When will the media ever learn? Mutually assured political destruction isn't a convincing threat.

In the January 8, 2012 New York Times, columnist and University of Chicago Professor Richard Thaler chides the US Congress and President Obama for not understanding the art of bargaining. He suggests that they read Tom Schelling's Essay on Bargaining. Therein lies the problem. The press (and media in general) have absolutely no idea of how to interpret what's going on when negotiations are unfolding, and Shelling's bargaining model, developed to explain cold war nuclear politics and the logic of Mutually Assured Destruction, won't help at all.

There are two ways to think about conflicts and conflict resolution efforts. The first assumes that there has to be a winner and a loser -- that the gains to one side must be matched by losses to the other. This is how zero-sum thinking emerged. But, there's another way to think about negotiations, whether between countries, companies, communities or other actors. This involves non-zero sum thinking, or mutual gains. This requires thinking in terms of how each side does in each negotiation relative to its realistic walk-away option (not to what the other side does or doesn't get). Both sides can come out ahead compared to their realistic walk-away options. If two bordering countries are fighting about how much water each can take from the river, then, in zero-sum terms, what one gets the other loses. But, if they can figure out how to work together so that one country can use the water for what it needs (to support provide drinking water to a growing urban population) and then send it along to the other country (assuming the appropriate technology and management systems can be installed), the other can then use almost all the same water over again for a different purpose (such as expanded agricultural production). The issue is not whether one side wins by depriving the other of the water it needs; rather, the question is whether they are smart enough to think of a way that gives both sides the water they need to meet their most important requirements.

When I look at the current political situation in Washington, I don't see any effort being made to help both "sides" meet their interests simultaneously. I'm not talking about bi-partisanship or "playing nice." I understand that politicians in both political parties are mostly interested in getting re-elected and expanding their party's control of Congress and the Executive branch. But, each side also has to meet the interests of its constituents if they want to get elected. That's why negative advertising isn't enough. Each party and each candidate also has to prove that it can and will meet the interests of its constituents.

If I'm on one side of the aisle, and I can offer a way to the other side of meeting the needs of its constituents while also meeting the needs of my backers, I'm likely to have a winning proposal. That doesn't involve compromise. It's not about splitting the difference and showing that I care about the country in general. It's not about the use threats to exact concessions from the other side. I just have to be smart enough to come up with a package that is "good for them, and great for me."

Thaler urges Obama to threaten Congress with substantial "pain" in the future when the President will be in a position (at least for a short time) to block the extension of the payroll tax. He suggests trading a promise to inflict less pain in the future for concessions from the Republicans now. But, if I'm on the Republican side, that's not compelling. I'll just wait out the electoral process and take what I want when I win big majorities in the House and Senate (and win the Presidency). Or, so the Republicans think. There's no reason for them not to be optimistic. When it comes to what we want, we are all able to convince ourselves that the future will be especially good for us. We don't care about what happened in the past. We're terribly biased in our own favor when thinking about what might happen in the future.

Thaler suggests that the Republicans ought to give President Obama a chance, for at least a year, to appoint the people he wants in key posts. Otherwise, Thaler says, when the Republicans win the elections they'll have to deal with nothing but Democratic holds on all of their proposed judicial and agency appointments. Schelling really believes that threats of mutually assured destruction in the future will be sufficient to get both sides to behave reasonably in the present. I'm not so sure. Wouldn't it be better to come up with a proposal that doesn't require either side to make concessions in the present and doesn't hinge on threats about the future? Non-zero sum thinking offers such an option.

Thus, President Obama is still hoping that he can get the Republicans to buy a grand bargain. This would allow them to meet their stated interests (i.e. reduce the federal budget deficit dramatically over the next decade, scale-back government support for Social Security and other "social welfare" programs, allow the states to assume more responsibility for a wide range of governmental activities, and implement tax reforms that reduce the burden on wealthy individuals and corporations in the hope that this will spur job creation). In return, the President hopes to be able to achieve a number of his (Party's) stated interests (i.e. increase short-term public investment in infrastructure and job creation, protect the poorest of the poor and implement reforms in social welfare programs that will put them on a sound, long-term financial footing; implement the next phase of universal health insurance and reforms in health care that will bring costs under control, reduce defense spending and end the war in Afghanistan, and impose regulations, and consumer protection guidelines, that will avoid another financial meltdown). It is actually quite possible to do both sets of things. It will take enormous pressure, of course, from voters on both parties to get their legislators to see that they can achieve their most important interests now while the other side achieves its most important objectives as well.

The media are focused only on keeping score. Who's winning? Everything is framed in zero-sum terms, as if that is the only possibility. Framing everything as a battle allows them to grab eyeballs and sell advertising. If they ever had an educative objective -- to let people know what's happening so they can make choices for themselves -- they've long since abandoned it. Now they are in a fight for their economic survival. In that context, increased partisanship and the reframing of every issue as an ideological battle seems the only way to go.

Shifting the public discourse to a non-zero sum format is going to require a grass-roots effort. The shift will have to be the story, or we won't get any media help. Lots of people, in every walk of life, will have to put forward ideas about mutually advantageous "deals" or "packages" that they, and people like them, can and will support. Imagine an avalanche of letters to the editor, calls to talk shows, and on-line commentary that doesn't require taking sides or ridiculing the beliefs of others? Instead, those interested in what's happening in their lives would offer hundreds of ingenious proposals demonstrating (1) they understand and can restate the interests of both sides; (2) they accept the legitimacy of both points of view even if they favor one side; (3) they are smart enough to think of deals that are better for both sides then what we are likely to get if increasing partisanship and zero-sum thinking continue to dominate. Instead of calling for bi-partisanship or less political sniping, they would fill the airwaves and the internet with proposals that would do a pretty good job of meeting interests on all sides.

