Monday, November 10, 2014

What is a Devising Seminar? And how is it being used to address the risks facing Arctic Fisheries?

Arctic sea ice is retreating.  This is creating new opportunities to explore and traverse the Central Arctic Ocean, north of the Arctic Circle.  Some countries, like Russia, are eager to explore for oil and gas in this newly accessible area.  Greenpeace, which is devoting significant resources to protecting the Arctic, is pushing hard for the creation of a permanent sanctuary.  China and South Korea have declared themselves "Arctic Nations" now that their boats can, for at least part of the year, make their way through waters that used to be blocked by ice. Indigenous peoples, like the Inuit in Alaska,
Gwich'in People in Canada and the Saami People in Finland and Russia are worried about the environmental impacts that oil and gas exploration, or just oil and gas shipments might have on fisheries and sea mammals.  Because the area is newly opened, there is no scientific baseline
from which to work regarding the state of the Central Arctic Ocean ecosystems, particularly the fisheries.

The inter-governmental Arctic Council was created in 1996 to promote cooperation among the Arctic states.  It includes Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States. The Council has offered Permanent Participant status and guaranteed consultation rights to Indigenous Peoples in the Arctic region.  Of the 4 million people in the Arctic, approximately 500,000 are indigenous.  The Arctic Circle is a not-for-profit organization that seeks to involve as many civil society groups as possible in collaborative decision-making about the Arctic.  More than 1,000 people participated in its recent annual meeting in Iceland. So, there is an official body and an unofficial body trying to draw attention to the need for more sustainable development and protection of environmental resources in the Arctic.  Unfortunately, the Council has no enforcement powers and existing treaties, like the United Nations Law of the Sea, as well as bilateral fishing agreements in the peripheral portions of the Arctic Ocean, don't guarantee that governmental and non-governmental parties will do the "right thing" when it comes to preserving the extraordinary marine resources of the Central Arctic or protecting the interests of Indigenous Peoples.

Several weeks ago, at Harvard Law School, the Program on Negotiation (PON) (an inter-university consortium committed to improving the theory and practice of negotiation and dispute resolution) organized a two day Devising Seminar, the goal of which was to identify "good ideas" that might infuse formal decision-making by governments, First Peoples, industries and civil society groups whose actions could either doom or protect newly accessible areas of the Arctic.  For several months prior to the meeting, the PON team interviewed (privately and on a not-for-attribution basis) more than 45 of the government officials, local leaders, industry stakeholders, science organizations and environmental advocacy groups with long-standing interests in the future of the Arctic.  Those interviews were incorporated into a Stakeholder Assessment -- a 30 page document summarizing the views of each category of stakeholders (without attributing anything to any individual) in response to seven questions. Interviewees were asked about: (1) new risks to various Arctic fisheries posed by retreating sea ice;  (2) strategies for protecting fish stocks; (3) gaps in scientific knowledge; (4) the possible need for new monitoring systems; (5) concerns of indigenous communities; (6) ways of reducing the impact of oil spills that might occur; and (7) the possible need for new treaties or new institutional arrangements. The key findings are summarized in three one page tables.

Based on the Stakeholder Assessment, PON invited 30 participants, representing most of the key stakeholder groups, to the Cambridge meeting. The ground rules were simple: we would talk through
the six questions and see whether the group as a whole could come up with suggested responses that might meet the most important concerns of ALL of the relevant stakeholder groups.  That is, we defined good ideas as responses to the questions that could win nearly unanimous support from everyone present.  There were no speeches allowed. There was no opportunity to rehearse long-held official positions.  Those were all summarized in the Stakeholder Assessment that everyone received ahead of time. You can read the Stakeholder Assessment here

Because everyone was participating in their "personal" rather than their official capacity, and no names would be appended to the eventual summary of good ideas, participants were free to engage in open-ended "problem solving," without fear that their statements would get them in trouble "back home."

The conversation was facilitated by the PON team (which I headed).  As the discussion unfolded, good ideas were captured in real time on a large screen behind the facilitators at the end of a
large horseshoe of tables and chairs around which the participants sat.  What people saw weren't minutes (again, no one was named). Only emerging points of agreement, summarized at the end of each segment of the discussion by the facilitation team, were recorded.

