Consulting Practice of Richard S. Alper, J.D.

• Alternative Dispute Resolution

Richard Alper has over thirty years of experience in land development, land use, and commercial real estate transactions. Over the last fifteen years, he has also mediated and facilitated 150 disputes.

As an attorney working for Prince Georges County, Mr. Alper successfully represented the County in federal district court in complex, multi-party, long-term, water pollution, sludge disposal, and solid waste cases involving all levels of government. He also served as Counsel on comprehensive planning, zoning map, legislative amendment, and water and sewer policy issues.

While in private practice, among other projects, Mr. Alper drafted and negotiated a joint development agreement for construction of a mixed use project over an Atlanta, Georgia metro site; negotiated with Montgomery and Prince Georges County, Maryland officials on zoning, building, and fire code issues for a large condominium conversion; and handled multiple aspects of the sale of several industrial lots in Laurel, Md. to a Fortune 500 Company. In the latter matter, he analyzed issues related to bonding, road permitting, oil contamination of soil, wetlands site assessment, pollution liability insurance, and establishment of a contingency reserve.

Mr. Alper brings to bear his real-world experience in alternative dispute resolution efforts related to state and local land-use and other environmental issues.

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ADR stands for alternative (or appropriate) dispute resolution. This phrase brings to mind a spectrum of processes from arbitration -- where a third party renders a binding decision -- through facilitation and mediation -- where a third-party neutral has no decision making authority but assists the parties through dialogue toward a mutual exchange of perspectives and learning. Sometimes ADR takes the form of a one-on-one tutorial on conflict management skills and options for an individual participant in a conflict. Other processes include early neutral evaluation, mediation/arbitration, and conflict advocacy.

The core of these processes is listening to the parties; understanding their individual situation, perspective and issues; assisting them in understanding and recognizing their interests, needs and values; and in discussing their negotiating strategy and goals in the context of the conflict. After helping the parties to generate options that would meet their collective needs and interests, the third party neutral then tries to test and to narrow the options with the help of the participants. If agreement is reached, the third party typically assists the parties to reduce their proposed resolution to writing in clear and practical terms. The needs and interests of the parties usually include economic, reputational, relational, value-based, and environmental concerns. No party is bound by an agreement until it is signed by the opposing parties.

The role of the mediator or facilitator is to serve as a "process guide" for the conflict experienced by the parties. As Frank Sanders, a dean of the field of ADR, once stated, the mediator must "fit the form to the fuss." Therefore, a skilled mediator employs a variety of tools and processes to help the parties through their conflict toward a partial or complete resolution. Depending upon the type of conflict, including the complexity of the issues and the number of parties, the neutral party may use ground rules, caucuses, graphics and flip charts, hypothetical questions, field trips, steering committees, joint expert panels, subcommittees and exercises to help the parties move forward.

Mediation requires the use of a trained, skilled neutral party who can keep the opposing parties focused, who can assist them in communicating their concerns, and who can help them to explore possible solutions and thereby avoid or minimize the expense and effort involved in litigating their disputes.

A successful mediator looks for opportunities to create win-win solutions. If such solutions are to be found, the neutral person must encourage each party to present his or her views in a manner that stimulates a fair exchange of perceptions and highlights tradeoffs that might be essential to bring about a mutually satisfactory resolution.

In ADR, the mediator respectfully probes the arguments set forth by each side. Since the mediator is not a stakeholder or a decision-maker, he or she has no vested interest in the outcome. As a result, the mediator may serve both as a sounding board and as someone who can fairly assess the "big picture," while trying to help each side reach an equitable outcome. In ADR, the mediator is prohibited by law from disclosing information or statements provided in confidence by any participant.

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Studies funded by the Hewlett Foundation and the United States Institute for Environmental Conflict Resolution show that participants in ADR report multiple, sometimes alternative levels of satisfaction with ADR processes. For example, some report:

• substantially increased levels of understanding of the other parties' points of view;
• significantly increased levels of understanding of the data, research, technology, information and issues that are central, or at least relevant, to the decision making process;
• improved relationships with, and access to, other parties and their constituent groups;
• satisfaction that their voices were heard and their views were considered, even if the agreements reached were less than optimal from the perspective of any individual participant;
• with regard to the substantive outcomes, the agreements reached tend to be more practical, sustainable, and adhered to, owing to the participatory processes through which they were developed; and
• opinions about substantive outcomes vary from "mixed" or "adequate" to "outstanding" or "remarkable," depending on many factors, including the complexity of the issues, the length of the process, the skill of the mediator, and the attitude and commitment of the parties to participate and to collaborate.