I'd also like to see philanthropic organizations offer huge rewards or prizes for political proposals that lead to the passage or adoption of mutually advantageous ways of resolving our current political disagreements. These should exceed powerball payoffs! Let's get the competition going. We've had numerous bipartisan commissions, and they have put forward lots of interesting ideas, but without vocal public support (in the form of pressure on legislators from their own constituents), bipartisan ideas are not enough. Legislators have to hear from their partisan supporters that various proposed deals are "good enough" and probably offer more in the short term (better than what is likely to emerge from endless partisan bickering).

Wouldn't it be amazing, during this year of presidential elections, to see candidates advocating for mutually beneficial policies? Imagine both Republicans and Democrats arguing for ways of meeting their constituents concerns by also meeting interests on the other side. Again, this wouldn't involve comprise. No spirit of bipartisanship would have to overtake everyone. What I'm suggesting is that Schelling's idea of using threats to "win" in the short-term by promising mutually assured destruction in the long-term if the other side doesn't cooperate, is the wrong way to go. Let's use our ingenuity, and construct surprising packages that help all sides meet their most important interests while meeting the interests on the other side as well.

Deliberating vs. Deciding in a Public Disputes Context

There still seems to be a big gap between the “deliberation crowd” and “the public dispute resolution crowd.” The deliberation folks (like the fine group called the National Coalition for Dialogue and Deliberation) is betting that people will learn to be more tolerant of contrary views, and maybe even change their own views on controversial topics, by taking part is well-structured dialogues. The public dispute resolution people (including the public policy section of the Association for Conflict Resolution) are more worried about generating agreements than they are about changing anyone’s mind. While the two groups pursue slightly different objectives, and emphasize different methods, we need for them to combine forces if we are ever going to make progress on the vexing public disputes that have tied us up in knots.

The means and ends of deliberation

Imagine trying to bring together people who are passionately committed, one way or the other, on questions like gun control, abortion or climate change. What’s the best outcome you can imagine? In my view, we’d like them to listen more carefully to the views of their opponents and think hard about ways in which they might find common cause in spite of their disagreements. So, both sides could probably agree that steps should be taken to be reduce the number of children wounded or killed accidentally by gun accidents, or that poor women should have better access to pre-natal care, or that the elderly living in un-air conditioned public housing units might have access to cooling centers when the temperature goes about 95 degrees for days in a row. If groups with opposing views can find ways to work together to achieve an objective they share, the individuals involved tend to stop “demonizing” each other (i.e. thinking the worst about a category of people who they don’t even know). The kinds of dialogues that get people to listen, and maybe empathize even when they disagree, don’t take place at a public hearing or in front of a tv camera. People of good will need time to get to know each other and hear each other out. Facilitators in such situations know how to set and enforce pretty simple ground rules that promise everyone a safe environment. The ultimate goal is to reconcile the parties, not for one side to convert others to their view.

The means and ends of public dispute resolution

When public agencies have to make decisions -- like granting a casino license, allowing an historical building to be cleared away, or deciding whether or not to allow a new power plan to be built in a particular location – people with strongly held views want to participate. They don’t just want to be heard, they want to play a role in the decision. The best way to do this is to invite representatives of key stakeholder groups, chosen by those groups, to see if they can negotiate an agreement. If they can, their recommendations will usually be taken quite seriously by the officials who have to take action. In the public arena, many such problem-solving efforts need to be preceded by extensive joint fact finding (so the parties have a common pool of useful information). Mediators know how to help elected and appointed officials identify and convene all the relevant stakeholders, work with these groups to formulate shared ground rules and gather useful information, generate proposals that offers an outcome better for all sides than no agreement, and assist the parties in producing a signed agreement that officials can implement. The goal is to use informal problem-solving methods to supplement the usual administrative procedures and avoid costly and time-consuming litigation (that sets no useful precedent).

Why the two need to be more intimately connected

Getting concerned citizens together to achieve a better understanding of other peoples’ views is no small task. But, it isn’t enough. Our democratic commitments go beyond giving everyone two minutes at a microphone. The public wants a chance to participate in actual decision-making. How can we accomplish this when outspoken individuals with extreme views tend to dominate? We can supplement the basic mechanisms of representative democracy with informal problem-solving that seeks to generate consensus proposals. These will guarantee officials that if they accept what is recommended, almost everyone in the community will stand up and cheer. And, if you think that there is no way of bridging the gap between the “sides” in serious public controversies, you haven’t been paying attention. This is happening all over the world. The key is to involve the relevant groups, not a hodge-podge of outspoken individuals (or even a statistically valid sub-set of residents, who like a jury, who are supposed to think like their peers). The actual stakeholder groups will be needed to legitimize implementation of whatever agreements are reached; so, it is better to have them select representatives at the outset to sit around the table. The ongoing internal dialogue within each group is likely to generate support for a reasonable package if one is produced. Outspoken individuals with strongly held views are not accountable to anyone. Group representatives need to stay in touch with their stakeholders.

