The Consensus Building Approach

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

2012-01-08T08:03:00.000-08:00

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

2011-12-25T06:56:00.000-08:00

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?!

2011-08-12T08:34:00.000-07:00

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!

2011-08-08T07:52:00.000-07:00

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?

2011-07-01T12:54:00.000-07:00

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

2011-06-26T17:13:00.001-07:00

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

2011-05-07T08:18:00.000-07:00

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.

Those Who Oppose Wind Energy

2011-03-26T02:04:00.000-07:00

It can be difficult to win approval to build even a single wind turbine in an unpopulated area.

For the past three days, more than 100 wind developers, state regulators, environmentalists, local officials and technical experts met to discuss the right way and the wrong way to site wind energy facilities. With support from the Department of Energy, the Consensus Building Institute brought together advocates, opponents and experts to share their ideas and experiences. (You can read more about the event at www.cbuilding.org.)

Here are some pretty clear "do's" and "don'ts:"

Don't tell people that wind farms will be so quiet they won't hear anything.

Don't sneak up on people and announce plans to build something without giving everyone in the area a chance to say whether and how a project should be built.

Don't build wind turbines too close to the nearest abutters.

Don't let wind developers proceed without discussing how turbine operations might have to be restricted to reduce the risk to wildlife and the annoyance to neighbors.

Don't be afraid to talk about the ways in which the profits from a wind energy plant might be shared with the community.

Don't presume that 100% of the people in an area will go along with a proposed wind energy facility just because it meets all federal, state and local guidelines. Some people don't like change of any kind, regardless of the benefits that might be created.

Do find a way to involve all the relevant stakeholders in discussions about when, where and how to build and operate wind plants. (Make sure to use a skilled facilitator who doesn't have an axe to grind to manage these conversations.)

Do promise to compensate anyone who lives near a proposed facility for any decline in property values that might occur. (It is possible to buy "property value insurance" to make 100% sure that no one suffers any loss of property value.)

Do realize that everyone reacts differently to noise and visual impacts.

Do engage in joint fact finding so that all sides have a chance to frame the questions that need to be answered and select experts they trust to give them good technical advice. Avoid the dueling experts syndrome that is so common when cases go to court.

Do realize that hundreds of wind farms have been built across America (and in other parts of the world) and that past experience can be instructive.

Do realize that there are risks and benefits associated with any technology, and that the job of elected and appointed officials is to reduce risk and ensure that benefits are shared.

Do encourage states to involve the public in formulating state wind policies. Battles over specific sites and projects do not add up to general policies about where, when and how to encourage the construction of wind energy plants. Pre-approval of certain kinds of sites, set-back and noise requirements, aesthetic and environmental protection rules, community benefit agreements and monitoring provisions avoids the need to go through all these questions over and over again.

It's very clear that the traditional "town meeting" or "hearings" approach to energy facility siting is useless. Nobody learns anything at raucous public meetings. And, we can't count on local media to present information in an even-handed way. Newspapers, local television stations and talk radio exaggerate everything and reduce complicated questions to silly sound bites. They rarely have anyone with enough expertise to explain technical issues in a skillful fashion. Instead, communities must learn how to use the internet to encourage reasoned debate and non-partisan information sharing. Professionally facilitated stakeholder engagement (involving representatives chosen by the stakeholder groups themselves) can create a level playing field in which informal problem-solving is possible. This all has to be completely open and accountable.

The Facility Siting Credo (google it) summarizes the best way to ensure a fair, efficient and wise outcome in every single wind energy situation. It's not hard to do it right.

The California Folks Got it all Wrong

2011-03-12T12:38:00.000-08:00

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.

Water Diplomacy

2011-01-29T06:27:00.000-08:00

Managing the flow of water, as a river moves through several countries or across sub-state boundaries, can be extremely difficult. If the upstream riparians divert too much, the downstream countries are left empty-handed. If the upstream users don't maintain water quality, the downstream users pay a terrible price. Part of the problem stems from the fact that water users are likely to have different priorities and plans. The upstream countries may want to dam the water to generate electricity, or divert it for agricultural purposes. Some may be confronted with rapid population growth or a burgeoning resource extraction industry that demand more water than they have used in the past. Climate change may alter patterns of rainfall, cause temporary drought, increase storm intensification, lead to sea level rise, or result in saltwater intrusion into freshwater system. All of these things will change the pattern of water availability and quality. So, there are societal forces (politics, economics and culture) and natural forces (water quantity, water quality and ecosystems) all of which have to be managed at the same time.