By the end of the session, the group was somewhat surprised that many points of agreement emerged, especially regards the desirability of a temporary moratorium on oil and gas exploration as well as fisheries development in the Central Arctic Ocean. This would permit collaborative scientific efforts a chance to build an accurate baseline and prepare generally accepted forecasts of changing conditions. Several groups were quite concerned that such a moratorium should only be freely adopted by each country involved, and not imposed.  Most were not willing to think in terms of a permanent moratorium, at least not at this time.  You can read the Summary Report here

A Devising Seminar is a carefully constructed and facilitated forum in which a wide range of stakeholders, who often have no opportunity to engage in constructive face-to-face problem solving because of the political and institutional setting in which they operate, can, in fact, explore their differences and search for well-founded agreements. Such sessions can only succeed when they are preceded by the preparation of a full-blown Stakeholder Assessment,  prepared by a team of neutral facilitators trusted by the parties. Participants have to be assured that what they say in informal conversation won't come back to haunt them. The participants in the Devising Seminar must include a range of technical or scientific experts who can offer well-informed answers to factual questions that arise (even if they disagree among themselves).  The facilitation team must allow all the participants a chance to review and revise the draft Summary of the Devising Seminar report, even though no one's names are ultimately mentioned.

The Summary Report of the Devising Seminar on the Arctic Fisheries was presented at a recent plenary meeting of the Arctic Circle in Iceland.  More importantly, the document is now in the hands of the senior leadership of each of the Arctic Council countries, First Nation Permanent Participants and many of the most active scientific and civil society groups with a stake in the Arctic.  They are all free to cite or draw on the good ideas in the Summary Report in any way they want.  What's unusual, I think, is that they can put forward any recommendation contained in the Summary Report with confidence that almost all of the other stakeholder groups involved are likely support these ideas.

Sunday, June 15, 2014

Social Venture Capitalists, Where Are You?

I was reading yet another story about the impact that venture capital companies are having on the economy of Boston.  Good (scientific and technological) ideas emerge from the laboratories at MIT, Harvard and other Boston area universities. Venture capital firms swarm the best of these, offering start-up funding and a lot of advice on how to get new products to market and convince others to invest in them.  The venture capital firms have learned a lot over the past few decades about picking winners and losers.  They know what to look for. They  measure their success in terms of the private investment capital they can attract (often by going public) and the increasing valuation of the companies they create, when they are later bought and sold. They don't actually have to make money in the short term to be considered a long-term success.

There are a lot of us around who know how to help companies, communities, organizations and agencies build social capital.  That is, we know how to help companies improve corporate-stakeholder and corporate-community relations.  We know how to build trust where only suspicion once reigned.  If you can do this, you can multiple the return to capital realized by the venture capitalists AND produce fairer, more sustainable results. We know how to help extractive industries like mining and forestry, for instance,  avoid the endless legal battles and costly delays that make it hard to get started and harder to function in a cost-effective way. They need to change the way they interact with host communities, regulators, and people likely to be affected by what they do.  We can show them how to do that.

The largest hydroproject in Chile was just stopped by the courts because the companies involved did not make sufficient efforts to engage residents (including indigenous communities) in thinking about what to build, where to build and how to minimize impacts (by making smarter locational and design decisions).  They never got around to talking about compensation for adverse impacts that could not be mitigated. Secret corporate decisions led to harsh public opposition.  Legal and political advocates were able to delay and ultimately stop what looked to be a done deal. Huge oil and gas projects proposed in the Arctic are likely to be stalled in the same way, and appropriately so, if companies don't invest sufficient time, effort and money now in building trust, sharing decision-making responsibility, and minimizing social and environmental impacts.   Oil, gas and mining interests in Africa are sitting on huge new finds, but they face long stalemates if they don't  figure out how to build social capital. If local interests don't stop them, international NGO's like Greenpeace will.  The old models that ignored the need to build social capital (i.e. good working relationships with those likely to be affected by what is being proposed) no longer work.

