Position: Florida Has No Business Gutting Its Law on Huge Developments, Orlando Sentinel, Mar. 29, 2004, at A14.

[2] See Erin Ryan, Student Article, Zoning, Taking, and Dealing: The Problems and Promise of Bargaining in Land Use Planning Conflicts, 7 Harv. Negot. L. Rev. 337, 338 (2002).

[3] Edward J. Sullivan & Carrie Richter, Out of the Chaos: Towards a National System of Land-Use Procedures, 34 Urb. Law. 449, 449 (2002).

[4] Ryan, supra note 2, at 338.

[5] Id. at 351.

[6] See Patricia E. Salkin, The Smart Growth Agenda: A Snapshot of State Activity at the Turn of the Century, 21 St. Louis U. Pub. L. Rev. 271, 271–72 (2002).

[7] See Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement, and Adaptive Planning in Land Use Decisions (pt. 1), 24 Stan. Envtl. L.J. 3, 9 (2005).

[8] Id at 10.

[9] Id. at 9, 12.

[10] Ryan, supra note 2, at 348–50. This new negotiation-oriented planning environment allows for an exchange of benefits between the two parties. Id. at 350-351.

[11] Id.

[12] Camacho, supra note 7, at 16.

[13] Hon. Richard S. Cohen et al., Settling Land Use Litigation While Protecting the Public Interest: Whose Lawsuit is this Anyway?, 23 Seton Hall L. Rev. 844, 847 (1993).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id. at 844.

[19] At this point, studies detailing empirical rates of such private dispute resolution processes have not been located by the author.

[20] See Stephen B. Goldberg, Nancy H. Rogers & Sarah R. Cole, Dispute Resolution: Negotiation, Mediation, and Other Processes 111 (4th ed. 2003) (offering an overview of goals associated with traditional mediation).

[21] Some of these core concepts have been described as fairness, party self-reliance, and party empowerment. Robert Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict through Empowerment and Recognition 29–30 (1994).< Additionally, party self-determination and mediator impartiality are closely-held values for mediators and should also be adopted for any mediative model under consideration. Model Standards of Conduct for Mediators Standards 1 & 2 (2005), available at http://moritzlaw.osu.edu/programs/adr/msoc/pdf/standards-090805.pdf (last visited Feb. 19, 2007).

[22] Ryan, supra note 2, at 338.

[23] Id.

[24] See Sullivan & Richter, supra note 3, at 451–58.

[25] Id. at 459–60.

[26] Ryan, supra note 2, at 338.

[27] See generally Robert H. Mnookin, et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes 4 (2000) (discussing the ways in which negotiations can lead to value creation for all parties).

[28] See Ryan, supra note 2, at 358.

[29] Camacho, supra note 7, at 21–22. Three prominent court cases in the last thirty-five years have explicitly and positively dealt with land use dispute mediation, indicating that widespread judicial support of a mediative model is possible. Santa Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors, 100 Cal. Rptr. 2d 740 (Cal. Ct. App. 2000); Medeiros v. Hawaii County Planning Comm'n, 797 P.2d 59 (Haw. Ct. App. 1990); Fasano v. Bd. of County Comm'rs of Wash. County, 507 P.2d 23 (Or. 1973).

[30] Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement, and Adaptive Planning in Land Use Decisions (pt. 2), 24 Stan. Envtl. L.J. 269, 270 (2005).

[31] Cohen, et al., supra note 13, at 855.

[32] Camacho, supra note 7, at 35-36.

[33] Id. at 49.

[34] Id.at 42; Ryan, supra note 2, at 380.

[35]Ryan, supra note 2, at 380–81.

[36] Id. at 383.

[37] See Camacho, supra note 30, at 279, 295, & 300; John R. Nolon, Champions of Change: Reinventing Democracy Through Land Law Reform, 30 Harv. Envtl. L. Rev. 1, 32–34. (2006).

[38] Camacho, supra note 30, at 292.

[39] Sullivan & Richter, supra note 3, at 460.

[40] See Mark Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 N.D. L. Rev. 161, 162 (1989).

[41] Id. at 163.

[42] Leonard Riskin, Mediation and Lawyers, in Goldberg, Rogers & Cole, supra note 20, at 153–54.

[43] There is a lack of empirical studies either providing rates of disputes or disputing the claim that they are high in number.

[44] Wayne D. Brazil, Should Court-Sponsored ADR Survive?, 21 Ohio St. J. on Disp. Resol. 241, 242–43 (2006).