We think of these six elements and the way they are configured as interlocking networks. There are three things about these networks that many water system managers get wrong much of the time. First, they act as if these networks can be bounded or closed. That is, they formulate agreements or laws that prescribe who the users are, which elements will be included and excluded and what the boundaries will be. The fact is, water networks can and should not be circumscribed in this way. New users and uses may appear at any time. Distant ecological and economic forces may need to be taken into account. Water networks are open, not closed (which makes them much harder to manage). Even when treaties or laws specify who has the final say, other stakeholders will do what they need to do to insert themselves into the official decision-making process. Water rights or battles over control of water systems have been the cause of war for centuries. Second, water system managers (and the politicians to whom they report) may try to set operating rules aimed at managing a river segment in a way that makes sense on an average day, in an average year or when the system is at a stable or steady state. But water systems rarely, if ever, remain in a stable state. They are subject to all kinds of climatic, economic and demographic pushes and pulls. If the "rules of the game" (particularly the allocation rights of different users and uses) are set at one level, but the reality is something else all together, there will be serious conflicts. The rules of the game often need to be changed or at least adjusted. Unfortunately, many of the legal regimes in place all over the world are too rigid to accommodate such change. Third, most water system managers act as if water is a limited resource (even as they waste it!) and that decisions about who gets water and how it may be used are zero-sum decisions. But, that's not always true. Sometimes water can be recycled or re-used a second time for a second purpose if the right kind of infrastructure is put in place and cooperative administrative arrangements are maintained. Shifting away from wasteful practices is the same as adding additional water supplies. The invention of new technologies or a shift to less wasteful practices can not only save water, but multiply its usefulness. So, water supplies are not actually limited and the smart management of water networks can create the equivalent of new supplies. The issue is how to move away from zero-sum confrontations to collaborative informal problem-solving that can create "water gains."

Water networks have multiple nodes or dimensions. Some of these nodes are natural and some are made by people. Nodes may be located in a single place or be part of a far-reaching global (ecological, economic or institutional) network. Some nodes may have great cultural significance. Effective management of water networks requires negotiation among and on behalf of all these different nodes. Unfortunately, most water system managers do not have the skills in engineering design, environmental science, and negotiation to do this. Historically, the way most water professionals have been trained emphasizes only one or two of these disciplines or dimensions.

In June, my colleague Shafiqul Islam at Tufts University, and I will offer a one week, interdisciplinary train-the-trainer program called The Water Diplomacy Workshop (WDW). You can read more about it at www.waterdiplomacy.org. Our goal is to build an international network of water professionals who share a commitment to a mutual gains approach to water network negotiation and who are ready and able to teach this approach to others. WDW meets in Boston from June 13, 2011 - June 17, 2011. If you are interested, you can apply on line.

Do You Really Want to be a "Tough" Negotiator?

2011-01-08T06:59:00.001-08:00

There it is again. In the New York Times today, William Daley, President Obama's new Chief of Staff, is described on the front page as "A Tough, Decisive Negotiator." If you read the article, they call him a "skilled negotiator" who is "blunt yet charming." Former Vice President Walter Mondale, says that Daley is "tough, but not a bully." Does tough really equal effective? No, I don't think so. You can be demanding and unyielding, but not necessarily effective. The way to judge someone's negotiation effectiveness is by looking at the results they achieve (as compared to the mandate they had when they sat down at the bargaining table). The press seems to confuse style with capability.

This is important. All kinds of organizations, both public and private, depend on official and unofficial negotiators to achieve their interests. They need to select the right people for key negotiation assignments, and they should reward their most effective negotiators so they send the right message through their ranks. If they select only negotiators with an adversarial (or bombastic) style, they are likely to be disappointed. And, if they reward individuals for how they are viewed by the "other side," rather than for the results they achieve, they will be sending the wrong message and hurting themselves in the long run.