Experts on deliberation knows how to manage micro-conversations -- the give-and-take among the people at the table. Problem-solving is more effective if time is invested in building rapport among the participants. Generating empathy and understanding is a good thing, not a bad thing. However, it usually leads to clarity about why and how disagreements have emerged. Dispute resolvers know how to manage the maco-conversation and generate agreement, and not just clarity about the sources of disagreement. That is, they can make sure that officials with the formal authority to decide, convene the right parties in a way that ensures political legitimacy. They also know how to organize joint fact-finding. Reaching agreements that make people feel good, but don’t reflect the technical or scientific realities is dangerous. We need these two groups to team up.

What you can do to help

When public controversies arise in your community, don’t hesitate to suggest that public officials authorize a combination of dialogue and problem-solving. Remind them that won’t be giving up their final decision-making authority. Not only will they be able to take credit for improving the climate for productive public conversations, but they will be putting themselves in a position to take actions that will be applauded by all of their constituents.

When the question comes up about who should participate, tell them to ask a professional mediator to undertaken a stakeholder assessment that will help them map the conflict and ensure appropriate group representation. Allowing the most outspoken individuals a place at the table is counter-productive – they will just continue to sound off. All the relevant stakeholder groups must choose their own representatives, including proxies for hard to represent interests, and have a hand in devising problem-solving ground rules that everyone signs before the problem-solving discussions begin. For more details, see Susskind and Cruikshank, Breaking Robert’s Rules, Oxford University Press, 2006 including revised versions in Spanish, Portuguese, French, Russian, Italian, Chinese, Dutch and Japanese.

Where is Aristotle When We Need Him?!

Aristotle said that wisdom is knowing the right way to do the right thing in a particular circumstance. Barry Schwartz and Kenneth Sharpe have written a wonderful book called Practical Wisdom (Riverhead/Penguin, 2010) that explains what this means. They explore what happens to doctors, lawyers, and bankers as well as teachers, hospital workers and government employees who depend too heavily on rigid rules and financial incentives rather than good judgment to figure out what the right thing to do is in particular situations. And, they raise a great many reasons why we should be worried about contemporary professional education that plays down the importance of empathy.

Schwartz and Sharpe point out that, "It takes wisdom -- practical wisdom -- to translate the very general aims of a practice into concrete action." So, when professional education emphasizes codified theory and analytical methods at the expense of guided explorations of the everyday dilemmas that practitioners are going to face, we make a big mistake. And, likewise, "the rules and incentives that modern institutions rely on in pursuit of efficiency, accountability, profit and good performance can't substitute for practical wisdom. Nor will they encourage it or nurture it. In fact, they often corrode it."

So, how can we help the next generation of practitioners learn what can't be taught, including the empathy it takes to be wise?" First, we need to stop "telling" our students what (we say) are the right answers to every question. They need to discover for themselves which answers "work" and how they can arrive at them. Second, we have to help newcomers learn to categorize and frame situations in productive ways. We can do this by modeling our approach to these tasks -- highlighting the value of carefully thought-out categories (that allow us to assess each situation on its own merits) and the importance of framing situations in ways that take account of conflicting views of reality. Third, we need to underscore the importance of empathy; ensuring as Schwartz and Sharpe say that, reason and emotion are allies rather than enemies. We want our students to trust their intuition and take heed of their emotions, not suppress them. Next, we want our students, through experimentation and feedback, to learn to trust their ability to see patterns and make moral judgments. They have this skill; we need to embellish it. Finally, we want to encourage them to be "system changers." They can do this if we help them to pursue the right objectives for the right reasons. This means talking a lot about what the right thing to do is, and making clear that professional success (especially happiness about our role in the world) is mostly a function of our ability to do the right thing for others.

Winning at Win-Win Negotiation!

I hear the phrase "win-win" all the time. I'm not sure that very many people who use it know what they are talking about. I have a hunch they mistakenly assume that if everyone would just cooperate, then all parties would get what they want. That, of course, is ridiculous. There are almost no negotiations in which everyone can get everything they want. And cooperation or even compromise isn't the issue.

Thinking Clearly About Win-Win

No one should agree to anything in a negotiation that is worse for them than what they are likely to get if no deal is reached. Roger Fisher and Bill Ury made this point thirty years ago in Getting To Yes. First, figure out what no agreement is most likely going to leave you with, try to generate something (a walk-away) that's better than that, but when you are in an actual negotiation don't reject something that's better than your realistic walk-away, even if it won't get you everything you'd like to have. Fisher and Ury called this point of comparison, your Best Alternative to the Negotiated Agreement (BATNA). A win-win negotiation is something that gets all sides an outcome better than their BATNA. It doesn't necessarily get anyone everything that they might want.

Decision analysts (like Howard Raiffa) talk about the same idea in terms of a negotiator's Reservation Price -- the amount that they've decided ahead of time they won't accept "less than" or "pay more than." Putting aside for a moment that BATNAs and Reservation Prices are sometimes hard to estimate or "know" ahead of time, a win-win negotiation can be thought of as a deal in which all sides "gain" relative to their best estimates of their walk-aways.