At the local level in the United States, its much the same story. Energy companies know that we need more electricity to support a growing economy; yet, efforts to initiate fracking (natural gas exploration), the siting of renewable energy facilities (like wind farms and large solar arrays) and large scale mixed use development projects in many cities are facing increasing opposition. What's sad, is that it would not be that difficult to help the companies involved generate the social capital required to permit (appropriately-sized sited) projects go forward without obstruction. Think in terms of Community Benefit Corporations.  Any developer proposing to build any large project in a city or in a region would create a private corporation. This legal entity would own a portion of the assets created by the project.  It would then distribute shares in that project to every resident or stakeholder. These shares would not be worth anything at the outset, but if the project goes forward with community and stakeholder support, the shares would gain in value.  Thus, the developer and the community have a joint interest in finding a version of the propose project that everyone can support. Shareholders, or course, would be able to speak at annual meetings.  They wouldn't have to plead for an opportunity to address the owners (to complain about unexpected social and environmental impacts), because they would be the owners.  The directors of each Community Benefit Corporation would include a certain number of members identified by the investors, several selected by elected officials and some chosen by the full membership of the shareholders.  (Rural Electric Cooperatives in the United States have been doing this for an awfully long time.)  This is just one option for building shared commitments and restoring levels of trust.

Building social capital in something that most venture capital investors know nothing about.  There are, however, organizations (mostly not-for-profits) with the knowledge and experience to provide investors with the advice and assistance they need.  Increasing social capital translates into greater economic returns.  It also translates into more socially and environmentally responsible development and restores trust that has been so eroded by the manipulation of public opinion by secret investors operating under made-up names implying they care about what happens to the average person. They don't.  The political deadlock we are in now is caused fundamentally by a lack of trust. We can work to restore trust, increase the chances for development (of the appropriate kind) to proceed, enhance the growth of the economy and cause the benefits of new development to be shared in a fairer way.  We just need to complement our fascination with venture capital (and an economy of start-ups) with a purposeful commitment to the creation of social capital.  And the people with all the money need to acknowledge they need the help of advisors from the not-for-profit world who have been creating social capital for years. 

Monday, May 5, 2014

Preparing for Climate Change Requires Collective Risk Management (CRM)

If I told you that your coastal city will probably face rising sea levels, more very hot summer days, and increasingly intense rain and snow storms, would you expect someone to do something? What exactly? And whose responsibility is it to take appropriate action?  Even if  the city wants to do something, what can they do to minimize the worst effects?

The Science Impact Collaborative at MIT has prepared risk assessments for four coastal communities in New England.   Here’s what one looks like (please click the images to view them in full screen format):

By downscaling global circulation models (and checking forecasts against actual meteorological data from local measuring stations) we can generate local forecasts for the near term (about 20 - 30 years in the future), the medium term (about 50 – 60 years into the future) and what we are calling the long term (about 80 – 90 years in the future).  All the towns we looked at are very likely to get hotter and wetter.  You can see all the details about the forecasting methods and our findings at

If I boil all the results down, and tell you that annual rainfall is going to increase 5 inches a year (or about 10%) over the next several decades, the number of times extreme rainfall happens (more than 4” in 48 hours) will double, sea level will increase between two and five feet, and the number of days with 90 degree temperature in the summer will increase from about three to as many as 30, would that worry you? After all, the worst effects might not happen during your lifetime (although they are very likely to happen during the lifetime of your children).   My assumption is that your first reaction would be, “What does this mean for me?”   Well, it means that if you live in a low-lying area, your house is going to be flooded periodically, and you are likely to be without electricity for extended periods.   If you live very near the shore, erosion might make your house uninsurable and unsellable.  If your mobility happens to be limited (by age or illness), you might need to evacuate periodically. And, you may have to stay in an air-conditioned location for long stretches in the summer. It could be that you will be at greater risk of suffering from airborne diseases of various kinds. In general, you can probably expect to be inconvenienced and even endangered on a regular basis.  Your drinking water supply could be at risk.