Why is the press (and, I'll admit, the world-at-large) so enamored of seemingly tough negotiators? My hunch is that they don't know much about what actually goes in on high-level negotiating sessions. They imagine something like a shoot-out, with one fighter, still standing at the end -- having won, and the other dead on the ground. Those with actual experience know that the final outcome in most business, governmental and inter-personal negotiations is usually an agreement that both sides are prepared to live with. Otherwise, implementation is difficult, if not impossible. Anyone bludgeoned into an unfair agreement will drag their heels when it comes time to do what they promised. They'll look for every excuse not to do what they were forced or tricked into accepting. Experienced negotiators, on the other hand, know that their goal is to work out something that meets key interests on both sides; that is, something better for all parties than no agreement. While stubbornness might, at times, be a virtue, reaching a mutually acceptable agreement usually requires listening hard so you can figure out what's most important to the other side, and then inventing a low-cost way of meeting their interests in exchange for their meeting yours. Stubbornness is rarely a substitute for inventiveness.

Even inexperienced negotiators can be taught how to handle overly-demanding counterparts -- just remain quiet while they unload all their unreasonable demands and talk themselves out. Mild-mannered negotiators (i.e. those who not perceived as "tough" by the press or by higher-ups in their own organization) know that if they come to the table with a clear sense of their own interests, and proposals that meet the other side's interests pretty well and their own very well, they can be successful. There's credible research by Gerald Williams and others to prove that those with cooperative negotiating styles can get everything they want from those with highly competitive styles as long as they come prepared (and are appropriately empowered by their organization). Style and outcome are not linked.

So, all this talk of toughness-- and we see it especially in international relations where those with cowboy mentalities and highly competitive styles are expected to outdo those with cultural styles that are more low-key and cooperative, is rarely a good predictor of what's going to happen. The real issue is how well schooled in negotiation theory and practice the individual negotiators are, not what their style is. If organizations, particularly companies and governments, noted in writing ahead of time what the important interests are that they want their negotiator to achieve, they would have an easy way of determining whether or not their negotiators were effective. They would soon discover that the best negotiators are those who can find creative ways of meeting their organization's interests while meeting the interests of their counterparts simultaneously. That's a good indicator of success, not how adamant or unyielding they appear to be.

I'd love to see a newspaper headline that highlights a government or industry appointee's past ability to meet the interests on their side of the table while improving relationships with their negotiating counterparts. That's someone I'd want to hire.

Talking to Climate Skeptics

2010-11-11T11:08:00.000-08:00

On Wednesday, November 10th, I had an opportunity to speak to a packed room of students and community residents at Harvard College seeking advice on how to talk to climate skeptics. The premise was that students would soon be heading home for Thanksgiving. They were looking for advice on how to talk to family and friends around the holiday table who either don't believe that global warming is happening, or accept the fact that the climate is getting warmer, but attribute relatively recent temperature changes to natural rather than man-made causes. To get things started, we heard from a local radio talk show host who really is a climate skeptic. He made it very clear that he doesn't trust Al Gore, is sure that scientists disagree about almost everything (because that's what science requires), and thinks that anyone who believes that climate change is the result of human activity (rather than cyclical natural phenomena) has been sold a bill of goods.

First, I tried to make clear that seeking to convert "non-believers" is probably a mistake, and is certainly no way to encourage constructive dialogue. Rather, I suggested, the goal of dialogue ought to be to share ideas, advance the cause of mutual understanding, and see what opportunities to reach agreement might exist -- in spite of fundamental differences in beliefs or levels of understanding. A number of the students present found this unacceptable. From their standpoint, the threat posed by the continued build-up of greenhouse gases in the atmosphere is so frightening, they are compelled to convince anyone who doesn't believe this to admit that they are wrong. These want to repeat and review what the vast majority of atmospheric scientists know to be true -- the atmosphere is warming; this is caused by the build up of greenhouse gases, particularly CO2 and methane; this build up is caused by human activity, particularly the burning of fossil fuels; and the end result will be a worldwide catastrophy -- sea level rise that will inundate vast coastal areas, particularly in the developing world; increasing storm intensification the will cause destructive flooding and Katrina-like devastation;increased drought in some areas and increasing numbers of extremely hot days that may cause massive eco-migration; more rapid spread of airborne disease, and irreversible harm to a range of marine and terrestrial species and habitats. The skeptic on the dais with me indicated that scientist can't possibly know exactly when and where such things will and won't happen (and he's right). He also insisted that even if warming is occurring, it is impossible to know for sure whether it is mostly or entirely a man-made or nothing more than a natural phenomenon.