Entering the Trading Zone

As many negotiation experts have explained, the beginning of a negotiation is hard because the parties all think they know what they want, all think they know what the other side(s) want and have all worked through with their own constituents what they will and won't accept. If they then spend all their time pushing their own objectives, sometimes even exaggerating "what they have to have," and giving arguments in anticipation of what others will say, they probably won't get a deal. On the other hand, they have no choice but to show their "people" that they are trying hard to be victorious. So, there is a lot of wasted motion, a lot of exaggeration and a lot that's done for show. At some point, though, usually behind-the-scenes, each party has to re-assess. "Am I going to be able to get something equal to or better than my walk-away." "I know I can't get everything I have demanded, but a lot of that was made up anyway." Most people think that in a bargaining situation, you have to ask for more than what you really want so that you can make concessions and still end up with your real goal. Of course, that strategy can backfire. If your constituency hears you make outrageous opening demands and then you don't "bring home the bacon," it may not be possible to back down from those demands without losing face. The fact is, that if everyone were being completely honest about their most important interests (i.e. the things that are important to them in rank order), and they

all felt comfortable talking about these items, the negotiators could then engage in productive joint problem-solving to see what sort of trades might (or might not) permit all parties to meet or exceed their realistic walk-aways.

If the opening of a negotiation doesn't alienate all the parties (because one or more sides has taken an absolutely outrageous stand for tactical reasons and did so in an obnoxious way), they can then enter the "trading zone." This is the negotiation space in which parties try out various new ideas and possible trades. "Now that I've heard what's really important to you, what if I gave you X, would you give me Y?" Those kinds of linked offers are the key to creating value. If I have something you want very much and it's not that important to me, and you have something I covet, and it is not crucial to you, when we trade those two things, that creates value. That's not compromise. We can only do this, however, if we can find our way into the trading zone. Fisher and Ury point out that parties have to be willing to engaging in "inventing without committing" for this to happen. There are other procedures that can also be used to make this work. Once in the trading zone, though, the parties have to do all they can to explore numerous "what-if's?" to see if they can create value. Then, once they have created all the value they possibly can, the parties need to go back and see if they can put together a "package" that ensures everyone something above their BATNA or their Reservation Price. The process gets more complicated when values or rights are involved and not just interests, but the same Mutual Gains Approach (MGA) can be used even in those situations.

What If the Parties Haven't Done Their Homework or Aren't Authorized to Make a "Reasonable" Deal?

The key to win-win negotiation is not compromise, it is getting into the trading zone and creating as much value as possible. If all negotiations involved just two parties and those negotiators didn't have to report to anyone, the process would not be that difficult. But, most of the time, negotiators have someone else (often a diverse and fractious constituency) to whom they must report, and to whom they are accountable. This makes moving into the trading zone more difficult.

Think about negotiators who represent their county in a multinational treaty negotiation. Each negotiator spends months talking with different agencies and political actors inside their country, trying to reach a delicate balance on what to stress and what to sacrifice when formal multi-country negotiations begin. Then, when the negotiators sit across from each other in the big hall, each reads the script that they worked out so carefully back home. It doesn't matter if the formal statements that each negotiator gives appear to ignore what previous speakers in the big hall have said. The fact is, that's exactly what's happening. The negotiator is playing to his or her home crowd. Any deviation from the pre-prepared script would probably be cause to drag the negotiator home and demand their resignation. But, at night, at the bar, when the country negotiators chat informally, new packages emerge, and new trades are explored. As the end of the two week formal negotiation period is about to draw to a close, the chair of the session hands out a revised version of the treaty text. This is quite different from the one that countries spent the previous six months reviewing. That earlier version was what they considered when they helped to write their opening speech for the big hall. Now, however, the negotiator has to call "home." (And, in each country home is represented by a different political figure or set of actors.) They have a choice to make (and almost no time to make it). "Do we support the revised version of the treaty that the chair has sprung on the assembly at the last minute?" Yes, or no? There's no time for further revisions, everyone has return flights scheduled in a few hours. Moreover, in an international treaty negotiation, the chair won't ask the parties to vote. Rather, he or she will ask, "Do I hear consensus? Do you support the revised version of the proposed treaty?" It is entirely up to the chair whether he or she "hears" consensus. At the point, the country negotiators have the option of signing the document on their way out their door. Then, each negotiator has to go back to their home legislature and seek ratification (in America's case by a vote of the United States Senate).

Think of the poor negotiator for a country that didn't do its homework ahead of time, or didn't give it's negotiator any room to maneuver. They can't have much impact on the final outcome because they can't participate in the discussion of informal trades. Ideally, a negotiator needs to know what his or her country's most important interests are (and which of many ways of meeting them will be OK). The negotiator may also have instructions to take a strong opening stand, but at the same time be empowered to use whatever informal channels are open to enter the informal trading zone and see what new options can be created. Until the final moments, the negotiator is just exploring "what-if's." When the chair produces the final draft of the proposed treaty, the negotiator needs to know who they can call to get a yes or a no (although they must be able to report that they have found a way to ensure that their country's most important interests have been met).

How Much Can and Should You Do for the Other Side?