If everyone in your city is upset enough about all of this, you could press your elected officials to do something.  They could raise taxes and invest in various improvements to the town infrastructure (including roads, electricity transmission lines, drinking water, waste treatment systems, and even water-proofing public buildings).   They might buy a lot more emergency response equipment and arrange to have more trained personnel available.  They might try to reduce the vulnerability of coastal properties by building seawalls or other blockades, although these are very expensive. They could impose new zoning and development restrictions or “buy out” property owners in the most vulnerable areas.  They could adopt revised building codes requiring everyone to build new houses up on stilts or with first floor “breakaway panels” so that water can run through without destroying the whole structure.  Some of these are things that individual property owners can do on their own, most require permission of the local government or collective efforts.

In our surveys, many people are pessimistic about the ability and willingness of their local officials to take action.  They are not optimistic that officials will take climate change risks into account when they make new infrastructure investments today.  It makes no sense, for example, to build a wastewater treatment plant by the harbor (even if the town already owns the land there), if that facility is likely to be flooded out or destroyed multiple times during its 30-40 year life. But, if no one pays attention of the kinds of risks we have outlined, that’s just what will happen.  Can you imagine having to invest multiple times in rebuilding the same facility because no one bothered to take climate risks into account when they chose the site or designed the facility in the first place?

If we publish a list of possible actions your town can take to prepare for climate risks, along with a price tag for each possible move, it’s probably fair to say that there will be substantial disagreement about what should be done.  Some people won’t want the town to take any action.  Some will be indignant about having restrictions placed on what they can do with their own property (even though they will certainly expect to be rescued at town expense in the next big storm and will blame officials if they can no longer purchase property insurance because the town failed to take obvious risk reduction steps).  Until and unless the whole town gets together, educates itself about the likely risks, inventories possible adaptation strategies and reaches agreement on the best way to proceed, nothing is going to happen.

Our work has focused on designing and testing low-cost strategies for preparing coastal communities to take collective risk management decisions.  It turns out not to be that hard.  In a couple of hours, we can help large numbers of residents attending regularly scheduled meetings of organizations, social clubs, homeowner associations or business groups, to learn what they need to know and see how easy it is to generate informed agreements when people listen to each other and take each other’s views seriously. If this is something you want to your community to do, learn more at the New England Climate Adaption Project, the Science Impact Collaborative, or the Consensus Building Institute. 

Thursday, April 24, 2014

You've Got to Go Slow to Go Fast

[On the occasion of the twentieth anniversary of the Consensus Building Institute, April, 2014]

I don’t like to put things off. I’m for getting everything done as quickly as possible.  And even though I’m trained as a planner, I’ve always been more focused on the present than the future.  So, when we started the Consensus Building Institute (CBI) in 1983, I was committed to moving quickly to launch a not-for-profit organization that would offer mediation and other neutral services in as many locations as possible, as quickly as possible.  We didn’t have a business plan. What I told prospective clients was that we could help them address almost any kind of conflict by (1) talking with all the disputants privately and confidentially, (2) organizing training or other capacity-building activities that would prepare them to engage in joint problem-solving, (3) undertaking background research that might shed light on relevant lessons learned elsewhere, and (4) facilitating face-to-face conversations or problem-solving efforts that could lead to mutually advantageous outcomes.  It took some years for me to realize that people and organizations dealing with difficult conflicts are not inclined to move quickly in new and different ways, even though I was convinced we could be of immediate assistance. Most had no idea about the ways in which professional neutrals can add value.

Twenty years later, CBI operates in a different way.  We now tell potential clients that they must “go slow to go fast” (an argument, by the way, that I eventually introduced in my book Breaking the Impasse in 1987).  Why? Why can’t people, groups and organizations move quickly to deploy consensus-building services or switch from a zero-sum approach to a mutual gains approach to decision-making?  There are three important answers to this question that our first twenty years have taught us.  First, doing things in a new way is likely to seem risky (even if the old way of doing things isn’t working).  Second, no one in a position of power wants to give up control, and many think that the addition of a professional neutral means that someone will be taking over from them.  Third, even if we have identified a champion in an organization, fully committed to consensus building, that individual needs time to bring their organization along.

Doing Things in a New Way Seems Risky

Even though the advantages of consensus building may be clear to us, we need to help clients understand exactly how this new way of working will unfold.  They need to feel confident enough about what we are proposing to explain it to others (who may be skeptical).  Whatever dangers or threats they see, must be addressed, carefully and slowly. We need to get people to understand that consensus building is not just a good idea in theory but that there are ways in practice of minimizing any risks attached to moving in a new direction or doing things in a new way.