That was my cue. I said I didn't think that mattered. I urged people interested in engaging in useful conversation with skeptics to shift their conversations to a discussion of risk -- to talk about risk and risk management. I used the example of earthquakes. We don't need to know for sure whether (where and when) an earthquake will occur to seriously consider taking action to minimize its serious adverse effects an earthquake would cause if it does occur. It turns out, we can require construction standards in new buildings that will protect people from collapsing structures. We can even retrofit existing buildings to make them more earthquake proof (although this comes at a cost). While there doesn't seem to be anything we can do to reduce the odds of an earthquake occurring, there are lots of things we can do (including organizing and practicing emergency relief efforts) to save lives and reduce misery and reconstruction costs when earthquakes do occur. Even if the majority of scientists are right -- that if we don't reduce to 350 - 450 parts per million of CO2 equivalents in the next fifty years the worst effects of global warming will be impossible to correct, we won't be able to reduce greenhouse gas emissions enough over the next three decades to mitigate the effects of global warming. So, given the chance that the many thousands of scientists around the world who study these issue might be right, we could look for things to do that will reduce the disastrous effects if climate change is, in fact, occurring. And, if we could find things that also serve to achieve other laudable objectives (that help almost everyone), why would anyone be opposed to that?

So, I suggested reframing the discussion around what is called adaptation. If we can switch to energy sources that don't involve the burning of fossil fuels, but instead rely on infinite energy sources like sunlight, wind, ocean waves, biofuels and the flow of fresh water, we may be able to simultaneously reduce the adverse effects of climate change (if it does occur), decrease our country's dependence on imported oil and gas, dramatically reduce the health dangers to human beings, minimize the ecological damage caused by air and water pollution and the degradation of surface lands, and create more jobs in our own country. This would be a "no-regrets" response to the possibility of climate change. Similarly, if we can help every household reduce the amount of electricity it wastes (especially at peak times), we can eliminate the need to build new power plants, thereby reducing everybody's electricity rates and saving all consumers money. Even if the risks are not fully predictable, a shift to renewable energy (especially if planned in a way that compensates anyone who suffers any losses in the short term as a result of the shift), would be a more desirable way to proceed. If you think about each component of climate change risk, it should be possible to brainstorm adaptive responses that minimize the chances of serious harm to the public and to the environment while simultaneously improving the economy, and enhancing social well-being. That's what you want to ask skeptics to think about. Ask them to join you in various "thought experiments:"

"Whatever you think the chances are that a buildup of greenhouse gases in the atmosphere is causing global temperatures to rise, and that such increases will trigger a host of dangerous and costly consequences, can we brainstorm cost-effective ways to reduce the harm that would occur if the worst happens and achieve a host of other benefits at the same time?"

Improved emergency preparedness in cities will help if flooding of the sort that occurred in New Orleans happens more often. (Increased storm intensity is one of the presumed effects of climate change.) It will also help cities whether any kind of natural or man-made emergency. Almost every city could do more at a modest cost to update and practice its emergency response procedures.

Investments in expensive transportation, wastewater treatment and other municipal infrastructure should probably be made greater consideration for the possibility of sea level rise, saltwater intrusion into fresh water marshes, and increased storm intensity. It would be crazy to be in a position of having to pay off infrastructure bonds long after a facility is no longer useable because we didn't think twice about climate change risks. Instead, by factoring the risks associated with climate change into infrastructure planning, safer locations or new designs for new facilities might be selected.

As we think about the possibility of a lot more hot days (over 95 degrees farenheit) every summer, what improvements might we make in public and elderly housing that would help people without air conditioning survive? It should be possible to design or retrofit public housing units and to add trees and plantings to keep these units cooler. It should also possible to designate public cooling centers along with ways of helping the disabled get to these locations during a heat wave. Many lives could be saved. These are things worth figuring out regardless of whether anyone is sure that the increase in the number of hot summer days over the past decade was caused by climate change. People died in Chicago two summers ago because of what is now called "the heat island effect."

When you getting into brainstorming sessions with skeptics, avoid asking yes or no questions. Instead ask "when, where and how" questions. How could we reduce certain risks while accomplishing other worthwhile goals? When we have the information in hand, and the public dialogue that follows could look at the full range of costs and benefits (and I don't just mean in dollar terms) what kinds of choices might be made? People with very different views about what climate change science allows us to know might still agree on useful steps to take to reduce the risks associated with climate change because these same activities would help them achieve other things they see as important.