There's nothing more frustrating than trying to negotiate with someone who isn't prepared (i.e. doesn't know what their group's interests really are), isn't authorized to enter into informal discussions about ways of creating value, and isn't empowered to commit to anything other than what their group discussed before the negotiations began. If you are sitting at the table (in the big hall) with negotiators who are in one of these three positions, what can and should you do? First, even though it is awfully late in the game, you might encourage the other negotiator to be in touch with his or her group to clarify what their key interests really are. This should take the form of a BATNA or walk-away analysis. ("What are we going to be left with, realistically, if there is no agreement?" Not, what will we demand?) This will help the negotiator avoid the bad mistake of turning down "pretty good" offers. Second, you can construct several "alternative packages" for the negotiator to bring back (quickly) to his or her group. Each should spell out why and how a package will help the group meets in most important interests, and at what cost and with what risks. Third, you can coach the other negotiator a bit, teasing out for them what they might say to their constituents in response to various criticisms or complaints. Of course, if the negotiation is being managed by a neutral party (a mediator or a facilitator), then any participant can have a private conversation with that individual without having to reveal to any other parties how unprepared they really are (or how mixed up their constituency might be).

So, When Should You Compromise?

No negotiating party should ever accept an agreement that is worse for them than no agreement. But, a group may be very uncertain about how to predict what no agreement really means. ("If we don't reach agreement now, what will happen next and what effects will that have?") So, they might say yes to something that turns out, in retrospect, to be less desirable for them that having said no. But, no negotiator should ever agree to something that knowingly "hurts" their constituency (i.e is worse than what no agreement held in store for them) just to be liked. Good working relationships (and particularly trust) are not achieved by caving in to pressure. Rather, they are a by-product of all sides acting in what Fisher and Ury would call a "principled way." And, I would argue that one principle of negotiation is that no one should ever "give away" their interests in the hope of "buying" a good relationship. All that will do, as Fisher and Ury point out, is teach the other parties that the same behavior be expected in the future.

"Good for You, Great for Me"

So, in actuality, a win-win outcome is one that gets all parties more than what no agreement would have guaranteed them. But, that doesn't mean that all parties "gain the same amount." I might like an agreement because it get's me well above my BATNA. You might grudgingly accept my proposed agreement because it gets you more than what you are likely to get if we reach no agreement at all. Win-win agreements do no promise all sides equal or similar gains. They only promise that all sides -- because they enter into the trading zone, engage in joint problem-solving, and agree to be realistic, even honest, about their highest priority interests -- get an outcome that is better than their most realistic estimate of what they would have ended up with had they walked away with no agreement.

Thus, the way to "win" at "win-win" negotiation is to make sure that you come up with a proposed agreement that is "good" for other side(s) and "great" for you. You can only do this by working hard to uncover and respond to the most important interests of the other parties. Whatever "opening" stand you take (to ensure your "people" that you are fighting hard on their behalf), you have to be able to move from there into the trading zone and function effectively in that "what-iffing" environment. Then, you must have the right mandate from your "side." That is, you need to have worked out ahead of time a clear understanding of your group's priority interests. And, you need to know who you can call for authorization to enter into an anticipated agreement at the last minute as long as the package exceeds your group's realistic estimate of what no agreement means to them.

Is it Time to Move the Field of Public Dispute Resolution in a New Direction?

PRESENTATION TO THE ASSOCIATION OF CONFLICT RESOLUTION/ENVIRONMENTAL AND PUBLIC POLICY SECTION CONFERENCE: SEEKING SUSTAINABILITY THROUGH COLLABORATIVE GOVERNANCE

JUNE 28 – 30, 2011 IN PORTLAND, OREGON

Opening Plenary: "Is it Time to Move the Field in a New Direction?"

For more than 30 years, the field of environmental dispute resolution (or public policy dispute resolution) has operated on three premises: (1) government (federal, state and local) will eventually mandate mediation and other forms of collaborative problem-solving and that these will come to dominate the ways in which administrative actions of government are handled; (2) if we can create a sufficient supply of qualified mediators, supply will drive the demand for our services; and (3) (highly visible) successes will make the case for our services and demonstrate the value-added when professional neutrals are involved.

Getting government to mandate the use of our services:

In the beginning there was ACUS – the Administrative Conference of the United States. It doesn’t exist any more, but for a period, Assistant Secretary-level appointees from all the federal agencies plus more than a dozen Presidential appointees tried to find ways of enhancing the effective operation of government. They (with help from Phil Harter) pushed for negotiated rule-making. EPA and other agencies experimented with the idea and eventually convinced Congress to pass the Administrative Dispute Resolution Act in the early 1990s.

We were sure that subsequent efforts to draft complicated regulations (and avoid the delay of litigation) would involve negotiated rulemaking assisted by trained mediators listed on the roster prepared by the US Institute for Environmental Conflict Resolution. We were also convinced that negotiated rule-making would convince federal agencies to use professional neutrals in a broad range of policy-making and administrative activities. While EPA’s negotiated rulemaking efforts have grown, the broader shifts we had hoped for, did not occur.

With help from a foundation created especially to advance public dispute resolution, we created State Offices of Mediation in almost two dozen states. We thought that once the Governors acknowledged how valuable mediators could be to the resolution of complex public policy disputes, states would create rosters of qualified neutrals and use them to handle all kinds of public disputes. We helped states like Connecticut, Montana, and Maine adopt statutes encouraging the use of mediation in all kinds of local land use disputes. In a number of states, we tried writing into standard state zoning enabling acts provisions for the use of mediation to resolve difficult land use disputes.

I think these were all worthwhile efforts, and they did legitimize environmental and public policy dispute resolution, but they didn’t create the widespread demand for our services that we anticipated.

Building the Supply of Qualified Neutrals

We went along with efforts in a great many states to implement 40-hour “courses” aimed at ensuring consumers and public agencies that professional neutrals are, indeed, qualified. [Although these were never specifically geared to testing the ability of public and environmental dispute resolvers in particular.]