People in Power See Mediation As a Threat

People still confuse mediation or consensus building with arbitration. That is, they think neutrals will impose judgments rather than helping the parties reach informed agreements. People in the middle of disputes or conflicts tend to think in win-lose terms.  So, they are unlikely to believe, at the outset, that all-gain solutions are possible.

Consensus building Requires Organizational Not Just
Individual Commitment

Even in the short run, someone who wants to advocate consensus building needs to sell others in their organization on the idea.

We want to leave problem-solving capabilities in place that do not hinge on our involvement going forward.  In a sense, we want to put ourselves out of a job by building our clients’ problem-solving capabilities.  (I know some people think that’s not a good business strategy, but I disagree.  Satisfied clients we have empowered to handle things on their own are much more likely to recommend us than those dependent on us, and often they want us to partner with them on complicated projects.)

I’m excited to be part of this wonderful effort to help CBI look ahead twenty years.   Now that we know that we have to go slow to go fast, I’m confident we can use build our knowledge base and enable a wide array of new clients to apply consensus building to water, food, energy and other disputes in our increasingly constrained world. 

Tuesday, January 21, 2014

What is sustainable city development?

Our team has spent the last two weeks in Malaysia, moving from city to city, meeting with public officials, private developers, civil society organizations and academics.  We know that as a country Malaysia has managed, through careful planning, to grow its economy in remarkable ways.  Poverty levels are way down.  Investments in public education, quality health care and and infrastructure are  impressive. In addition to the new capital city of Putrajaya, which was created in part to relieve pressure on Kuala Lumpur (KL), other cities and regions like Johor Bahru (JB) expect to add millions of additional people and jobs over the next ten years.  By 2025, Malaysia intends to be a developed, not a developing nation.  In addition to explicit economic development targets, there is also growing environmental awareness (with a national commitment to becoming a low-carbon society) as well as an emerging commitment to social development. Our question, then, is has all of this translated in some measurable way to more sustainable patterns of city development?  And, what more can be done to ensure that this happens?

We have looked at KL, JB, the world heritage cities of Penang and Malacca, and Kuching in
East Malaysia.  The way cities are developing suggests at least three things.  First, Malaysia takes planning seriously.  There is a national law that requires national growth policies, state structure plans, local master plans and detailed urban design guidelines and sector plans.  Most of these are in place.  The national government funds almost all infrastructure investments (in airports, highways, major parks, energy facilities and even schools).  So, these are not a function of local or state tax revenue.  These infrastructure investments are made with the three levels of development policies and plans in mind (although there is no formal consistency requirement).  The private sector fills in everything else (within the frame of local zoning laws and a variety of tax and investment incentives).  Real estate investments (especially at the high end) are quite profitable. KL is the fourth leading shopping destination in the world (after New York City, London and Paris). Shopping malls are everywhere.  Income taxes are relatively low. While there are plans to implement a kind of value added tax in the coming months, it will be much lower (around 6%) than the European VAT (which is as high as 20%). With the public sector in a position to control the overall pattern of city development and a growing private sector (with ample capital) eager to invest, the prospects of achieving sustainable city development are high.

Second, Malaysia is concerned about providing affordable housing for those whom the market fails to serve, but the mechanisms for doing this are still evolving.   There's nothing like the US Section 8 program that subsidizes qualified households or units so that people of different incomes are mixed.  In Malaysia, the government funds most public housing or requires developers to build a certain number of affordable housing units as a quid pro quo for being allowed to proceed with large scale commercial or mixed use development. These units are almost always built "off-site." There are set income levels and square footage requirements that apply nationally. Affordable housing units tend to be segregated from high end units that are mostly set in gated communities.  And, it is not clear how the public housing projects in Malaysia will escape the fate of the US public housing programs of the 1950s and 1960s which led to dismantling large public housing projects like Pruitt-Igoe that deteriorated horribly because no one had either the incentive or the funds to maintain them.  There are government funds being invested in "catalytic" economic development projects in growth corridors in Malaysia, but the social development money (requested from the developers of these projects) is not yet being invested in mixed income housing near to the new jobs that are being created.  As in many countries, the connection between land use policies and (mass) transportation policy is weak.  Siloed authorities do their own thing. Planning does not yet extend through to implementation of separate sectoral transportation, energy policies, or university expansion and other economic development plans at the federal, state and local level. The policies and plans in place are impressive.  Implementation in a coordinated way, however, is still a challenge.