Don't personalize these discussions. Focus on outcomes that would respect everyone's principles. Talk to people you disagree with in the same way you would like to have them talk to you.

Don't paint people into corners by saying something like: "Since science knows Fact A to be true, then you must agree that everyone ought to take Action 1." That will just provoke a counter-attack arguing that there must be someone (somewhere on the web) who disagrees wit Fact A. Moreover, everyone who agrees that Fact A is true will not agree that only Action 1 is the logical thing to do. Instead, ask "Forget for a moment whether Fact A is true or not. What are things that people who don't necessarily agree about Fact A would suggest are worth doing for a variety of reasons?

Overcoming the Not-In-My-Backyard (NIMBY) Syndrome

2010-08-20T05:21:00.001-07:00

National Public Radio featured a story this week about growing opposition to renewable energy facilities, particularly wind power. Wind advocates were asked how they might overcome such local opposition -- dubbed the NIMBY syndrome -- in the future. The spokesperson said, "We've got to get in there earlier and educate people." Wrong! How arrogant! You think people are opposed because they don't understand? No, they're opposed because the "costs" and "impacts" ON THEM are likely to outweigh the likely benefits TO THEM. The only way to overcome the NIMBY syndrome, regardless of the type of facility, is to make sure that the overwhelming majority of people in the area believe that the benefits TO THEM if the facility is built will outweigh the costs and impacts THEY are likely to experience.

Why is this so hard to understand? Facility siting scholarship has been clear about this for almost thirty years. (See O'Hare, Bacow and Sanderson, Facility Siting and Public Opposition, Wiley, 1983.) More than twenty years ago, we figured out how to overcome the NIMBY Syndrome and crafted what we called The Facility Siting Credo (Lawrence Susskind, Negotiation Journal, Volume VI, Issue 4, October 1990, pp. 309-314) ). The Credo was tested nationally against the siting experience in a great many American cities (Howard Kunreuther, Kevin Fitzgerald, and Thomas Aarts, Risk Analysis, Volume 13, Number 3, 1993, pp. 301-318)

Every siting effort starts with a small percentage of people who favor whatever is being proposed, probably less than 10%. These are usually people likely to gain personally if the facility is built, maybe by selling their land directly to the facility developer). And, as Mike Elliott, a Professor at Georgia Tech demonstrated many years ago, an equally small percentage of people usually start out opposed. Typically, these are people likely to bear disproportionate costs -- because they live right next to whatever is being proposed. While there are some people in every community who pay no attention to anything (maybe 10%), the vast majority -- 60% - 65% -- fall into a category called "Guardians." It's what that this middle group does that leads to most facility siting controversies.

We know two things about Guardians (thanks to Professor Elliott). First, if they think a licensing or permitting decision is unfair, they will side with the opponents. And, second, they want to hear whatever the arguments are for and against a proposed facility "on their merits." If believable information isn't presented in an open forum where questions can be asked of experts and proponents in a problem-solving format, they will side with the opponents. NIMBYism occurs when these two facts about Guardians are ignored.

Let me get back to the wind energy spokesperson on NPR. If proponents put out one-sided information to help "sell" citizens on the need for new renewable energy facilities, or try to convince them that there won't be any adverse impacts, that's sure to backfire. The Facility Siting Credo indicates how to avoid these and other mistakes, but I'm just going to emphasize the three most important principles in the Credo (and that are, for the most part, ignored in most facility siting disputes in the United States because proponents are typically way overconfident).

1. Engage in joint fact finding, not one-sided "educational" efforts.

2. Let all the key stakeholders choose a mediator to help manage a consensus building process.

3. Promise to compensate potential "losers" and hold any adversely affected neighborhood harmless.

Most environmental impact assessments are prepared AFTER proponents have committed to build a facility. So, whatever data or forecasts are generated tend to be discounted by opponents as nothing but propaganda on behalf of decisions that have already been made. This is exactly the kind of thing that causes Guardians to side with the opponents. The Cape Wind Project in Massachusetts (the first off-shore wind farm in the United States) has been caught up in what must be the most elaborate regulatory review process in energy facility siting history in the United States. Whatever evidence has been presented by proponents has been countered by opponents. Everyone had made up their minds long before studies of the likely impacts of the facility became available. By the time the formal regulatory reviews took place, it was impossible to get all the parties in the same room for a civil conversation. Maine, however, has taken a different tack. The state has pre-reviewed all possible off-shore wind sites and noted publically those that seem to make the most sense in technical, economic and aesthetic terms. We'll see whether private companies proposing to build in one of these pre-designated and pre-reviewed areas faces the same opposition as Cape Wind. Joint fact finding regarding the likely benefits, impacts and costs of a proposed facility tends to be a lot easier if they take place before a specific site has been selected.