[45] Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. Rev. 1, 34 (1997).

[46] Id. at 2.

[47] Id. at 7.

[48] Id. at 66.

[49] Association for Conflict Resolution, Best Practices for Government Agencies: Guidelines for Using Collaborative Agreement-Seeking Processes (1997), available at http://acrnet.org/acrlibrary/more.php?id=13_0_1_0_M (last visited Feb. 19, 2007).

[50] Id.

[51] Id.

[52] Id.

[53] U.S. Const. amend. V.

[54] Daniel R. Mandelker, Model Legislation for Land Use Decisions, 35 Urb. Law. 635, 655 (2003).

[55] See Joan Ockman, Introduction, in Out of Ground Zero: Case Studies in Urban Reinvention 15–17 (Joan Ockman, ed., 2002).

[56] See generally Max Page, Creatively Destroying New York: Fantasies, Premonitions, and Realities in The Provisional City, in Out of Ground Zero, supra note 87, at 166–83.

[57] David W. Dunlap, Stage is Set to Rebuild Ground Zero, Board Says, N.Y. Times, June 3, 2004, at B3.

[58] David W. Dunlap, Development Agency is Nearly Finished, but its Business Isn't, N.Y. Times, Aug. 10, 2006, at B2.

[59] See id.

[60] George James, Mediation Ordered in Trade Center Suit, N.Y. Times, Jul. 22, 2004, at B4 (mediation ordered in a federal lawsuit over architect's fees).

[61] Patricia A. Stokowski, Riches and Regrets: Betting on Gambling in Two Colorado Mountain Towns 13 (1996).

[62] Id. at 94.

[63] Id.

[64] Id. at 94–95.

[65] See id. at 289–290.

[66] Id. at 290.

[67] Id.at 95.

[68] Matt Arbaugh, Making Peace the Old Fashioned Way: Infusing Traditional Tribal Practices into Modern ADR, 2 Pepp. Disp. Resol. L.J. 303, 317 (2002).

[69] Laura Nader & Jay Ou, Idealization and Power: Legality and Tradition in Native American Law, 23 Okla. City U. L. Rev. 13, 28 (1998).

[70] Kate Shatzkin, A Historic Day for Puyallup Tribe: $162 Million Settlement Applauded, Denounced After Signing Ceremony, Seattle Times, Mar. 25, 1990, at A1.

[71] Id.

[72] Id.

[73] George Hardeen, Tribe to Sign Land Settlement Pact, L.A. Times, Mar. 24, 1990, at A2.

[74] Arbaugh, supra note 68, at 318.

[75] Id.

[76] Dan Baum, Letter from New Orleans: The Lost Year, The New Yorker, Aug. 21, 2006, at 44, 46.

[77] Id. at 47.

[78] Id.

[79] Id. at 54–55.

[80] See generally Owen Fiss, Against Settlement, 93 Yale L.J. 1073 (1984).

[81] See Camacho, supra note 30, at 272–73.

[82] Association for Conflict Resolution, Uniform Mediation Act Information (2006), available at http://www.acrnet.org/uma/index.htm (last visited Feb. 19, 2007).

[83] Unif. Mediation Act § 3 (2001), available at http://www.law.upenn.edu/bll/ulc/mediat/uma2001.pdf (last visited Feb. 19, 2007).

[84] Society of Professionals in Dispute Resolution, Report of the SPIDR Commission on Qualifications, in Goldberg, Rogers & Cole, supra note 20, at 170–71.

[85] Model Standards, supra note 21.

[86] Maryland has created an Office of People's Counsel in five counties—Baltimore, Hartford, Howard, Montgomery, and Prince George's. Nicole M. Lacoste, A Growing Resource: People's Counsel, Md. B.J., Sept.–Oct. 2006, at 25.

[87] Id.

[88] Id.

[89] See Andrea F. Siegel, People's Counsel Plan Drafted, Balt. Sun (Arundel Ed.), Sept. 19, 1994, at 1B.

[90] Laura Barnhardt, Loyola Center Arguments Heard: Residents Oppose College's Plan to Build Spiritual Retreat in Area Zoned for Agriculture, Balt. Sun, Apr. 21, 2006, at 3B.

[91] Lacoste, supra note 86, at 28. There is also some indication that informal zoning mediation is being undertaken by local Maryland People's Counsel, regardless of the formal program parameters. Siegel, supra note 89.

[92] Siegel, supra note 89.