Third, Malaysia takes environmental quality and the maintenance of ecosystem services seriously. But, green jobs are not yet a focus of city development and other than in Putrajaya (a completely planned national capital), investments in ecosystem services have been used more as a marketing strategy than as a guiding principle of city development.   Malaysia has all the energy it needs. And the cost of energy is low.  While the national government has adopted a low carbon development plan, city development outside of KL is not at a sufficient density or in a sufficiently walkable form to discourage automobile use. Investment in mass transit is lagging.  In addition, the climate is not especially conducive to a lot of outside activity (i.e. biking, walking) in low density settings. There is ample water and a great deal of arable land (although more than 60% of it is devoted to production of palm oil).  While this is profitable --Malaysia in the #1 producer of palm oil in the world -- it means that Malaysia imports a great deal of its food (including rice and beef) because there is much less land devoted to agricultural production than there might otherwise be.  Marine and coastal resources (i.e. mangrove forests and fisheries) are getting some attention, but much more needs to be done to ensure that coastal cities grow in a way that balances economic objectives with ecosystem preservation.

Our university partners at Universiti of Teknologi of Malaysia (UTM) are benchmarking sustainable infrastructure investments in other countries.  The national science agency in Malaysia is focusing on sustainability and ways of responding to climate risks (especially serious flooding caused by intensive rain storms). The national government knows that social development (including concern for aboriginal and tribal communities outside of urban areas) requires as much attention as economic investment in cities. Economic relationships with Singapore require constant attention -- especially ways of ensuring that residents in the South of the Malaysian peninsula can commute easily to jobs in Singapore while Singaporians with money to spend can invest in second homes and shop in Malaysia where taxes are low. There are lots of efforts afoot that could lead to increasingly sustainable patterns of city development (economically, environmentally and socially).  The tasks ahead appear to be (1) finding the right balance between top-down government planning and investment and bottom-up citizen-led efforts to create and preserve community life; (2) dealing with the tension between the desire to promote national economic growth and the need to assist those at the local level (and the bottom of the income scale) for whom inflation in land and house prices means they could be forced out of their homes and shops; (3) maintaining the essence of Malaysian culture in the face of increasing consumerism and tourism; and (4) furthering Malaysia's commitment to democratic ideals in the face of increasing tension among the diverse ethnic components of the population.

The success to date has been noteworthy. And, I think there is reason to believe that the leadership and the population will be able to handle the four tasks I have listed. They have a well-educated population with the capacity to make a high-tech society work. I hope our MIT-UTM Sustainable Cities Program ( can be supportive in all the right ways. 

Saturday, December 7, 2013

Why don't judges just settle legal disputes?

In some Canadian provinces, they take what is called Judicial Dispute Resolution (JDR) very seriously.  During designated periods, litigants can choose to have a judge (in Provincial Court matters) or a Justice (in Court of Queen's bench matters) help them settle their law suit in a confidential pre-trial conference.  The judge is free to choose a "facilitative" approach, emphasizing joint problem-solving and a very "hands on"mediation style or a more "evaluative" approach in which the judge forecasts what the outcome will probably be if the case proceeds to litigation. Judges who adopt an evaluative JDR approach assume that once one or both sides hear what the JDR judge has to say, they will get "realistic" and be more inclined to reach a settlement, often on their own.

I recently had a chance to spend some time with several dozen judges who do JDR.  I was
surprised to see how differently they approach their dispute resolution assignments. Since judges rarely have time to watch their counterparts work, so the variation in their methods surprised them, too.   To my way of thinking,  these differences raise several interesting questions. Is it fair to litigants when the judges in the same province offer radically different services under the JDR heading?  Or, is it advantageous?  Do the lawyers involved understand what they are buying into when they sign up for JDR with a specific judge?  If (some) judges are offering the same mediation services that private out-of-court mediators provide, does it make sense for judges to be doing this work?  Shouldn't their time and energy be devoted exclusively to more traditional judicial activities?