Most public involvement in government decisions in the United States is a joke. Hearings and so-called town meetings offer trivial opportunities for opponents and proponents to make short statements that won't convince anyone of anything. They are all for show. The real battle takes place in the media and behind the scenes as each group does its best to lobby the elected and appointed officials involved.

Only an extended public dialogue, when questions can still be asked and answered before the Guardians have taken sides, is likely to lead to believable analyses of the merits and demerits of each proposed technology, location, design, or mitigation strategy). We know how to do this, but it requires that some of the money that will inevitably be spent on lawyers and litigation be used to pay professional mediators to facilitate authentic problem-solving or consensus building efforts. This is not about public relations (which is what the wind spokesperson meant by "education"). Rather, it's about public learning through joint inquiry facilitated by a professional neutral. Most people don't even realize that such a thing is possible! Not everyone needs to be involved. Mediators know how to manage conflict assessments that can bring the right stakeholders to the table, to work on a jointly crafted agenda, with a range of experts advisors to help them. Such public inquiries can now be made entirely transparent on the web.

Now we get to the third principle at the heart of the Facility Siting Credo. Professor Howard Raiffa and others have written about this extensively. Unless you "hold potential losers harmless" they will oppose anything that is likely to hurt them. If you want to build a new facility in a particular location, there is no question that a small number of people living adjacent to the site will be opposed. Telling them that the "gains" to everyone else outweigh whatever "losses" they might experience -- so they should support the project -- is crazy. It's not rational. And, as Professor O'Hare noted years ago, it is easy for that small number of peole to find each other. And, they have a substantial incentive to try to block the facility. On the other hand, all the potential gainers (who could number in the millions if we are talking about switching from fossil fuels to clean energy) are usually unaware of the rather small gains they are might realize over the long haul. They don't have an incentive to organize themselves.

Iff the gains to the gainers far outweigh the losses to the losers, that's not going to stop the small number of potential losers from trying to block a facility. And, since regulators and public officials don't employ the Facility Siting Credo, they play into the hands of that small group who can easily recruit Guardians by complaining that decisions have been made without them and no one is doing anything to compensate the losers. Instead of 10% opposed, the opposition grows to more than 50%, and public officials have no choice but to fight the project.

Compensation to potential losers is not as tricky as it might seem. Most people haven't thought about the difference between compensation (something good) and a bribe (something bad). Also, compensation doesn't have to take the form of financial payments. A facility developer could promise to remove something that has for a long-time been a problem -- like cleaning up a contaminated site somewhere else in the area if they are allowed to go build their new facility.

A bribe is an illegal payment which people would be embarrassed to have made public. But compensation, awarded based on clear principles that ensure that everyone in the same category is treated equally, is not a bribe. Community benefit agreements (currently being debated in New York City) seek to ensure that everyone in a community will benefit when a new facility of some kind is built. Some of the gains to the gainers (especially proponents who stand to make a profit) are, in effect, taxed (before they go to the gainers) and used to ensure that the small number of opponents who really stand to lose will be made whole. Some gains are also used to compensate neighborhoods or communities who experience real losses so that everyone else in the city or region can benefit. Compensation payments, or compensatory measures to eliminate a problem in the area, ensure that all those who bear disproportionate costs (even small ones) realize some tangible benefit over and above the general benefits that all the gainers will get if a facility is built. Construction jobs, for example, ought to be held for those adversely affected. Property tax abatements (or at least property tax insurance) should be offered to those who live near a new facility. This will hold them harmless against any property value losses caused by the new facility. The key is to ensure that potential losers are fully compensated. This will lead the Guardians to side with the proponents and NIMBYism will melt away.

If there is no way to tax the gainers, and capture some of the benefits to compensate the losers, then the proposed facility is probably a mistake -- its either in the wrong location, using the wrong technology or being proposed at the wrong time.