We worked with USIECR and state courts to create rosters that would ensure public agencies that they could have immediate access to a cadre of qualified neutrals with appropriate background and training. The growth of public dispute resolution efforts never took off in the way we imagined it might (even though the state offices in California and a few other places are going strong).

We started to offer training – a staple of a great many dispute resolution companies – to build the supply of “qualified mediators.” We worked first through SPIDR, then ACR and with the Special Committee of the ABA to ensure that short workshops are available a few times a year to public and environmental dispute resolvers.

We teach negotiation and dispute resolution to planners and other public policy degree candidates at schools like Portland State and MIT. In fact, most urban planning departments offer at least one course on negotiation and dispute resolution. We thought this would create an “informed demand” on the part of future public agency staff for our services. Unfortunately, that has not happened.

Publicize Our Successes

We wrote articles and books, organized data bases to store carefully documented case studies, initiated statistical analyses, and contributed newsletters and newspaper pieces highlighting our success stories. The bibliography is lengthy, but the strategy of publicizing our successes didn’t work as planned to generate widespread demand for our services.

We’ve built web pages, given presentations, and spoken at, I dare say, hundreds, if not thousands of conferences. We've given talks to thousands of public officials, community activists, business leaders and other influential -- all on the premise that once we shared our successes, the floodgates would open. Unfortunately, that has not happened.

Let’s take stock.

I’m glad we did all these things. I think all three premises were reasonable. But, they haven’t worked to build the field at the pace that many of the early practitioners hoped.

We haven’t seen a dramatic increase in the number of environmental and public dispute resolution firms. The same fifteen or so firms and twenty or so solo providers are still getting the lion's share of the work. I know that the number of names on the USIECR has grown, but overall, the size of the field has remained relatively stable.

I did a survey a few years back that was published in Negotiation Journal. At that time, public and environmental dispute resolution was a $30 - $50 million or more a year industry in the United States (depending on what was counted). By now, it ought to be at least two or three times that large if our three strategies had worked.

If just 10 federal agencies were spending at least $3 million a year on dispute resolution contracts of all kinds, 50 states were sending an average of $1 million a year and the 140 large cities in the United States were each spending $250,000 a year, that would account for well over $100 million in contracts.

Time for a shift in strategy

Those of us who have been in leadership roles for several decades (as the heads of for-profit and not-for-profit companies providing dispute resolution services in the public sector, federal and state office staff, trainers and teachers, and ACR committee members) – and you know who you are -- probably need to step aside. I’m not saying we shouldn’t continue to be active, but we should let the next generation of EPP leaders step up.

I think we have played out the string on our three-pronged strategy. It is time for new leadership to pursue a more entrepreneurial approach to growing the field. Here are four ideas that some of the younger (by which I mean under 40!) public and environmental dispute resolution professionals in the crowd might want to jump on. It’s my sense that the next generation will be more comfortable with the shifts in strategy I am proposing.

1. We’ve got to pay more attention to the idea of private sector clients paying for neutral services.

2. We’ve got to try harder to get neutral services written into the general funds budget of every public agency in the same way that money to cover lawyers and legal charges are financed.

3. We should play up the mystery of mediation (rather than trying to de-emphasize the specialized skills involved) and play up the importance of “advanced certification.”

4. We have to commit a lot more money and time to “marketing the field.” This means distinguishing neutral services from other kinds of public engagement consulting, and then learning how to sell both.

Private sector clients paying for neutral services

Those of us of a certain age are still squeamish about working for private or corporate clients. But, if we can be neutral and be paid by government, we can be neutral and be paid by private clients. As more and more infrastructure and development is financed (and managed) by private capital, we’ve got to be willing to facilitate the stakeholder engagement processes that these development proponents are already committed to financing.

Stakeholder engagement – a branch of corporate social responsibility – ought to be the source of more than half of the funds used to underwrite neutral services in the United States. And, I am, in fact, talking about neutral services and not just public engagement consulting. Our neutrality is what the private sector is most willing to pay for.

By moving the funds allocated by one "side" to support a multiparty stakeholder committee, we can blunt the charge that we are working for the funder. We can serve as neutrals and work for all the participants in complex multi-party, multi-issue dispute resolution efforts. Even if the money to pay us originates from one source, once it is transferred to a fund or an executive committee managed jointly by all the parties, we can work for “the process,” not for the funder.

Instead of trying to convince regulators to hire us, we should shift a least some of our attention to proponents of any and all new development. They are the ones with the primary interest in making sure we can use our neutral standing to produce a meaningful consensus.

Get written into the legal services budget of every public and not-for-profit agency

How many of you know what IOLTA stands for? Interest on Lawyers Trust Accounts. Lawyers who receive interest on funds they are holding from or for their clients, must keep these accounts separate. That interest is used to support not-for-profit legal aid providers. This comes to more than $130 million a year. Between 1991 and 2003, IOLTA funds totaled more than $1.5 billion.

What if there were an analogous set-aside to support environmental and public dispute resolution efforts?

Courts could require all environmental penalties to go into a national (or a state) trust fund to support environmental dispute resolution. There is a great precedent for this. In Virginia many years ago the court mandated that the penalties in the Kepone case be used to support an environmental improvement fund in Virginia. These funds have been used to support public dispute resolution efforts.