Let me begin by saying that in my view, every judicial system ought to include JDR. At present, though, only a few countries like Canada, Australia, New Zealand and the Philippines are fully committed to the idea. (You can read more about why this is the case in Tania Sourdin and Archie Zariski's book The Multi-Tasking Judge: Comparative Judicial Dispute Resolution.) The general hope is that JDR will reduce the court's burden, minimize the time and cost involved in litigation, and generate agreements that leave both sides (rather than just one side) happy with the outcome. In the Province of Alberta, Canada, more than 80% of the litigants who take advantage of JDR, express a high level of satisfaction with both the process and the outcome.

Let me come back to each of the questions I raised above. If JDR produces "better" results (in the eyes of the litigants), more quickly, then it is probably worth the effort. If JDR takes judges away from more traditional judicial activities, leading to a shortage of judges to handle traditional cases, then that's a problem. If judges are consistent in their approach to JDR, taking either an evaluative or a facilitative approach, and both lawyers are aware of these styles and can choose the JDR judge they want, than the differences may be advantageous.  If lawyers are unaware of these trends, or have no control over the judge assigned to their case, then these variations may create significant unfairness.  This assumes, of course, that one approach is better suited to the facts of each case. For example, if settlement hinges on non-financial considerations (i.e. apologies, future relationships between the parties, creative swaps that go beyond what the rule of law requires, etc.), than an evaluative approach is likely to produce sub-optimal outcomes.  If only financial considerations are at stake, and the parties are not likely to have any future interactions, then a facilitative approach might not be necessary.

Some judges are quite capable of adopting a hybrid approach, relying on caucusing and joint problem-solving part of the time, but knowing when and how to introduce a forecast of what might happen if the case goes to litigation. If all the judges in the system are able to make the switch, and use either method, the variation in approach won't be an issue.  But, it appears, they are not. So, it might make sense for all cases headed for JDR to first go through out-of-court (facilitative) mediation.  If a case does not settle out of court, then, and only then, would it go to a JDR settlement conference.  My sense is that the JDR judge ought to have access to a summary report from the outside mediator. The report would not to go, of course,  the judge who ultimately hears the case if JDR fails.

I was surprised to learn that JDR judges don't receive much training in the tools of dispute settlement. That seems like a mistake.  Just because someone is appointed to the bench, doesn't mean that they are skilled in settlement techniques.  At the very least, I would expect new judges to shadow some of the most experience JDR judges in their district for a while before handling JDR cases on their own.

I know that published evaluations of JDR indicate that the parties who participate are mostly satisfied.  I'm not sure, though, they know what they might have missed. JDR participants might be happy because they avoided the discomfort and the cost of traditional litigation, not because they got an ideal outcome.  Someone needs to do assessments of JDR that look closely at the potential "joint gains" the parties may have left on the table and not just at the short-term satisfaction (or happiness level) of the participants.  Also, what about the 15 - 20% of JDR participants who are not satisfied?  We need to know what can be done to address their concerns.

Judicial systems that don't have any form of court-annexed mediation, or pre-trial settlement conference facilitated by a JDR judge or a trained mediator, ought to consider the potential savings associated with these options. Those that have JDR, ought to make some adjustments if variations in the dispute settlement techniques employed by the judges in their system are producing sub-optimal results.

Saturday, September 21, 2013

Advanced Negotiation Training

The Program on Negotiation (PON) at Harvard Law School ( just offered a Master Class in Negotiation for the first time. As one of the trainers involved, I can tell you it was not easy to decide what an advanced negotiation training course should cover.  In the end, we decided to accept only applicants who had completed one of PON's Senior Executive three-day training programs in the previous ten years.  That reminded us what a Basic Negotiation course covers,  including concepts like interests, BATNA, reservation values, ZOPA, value creation, value distribution, the use of objective criteria, packaging or trading, dispute resolution clauses, and other concepts presented in Getting to Yes (Fisher and Ury), The Art and Science of Negotiation (Raiffa), Getting Past No (Ury), Beyond Winning (Mnookin), Difficult Conversations (Stone, Heen and Patton), Negotiating Rationally (Baxerman and Neale), A Behavioral Theory of Labor Negotiations (Walton and McKersie) and The Manager as Negotiator (Lax and Sebenius). That still left open the question of what the content of the Advanced Course should be.