Now, there are some opponents who just don't care what they are offered or what their neighborhood is offered (and, again, I'm not just talking about money). They oppose a new facility for ideological reasons or because they just don't want things to change. In real life, when the Facility Siting Credo is followed, the folks in this category (ideological opponents) are a very small minority (fewer than 5% of the total population of a community or region). Elected and appointed officials (and courts) who see that every effort has been made to use some gains to compensate losers and make the host community whole (through an open problem-solving conversation managed by a professional mediator) are not likely to block what 95% of the community supports. So, the trick is to get the Guardians to side with the proponents.

Please, no more whining about NIMBY. Just adopt the Facility Siting Credo and run the process the right way.

Helping Decentralized Organizations Negotiate More Effectively

2010-07-30T07:22:00.001-07:00

Suppose you represent a geographically disbursed organization with units, centers or key individuals spread out all over the world or across a large region. Think in terms of multinational corporations with offices in five or six countries; or, the US military with outposts in every corner of Afghanistan; or, an international environmental NGO with branches in various parts of the globe. For these organizations to be able to negotiate effectively, their people need to be able to put their hands on information in a timely way, get reactions from other parts of the organization to proposals raised during negotiations, and find out all that they can about how the organization has handled similar negotiations in the past.

Networked communication is important to successful negotiation for at least three reasons. First, the experience of one "node" can be of great help to another "node," especially if the lessons learned by one can be quickly and accurately shared with the others. Second, some negotiations undertaken by one node might hinge on the direct involvement of the other nodes. The sales staff in Europe, for example, might be negotiating a contract that it needs the sales staff in Asia to be part of. Or, the soldiers in a northern outpost, negotiating with a group of locals for the first time, may want to hear from other outposts that have negotiated with the same group elsewhere in the country. Finally, the African branch of a global NGO might be meeting with the subsidiary of a multinational that its European counterparts have dealt with before. Effective organizational negotiation depends on being able to tap past experience, build on lessons learned, and keep relevant organizational deadlines, goals and protocols in mind. Third, possible deals often emerge during a negotiation that were not considered beforehand. This means that permissions, or at least reactions, must be sought from other parts of the organization before a final commitment can be made.

Even with the recent cumulation of on-line tools, particularly those offered by social media sites like Facebook, few if any organizations have networked negotiation support systems in place. There are, to be sure, software packages that individual negotiators can use to remind themselves how they should prepare for a negotiation or how to evaluate proposals that emerge during the give-and-take of an ongoing negotiation; but these are intended as instructional devices to help individuals negotiate more effectively. They are not designed to help decentralized organizations pull together everyone and everything that needs to be integrated more effectively.

The MIT-Harvard Public Disputes Program, in conjunction with the Consensus Building Institute and Adroit Productions, LLC, is in the process of formulating design specifications for an on-line negotiation support system to help decentralized organizations shore up their negotiating capabilities. Such a system will have to be really easy to use -- as easy as Facebook. This means that once the system is place, no one will need to do any programming, although user will undoubtedly want to be able to customize the look and feel of their network. The system must be secure. If the military is using it, they must be certain that no one is eavesdropping. So, we are not talking about a traditional web site (but rather something known as a "walled garden"). Networked participants involved with such systems will probably need incentives (and clear instructions) from the top of their organization to require them to keep track of what's going on in important negotiations. And, they'll need uncomplicated, pre-made templates to to their reporting. (Something as simple as thumbs up or thumbs down would be nice.) The results of past negotiations will have to be stored, tagged and easily accessible to multiple users with very different needs. I'm talking about a learning system (not an expert system) that adapts and generates new insights automatically as additional patterns emerge or as users think of new questions they want answered. The same systems will need to support real-time coaching as well as "hot lines" for anyone who needs emergency negotiation advice. Users will probably want quick access to a library of published descriptions of "best practice."

We think it will be relatively easy to build an organizational learning platform that can do all these things. What we need now are a few decentralized organizations ready to pilot test something like this. (N.B. Pilot tests won't be meaningful if top leaders doesn't get behind the idea; and, they'll have to stay with it for a while.) Whichever organizations jump in will have to open themselves up to evaluation and review. That's the only way we'll be able to evaluate how the system is working and figure out how to improve it.

Are you part of a networked organization that wants to improve its organizational (not your individual) negotiating capabilities? What kinds of negotiation information, advice and assistance does your organization need its on-line system to provide? Do you have stories about the obstacles your organization inadvertently puts in the way of its own negotiators? We are eager to hear about additional design specs we should keep in mind.