There might be a requirement that some small percentage of all funds appropriated to support public infrastructure be set aside to support a dispute resolution trust fund.

A tiny fraction of the interest on all administrative (i.e. licensing or permitting) fees collected by federal, state and local agencies could be directed to such a fund. We need the equivalent of an IOLTA fund to support public dispute resolution work. We shouldn’t have to fight to add an extra line to public infrastructure development projects again and again.

I hope that ACR or the Public Disputes Section decides to pursue this.

The importance of “advanced certification”

For many years, I’ve argued that further credentialization in the dispute resolution field would be a mistake. Back then, we needed to let a thousand flowers bloom while the field was developing. (N.B. And, I don’t agree with Peter Adler. We are not a discipline, we are a field, or a sub-field.)

By now, the field has developed. We need to push for advanced certification of professional neutrals in the environmental and public policy dispute resolution field – not to keep others out, but to ensure the world-at-large we know what we are doing. The USIECR roster continues to add people with limited experience as professional neutrals. I’m fine with that, but I would like to see a separate (advanced) category of neutrals (not trainers, not public engagement consultants) with substantial experience.

I hope that ACR and the EPP Section move forward with an advanced certification program that takes account of years of service in the field (at least seven?) , accumulation of continuing education credits on an annual basis (which ACR-EPP would have to organize in the way that the law and other fields do), and peer recognition (to be certified, advanced practitioners would have to submit letters from at least five others who already have that designation and who would be willing to attest to the performance of new applicants).

It won’t be easy to work this out. And, there will be a tendency to use it to keep others out of the guild, but I think we should take the risk. I’m not proposing an exam of any kind (because I don’t think a written exam begins to measure the relevant competence and experience). And, I don’t think there should be a cap on the number of people who can be credentialed.

Perhaps USIECR (which keeps the most important national roster of professional neutrals) could be part of this.

Marketing the field

Everybody’s got a web page. Everybody’s on Facebook. A few people are tweeting about this talk as I give it. Individual practitioners and dispute resolution companies know that they can’t ignore social marketing. Yet, this doesn’t help the world-at-large understand what our field does or why our services add value in most public sector settings.

Someone has got to take responsibility for marketing our sub-field on a continuing basis.

The legal profession has a frightening array of TV shows that does its work for them. We have nothing (and don’t tell me about Fairly Legal – the TV show that aired last year and set back the mediation profession by several decades because it failed to take account of even the most basic ethical standards ). Anyway, I’m not arguing for a TV show. WPP-ACR and a private network of public and environmental dispute resolution practitioners can think of better ways to make an impact.

If the 500 or so people who think of themselves as environmental and public dispute resolvers in America paid $100 a year into a fund, that $50,000 could be used for a range of public relations efforts (like one minute mini-cases of successful public dispute resolution on national public radio every day). I know that some money has been spent to market the field in the past, but I’m not convinced we tapped the professional expertise of the same public relations companies that help major corporations have the impact they do!

All of us have to take some responsibility for helping to market the field (not just ourselves) if we want to grow the demand for our services over time.

I want to end by re-emphasizing the point I made earlier. It is time for those of us who have been the most active in the field for two or three decades to step aside and unleash the entrepreneurial energy of the next generation of environmental and public dispute resolution professionals. Again, I’m not saying we can’t help, but we should allow the next generation of public dispute resolution professionals to move the field in new directions.

More Water Diplomacy

Thirty-one senior water professionals from 17 countries attended the recent Water Diplomacy Workshop sponsored by Tufts University and MIT. We heard about cross-border water disputes happening all over the world -- conflicts not just between countries, but between parts of the same country. [Stories about all these disputes will soon be available in something called the Aquapedia -- a global wiki that invites everyone involved in water disputes to describe them using a simple pre-made, easy-to-complete template. The hope is that ideas and lessons gathered in one place will be helpful elsewhere.]

There's a lot written about water management, mostly from an engineering perspective. There's not so much written from a negotiation standpoint. And, there's precious little that merges the two. The Water Diplomacy Framework begins with a series of assumptions about societal, political and natural forces including water supply, water demand, the costs of new infrastructure, levels of economic development, governance arrangements, cultural norms, and public participation traditions. The Workshop teaches the participants to anticipate the complex interactions among these “nodes” using tailored role-play simulations.

Four key assumptions were at the heart of the train-the-trainer program (that will be offered again in June 2012):

Water is a not a fixed resource: Traditionally, water has been managed as if it were a fixed or a scarce resource -- allocating gains to some and losses to others. But when viewed properly, water can be an expandable resource, it can even be the key to peace-building rather than warfare. The key is to pool all available technical knowledge (about desalination or recycling, for instance) and convince the parties to engage in joint problem-solving. Also, virtual water (i.e. water embedded in wasteful methods of agricultural and industrial production) can be managed more creatively to relieve water shortages. Water conflicts are triggered when the parties fail to think about water as an expandable resource.

Water networks are open not closed: Traditional “systems engineering” represents the interconnections among political, social and natural nodes as if they are neatly bounded. This is rarely the case. Also, this approach only works when cause-effect relationships among the nodes are well understood and complexity can be minimized. In most boundary crossing situations, however, water network boundaries are wide open and relationships among the nodes are extremely complex.