In the end, we decided that an advanced course should focus on the real-life obstacles that arise when managers try to apply concepts and strategies they learned in the Basic Course. We also decided to present some emerging ideas including expanding the negotiator's emotional portfolio, anticipating the most difficult questions likely to arise in any negotiation, taking account of "subjective" value and not just the financial or "hard" costs and benefits that most negotiators emphasize, and dealing with the organizational pressures that make it hard for negotiators to be effective. We asked the 60 participants to tell us before they arrived about the negotiations that worried them the most.  We discussed these in small (three and four person) setting over meals with the four senior faculty trainers.  The positive reactions suggest that we made some good decisions.  We kept the whole group relatively small.  We sent participants a lot of material to read ahead of time. We focused on the problems that participants wanted to discuss. We used video recording and intensive group debriefings to make sure people had time to make connections between the ideas we presented and their own practice.  And, finally, we devoted much more time to interactive exercises than lectures.

I will describe three concepts that I emphasized during my section of the Master Class.  All three stem from my strong belief that negotiation is as much an organizational task as it is an individual responsibility. The first is the idea of a Negotiation Audit. Organizations, companies or groups that want to enhance the performance of their negotiators should bring in a qualified outsider to conduct an audit of the most important internal and external negotiations undertaken in the past 12 - 24 months.  This usually requires numerous confidential interviews with a range of personnel, at various levels.  Based on such interviews, it is possible to prepare a Negotiation Audit, similar in many ways to a fiscal audit that a company might use to gain an independent perspective on how its money is being managed.  A good negotiation audit can pinpoint standard operating procedures that impede negotiation success. You can read more about Negotiation Audits in Movius and Susskind, Built to Win: Creating a World-Class Negotiating Organization, Harvard Business Publishing, 2012

The second idea I talked about is the importance of coaching. We modeled typical interactions between a senior manager and his direct report who wants advice before, during and after a crucial negotiation with a client the company can ill afford to lose.  The senior manager does not provide much help although he thinks he does.  A great many senior managers have no idea how to coach their direct report, so the organization never gets any better or learns from its experience.  We talked about ways of adding coaching resources so that negotiators can find the help they need, even when it is not a good idea to rely on their direct superiors.

The third thing I talked about is the use of tailored training to enhance an organization's negotiating capabilities.  I described the reasons why so much money is wasted on training that is not appropriately tuned to the needs of an organization. Company-sponsored negotiation training should almost never be off-the-shelf.  I reviewed the questions that negotiation trainers must answer if they are going to create training programs that produce results that drop directly to the bottom line.

Of all the things we talked about in the Master Class, the idea that seemed to get the most attention is how to manage the relationship between the person you are negotiating with and their back table. If you can't help your negotiating counterpart get the right mandate, it won't matter much what you say or how you say it.  Your counterpart is really your emissary to their back table. You need to learn how to take account of that.

So many training programs operate at a basic level. It's time to move to more advanced levels.  There are a series of new books coming out in the next year that may be of some assistance, although I think most advanced training programs need to zero in on the problems that are front-and-center for the participants.  The first is Michael Wheeler's The Art of Negotiation: How to Improvise Agreement in a Chaotic World (Simon and Schuster, 2013). Wheeler talks about the importance of improvisation, arguing that anyone trying to adhere to a script, no matter how well prepared they are, is headed for trouble.  My new book, coming out in 2014 from PublicAffairs, is entitled Good for You, Great for Me: Winning at Win-Win Negotiation. My focus is on the "claiming problem."  At the basic level, we've taught people how to cooperate to create more value.  Now, at the advanced level, we've got to teach them how to claim as much of that value as possible (and as they deserve) without undermining relationships.