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• In a three-party water dispute involving a developer, a residential community, and a private school, Mr. Alper mediated and drafted a water sharing and cooperation agreement regarding water taps, lawn watering and school consumption of water. Eight years later, due to changing conditions, the parties are cooperating to modify and extend their prior agreements.
• Mr Alper led a team of facilitators to establish a consensus building process among businesses, residents, neighborhood associations, and the local government planning agency to revitalize the northern commercial section of Bethesda, Maryland (i.e., the Woodmont Triangle). To accomplish this end, the facilitators conducted eight meetings with approximately thirty participants. In light of the outcome, the American Institute of Architects issued an award to the government planning agency for its high quality public participation processes that resulted in consensus-based planning and zoning amendments for Bethesda's central business district.
• Mr. Alper conducted an assessment and report in which seventy-five stakeholders were interviewed about their concerns related to the designation of the Patuxent River as a Wild and Scenic River under applicable federal legislation. The participants included the U.S. Natural Resource Conservation Service, numerous State agencies, the U.S. Department of Interior, the Army Corps of Engineers, trade associations, watermen, fisherman, boaters, farmers, residents, and environmentalists. A series of meetings with the stakeholder groups in 2004 led the co-facilitators to inform the State sponsoring agency that there was a low probability of reaching a consensus solution on designation. This realistic and candid assessment saved the State tens of thousands of dollars in a lengthy, costly collaborative process that had poor prospects for success. A significant stakeholder group has continued to oppose the wild and scenic river designation, so the State agency and the Patuxent River Commission have continued to follow this "no go" recommendation since 2004.
• Mr. Alper co-facilitated a dispute concerning the planned relocation of a major thoroughfare in the central business district of Burtonsville, Maryland. The proposed relocation would have adversely affected dozens of businesses located adjacent to the existing roadway. The projected impacts included significant changes in commercial frontage along the road, business signage, customer access, and stormwater management.
  The collaborative process was designed and conducted in coordination with the local government planning agency. There were ten public meetings with approximately thirty regular participants representing many small locally-owned businesses, some national chain stores, a citizen's association, an environmental non-profit, and City, County, and State agency representatives.
  The ADR process resulted in several favorable outcomes for the business community. The road relocation was deferred for over one year to allow the businesses time to prepare for the change; and the County agreed to provide financial assistance for business revitalization and to improve road signage to clarify for vehicular traffic the direction and location of the central business district, thus benefiting many local businesses.
• Mr. Alper mediated a business dispute involving a large, multi-generational family that owned and operated a multi-million dollar solid waste collection, transport and disposal business. Issues of control, succession, authority for day-to-day operations, strategic direction, and compensation were largely resolved through ADR in this case, thereby resulting in dismissal of the intra-family lawsuit.
• Mr. Alper co-facilitated a public policy consensus process concerning "infill" (i.e., "McMansions") and intensified residential use in a highly urbanized area. The team of skilled facilitators designed and debriefed twelve public meetings attended by twenty regular stakeholders; and worked with a steering committee and the local planning agency between public meetings. Consensus was reached on a number of central issues. On others, the scope of the conflict was substantially narrowed. This successful outcome resulted in the introduction of legislation. A legislative commendation on public record was provided to the team of facilitators.

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• United States District Court for the District of Columbia
• Seventh Judicial Circuit, Montgomery County, MD
• District Court, Montgomery County, MD
• District Court, Prince George's County, MD
• Human Relations Commission, Montgomery County, MD
• Common Ownership Communities Commission of Montgomery County
• MD Department of Natural Resources
• University of Maryland
• MD National Capital Park and Planning Commission
• MD Department of Planning
• District of Columbia Board of Education

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• MD Department of Natural Resources, Water Resources Leadership Institute
• MD National Capital Park and Planning Commission
• Montgomery College
• College of Southern Maryland, MD Center for Environmental Training
• University of Maryland, Academy for Excellence in Local Governance
• City of Rockville, MD Planning Department
• U.S. Department of Health and Human Services; Commission on Americans with Disabilities

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• Catholic University Law School
• University of Baltimore Law School
• George Meany Center for the Study of Labor Relations
• Johns Hopkins University School of Business
• Institute for Conflict Analysis and Resolution, George Mason University
• Association for Conflict Resolution, Annual Conference
• National Conference for Peace and Conflict Resolution
• Conflict Resolution Center of Montgomery County, MD
• Middle Atlantic Facilitator's Network
• Maryland Mediation and Conflict Resolution Organization (MACRO)

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