Sunday, January 8, 2012
When will the media ever learn? Mutually assured political destruction isn't a convincing threat.
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Sunday, December 25, 2011
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.
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Friday, August 12, 2011
Where is Aristotle When We Need Him?!
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Monday, August 8, 2011
Winning at Win-Win Negotiation!
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Friday, July 1, 2011
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
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.
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Sunday, June 26, 2011
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.
