Saturday, March 12, 2011

The California Folks Got it all Wrong

The Public Policy Institute of California recently released a report on water management in California. The good news is that they paid a lot of attention to the benefits of employing consensus building techniques to resolve water disputes. The bad news is that they really have no idea how consensus building works. (http://www.ppic.org/main/publication.asp?i=944).

They do acknowledge that there are numerous well-documented efforts to resolve contentious water policy and water resource allocation disputes and that these have produced innovative solutions that met the interests of parties involved. In almost all of these cases, I would add, scientific and not just political concerns were taken into account, and the effort to reach agreement improved long-term relationships making it easier for government and stakeholders to deal with each other in the future. That much the PPIC report got right.

Then, they went on to conjure up prospective difficulties, quoting various “analysts” who believe that consensus building is actually a bad thing because it allows entrenched interests to block needed reforms, leaves out marginal groups, and allows government officials to evade responsibility. Anyone with any direct consensus building experience knows that none of these things is possible in a properly managed process.

Think about it. How can entrenched interests use a collaborative process to block reforms when all relevant parties must be at the table and decisions must be made by near-unanimity? Or, how can a consensus building process exclude marginal groups or fail to take account of the broader public interest when the process is run by a professional neutral committed to ensuring that the interests of all such groups are served? Also, a well-managed consensus building process always begins with a Stakeholder Assessment prepared by a professional neutral. Best practice requires that representatives of all relevant groups identified in an Assessment be invited to the table.

The idea that a consensus-building process could diffuse accountability or permit governmental entities to evade difficult decisions is really off-the-wall. Collaborative processes aim to produce proposals, not decisions. It is always up to elected or appointed bodies (that convene consensus building efforts) to decide what to do with the proposals produced by the participants. Indeed, those with formal statutory authority can’t delegate to ad hoc groups the responsibility for making public policy decisions or allocating public resources. Consensus building is a supplement to, not a replacement for democratic decision-making. So, whatever accountability was in place is still there when a consensus building processes is added to the mix.

The PPIC folks suggest that consensus processes tend to emphasize safer incremental agreements at the expense of bolder, more strategic solutions. I wonder where they got that idea. Do they think that there is someone else, besides the actual stakeholders (which includes the relevant agenies), who can figure out what a “better” strategic solution should be? For the most part, the goal of collaborative problem-solving is to design adaptive agreements that allow for continuous adjustment and improvement. The systems we are talking about are much too complicated (and the current climate change context is much too complex) to make (bold)long-term decisions once and for all. The smart thing to do is make shared objectives clear, prescribe specific programs of action, indicate what needs to be monitored and who will do the monitoring, and maybe spell out pre-agreed modifications so that when something surprising happens, we know before-hand what the agreed-upon adjustments are going to be. Consensus building ensures that fairer, more efficient, more stable, and wiser agreements will be reached most of the time.

All natural resource negotiations involve interests, rights and values. No one should be expected to negotiate away their fundamental rights or values when they come to the negotiating table. That doesn’t mean, though, that collaborative problem-solving can’t produce agreements that are “better” for all then what they are likely to get by fighting it out in the court of public opinion, lobbying the legislature or paying high-priced lawyers. Facilitated problem-solving is more likely to lead to agreements that meet interests all around, acknowledge basic rights that must be respected and embraced, and specify overarching values that all disputants can respect regardless of their differences.

The point of a water negotiations isn’t to produce ideal agreements that allows everyone everything they want. That’s not possible. Rather, the objective of informal problem-solving, facilitated by a professional neutral, is to find a way to meet the interests of all relevant stakeholders (respecting their rights and values in the process) that is better for all of them than what the most likely outcome will be if they go off on their own.

The PPIC authors argue that consensus processes are only likely to be effective when stakeholders have exhausted all other means of resolving their differences. This is not what we have learned from hundreds of successful mediations. It is, in fact, much easier to get all parties to engage in collaborative problem-solving early on (upstream, we say), before they are backed into a corner or so firmly entrenched that they can’t relinquish their stated demands without “losing face.”

All professionally managed consensus building efforts operate within a time frame and ground rules that the parties themselves formulate before they begin. That’s one of the basic product of a Stakeholder Assessment. I can’t believe the authors of the PPIC report don’t know that all consensus building processes operate within pre-specified time tables. No one should ever be forced to join an open-ended consensus building effort.

In many instances, site specific or case specific efforts to resolve resource allocation disputes can lead to dispute system redesign so that future conflicts of the same kind will automatically be diverted to better collaborative adaptive management processes. So, consensus building is not an obstacles to more fundamental reforms in the way that the PPIC reports suggests. In addition, I can't believe they didn't know that all collaborative problem solving processes need to be managed by a professional neutral and that joint fact-finding is invariably an early step in the process. I’ve sent these guys a copy of Breaking Robert’s Rules (Oxford, 2006) that spells all this out.

Collaborative problem-solving processes do have costs associated with them, but it is almost always less expensive to divide these cost among all the parties than to require each party to spend its own money on lawyers, expert advisors, public opinion pollsters and media consultants. If you add up the full costs, from beginning to end, it is almost always less expensive and less time-consuming to bring the parties in a water dispute together to work out their differences with the help of a professional neutral than to send them off on their own. There’s plenty of documentation of this fact.

Finally, like other inexperienced commentators, the PPIC folks talk about unequal power and how consensus building can only work when parties have relatively equal power. But just think of all the instances in which people sitting around a table end up agreeing to a good idea, regardless of who proposed it. If someone can come up with a way to meet everyone’s interests, their political standing vis a vis the rest of the group isn’t important. In addition, coalitions form when there are a lot of parties involved in a complex dispute resolution effort. A less politically powerful group may become part of a winning coalition regardless of their power "away from the table."The idea of “equal power” being key to consensus building comes from irrelevant “cold war” thinking when all disputes were framed in zero-sum terms when they didn’t need to be. There is hardly a single water conflict, at any scale, that can’t be reframed in a way that would allow all sides to realize joint gains.


So, get with it, PPIC. Your report is filled with incorrect assumptions. And, you’ve overlooked a substantial portion of the published research on the subject of consensus building.

1 Comment:

dan said...

Larry,

You are all too correct. It is unfortunate how prevalent the misperception is that an entrenched interest will hold a process hostage. In trying to promote mediated processes in FL, this seems to be the big resistance. Good mediators who can create a process whereby those entrenched interests are educated as to their alternatives outside of a collaborative process can produce better results. They become and stay entrenched when they don't understand where that may lead or when they have no other option. Unfortunately too few planners are trained to think like this and land use litigation is on the rise. The typical planning process down here seems to further entrench the extremes to the ultimate detriment of one side and the worst possible land use decision - the one created by a court of law rather than a knowledgeable group of interests.

Keep up the good work!

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