Water network management must take account of uncertainty: Resource managers have tried for many years to model water systems. Once they have a model, they make a forecast. However, in the complex world of water networks, there is too much uncertainty to make such forecasts with any confidence. The emergence of climate change, for example, has already altered rainfall patterns, storm intensity and the height of the oceans in completely unpredictable ways. There are tools for managing resources in the face of uncertainty, but these are quite different from the usual modeling and forecasting tools.

The management of water network needs to be adaptive and reflect a “value- creating” approach to negotiation: The Water Diplomacy Framework urges political leaders to ensure that appropriate representatives of all relevant stakeholders are involved in decisions that affect them. Negotiations among these actors should use value- creating techniques rather than positional bargaining. This requires linking decisions about water to other things (like economic development, food production and energy efficiency).

The Water Diplomacy Framework assumes the future is not knowable (or easily estimated). Therefore, a step-by- step approach, including a major investment in monitoring and re-evaluation is required.

If you want to join the Water Diplomacy network, check out www.waterdiplomacy.org. In a few weeks, you’ll be able to interact on line with the participants at the recent Workshop.

Using Cell Phone Voting to Facilitate Group Decision-making

Last week, I was asked by my MIT colleague, Harvey Michaels, and one of my able graduate students, Elena Alshuler, to facilitate a brainstorming session for Duke Energy and business and community leaders from Charlotte, North Carolina. The question was how to get commercial real estate interests to increase energy efficiency in their buildings. Thirty-five participants met at MIT for almost two days. The group included experts in office building management and operations, local stakeholders from Charlotte, Duke energy staff, representatives of not-for-profits involved in energy efficiency and sustainable development and experts in behavioral change.

By the time I arrived in the afternoon of the first day, the crowd has spent many hours in breakout groups focused on three questions: (1) How can the interests of building owners and facility managers be re-aligned to ensure that they have an incentive to promote energy efficiency? (2) How can individual and social behavioral strategies be used to increase energy efficiency awareness, motivation and action among building tenants? and (3) How can various communication channels be used to promote energy efficiency? Five tables with about eight participants each, along with knowledge discussion leaders and a graduate student recorders managed the brainstorming process. My job was to facilitate a consensus-building discussion that could lead to full group agreement on three or four responses to each of the three questions. The earlier discussions at each of the five tables generated as many as a dozen different ideas in response to each of the three questions.

We used cell phone voting to try to reach a full group agreement. And, that's what I want to talk about. We took about 40 minutes to review the many ideas the recorders compiled from each table's suggestions regarding the best way of answering question #1. In fact, the table recorders met during a break at the end of the brainstorming to compile a composite list of suggestions from all the tables in response to each question. So, when I began with question #1, we had a composite list of 10 or so possible responses. I asked someone who favored each one to explain what they had in mind and why. I gave them about 2 minutes to do this. Then, I asked everyone present to use their cell phone to text message their choice of the proposal they supported most strongly. On a large screen behind me, a bar graph instantly revealed the popularity of each idea. I then took the top four vote-getters (there was a clear drop-off after four), and asked everyone to again text their vote for their top two choices among the remaining four. One response was supported by almost 70% of the group supported; two others that had support from about a quarter of the room. I then asked whether anyone would be unable to support that list of three as the whole group's recommendation. I also asked anyone who wanted to hand in a few sentences with key arguments for why they supported their top choice, or offering further clarification of what would actually be required to implement one of the recommendations, to do so.

We then did the same thing for question #2 and then question #3. Each piece of the discussion took about 35 minutes. Each led to a list of three or four priority suggestions that the group as a whole felt it could support unanimously. Then, we took the suggested language handed in by a relatively small number of participants (maybe two or three for each set of recommendations) and prepared a composite text. This was projected on the screen to summarize the recommendations supported by the group in responses to questions #1. We followed the same process for question #2. (We didn't get to complete the text for #3.) In the end, I asked whether the group was willing to endorse the entire package. We had unanimity, although the organizers promised to send everyone the full text for their review within a few days. If anyone had a problem or wanted a change in the full text, the organizers promised to edit the group statement, if possible, to accommodate last minute concerns about how the recommendations were described.

I was impressed with how comfortable the group was using the cell phone voting procedure. The mixture of face-to-face large group discussion (to clarify each item listed on the screen), followed by two rounds of voting (which produced easy to read bar graphs) generated a crisp and meaningful list of recommendations that everyone had a chance to accept or reject. Of course, the fact that the items on each list were generated initially by small group brainstorming, facilitated by technically sophisticated discussion leaders and recorders, made the final discussion that much easier. Also, we started with a group of 35 who had made it their business to learn as much as they could about behavioral strategies for encouraging support for and implementation of energy efficiency measures in commercial buildings. Background papers and reports were sent to participants before hand, and part of the day one was spent listening to well-known national researchers who had a lot to share about relevant national findings.

I can imagine using cell phone voting in a wide range of public meetings. AmericaSpeaks has used keypad voting for facilitate public meetings with thousands of participants. I like the idea of asking people to use their cell phones (no cost to cast votes, by the way, using instant messaging). I also think the mixture of group brainstorming to generate options, followed by large group voting to narrow the options, followed by group discussion during which those passionately committed to particular options can make their case, followed by another round of cell phone voting, followed by projection on a large screen of the polished prose summary of the group agreement (with language contributed by the participants and not just the facilitators) was a success.

I'd love to hear from others who have used cell phone technology to facilitate groups decision-making, particularly in public settings.