Is there an organization out there that has already put such a negotiation support system in place?

Mediation As Problem-Solving

2010-07-08T06:12:00.001-07:00

The Organizational for Economic Cooperation and Development (OECD) is trying to hold multinational corporations to appropriately high standards of corporate social responsibility. OECD member states include thirty of the major economies of the world. Ten years ago, they adopted guidelines regarding human rights, environmental protection, the rights of workers and child protection. Now they are in the throes of a ten year review. Every member country has appointed an NCP -- a National Contact Point -- to investigate claims that multinational corporations headquartered in their country, or their subsidiaries wherever they might be located, have violated the guidelines. The NCPs have investigated as best they can (often with very limited staff and budget). The assumption is that being called out by a national government will push multinationals to correct whatever guideline infractions they or their subsidiaries may have committed. Unfortunately, it has been hard for the NCPs to complete many of the needed investigations, particularly those filed by unions or NGOs in far off corners of the world. On some occasions, NCPs have not found sufficient evidence that the guidelines have been violated, but there are clearly circumstances that needed attention. At a recent meeting of all the NCPs and some of their constituent organizations (including their Trade Union Advisory Group, their Business and Industry Advisory Group, and OECDWatch) the NCPs were reminded that their goal should be to rectify inappropriate practices, not just determine whether the guidelines have been violated. More generally, the NCPs were urged to step back from their adjudicatory (or investigatory) efforts and build their problem-solving capabilities. In particular, they were urged to take their mediation mandate seriously.

I am very supportive of a "problem-solving" view of mediation. In too many situations, mediation is viewed as the last step in adjudication (i.e. when impasse has been reached), rather than as the first step in a collaborative effort to head off a problem or work out a creative solution. When a complaint is filed, an NCP must determine whether the charges should be taken seriously. It sometimes does this by asking its national embassy to "make inquiries" about the reputation of the company against whom a complaint has been filed. Then, it might follow up with a call to the company and ask for "its version" of the story. In short, the NCP tries to determine whether the company has, in fact, violated the OECD corporate social responsibility guidelines. They proceed this way because their primary goal is to determine the legitimacy of the claims that are brought. If, however, the NCP's goal were to correct inappropriate practices or implement appropriate remedies, it might, instead, select a qualified mediator -- located in the place where the infraction presumably occurred -- to meet informally with the relevant parties and see what might be worked out. The more informal the interaction, the less likely the parties are to overstate their claims or react defensively. If such problem-solving fails, the NCP can always revert to its investigatory role.

If you were a company accused of violating OECD guidelines, wouldn't you prefer to meet privately with a neutral party (who would keep what you said confidential) than to have to defend yourself in a public way as an official investigation gets underway? From the standpoint of preserving your corporate image, mediation is certainly preferable. If you were a trade union or an environmental NGO concerned about the actions of a company in your area, wouldn't you prefer to have a professional mediator bring everyone together to respond to your concerns than to wait a year or longer while an invisible agency (often in another part of the world) determines whether OECD guidelines have been violated and then writes a report?Adjudication in the absence of enforcement (and that is the situation in globally) won't guarantee change. Mediation leading to voluntary agreements will almost always guarantee compliance with whatever has been worked out.

Mediation as problem-solving requires three things: (1) a willingness on the part of all the relevant stakeholders to work together to resolve the problem or deal with the situation; (2) the availability of a trusted "neutral" with sufficient knowledge and skill to manage difficult conversations; and (3) an agreement on procedural ground rules (i.e., confidentiality, timetable, agenda, good faith effort, etc.). OECD and its NCPs are seriously considering emphasizing problem-solving mediation in the years ahead.

Make Compensatory Payments in the Gulf Coast NOW!

2010-06-02T08:04:00.000-07:00

We need not wait for a lawsuit or even a federal investigation to start doing something to help the thousands of victims of the oil spill in the Gulf region. The Obama administration should appoint a special master, someone with the same credibility and mediation skill that Ken Feinberg had when he was appointed to administrator the 9-11 Fund. There are many skilled mediators with the experience to oversee the allocation of large compensation funds to thousands of claimants following a court decision regarding corporate liability for an accident or a disaster. In this case, since BP has already indicated that it accepts responsibility for what has happened, it makes no sense to wait.

Once the Oil Spill Master has been appointed, BP should make a payment of at least $2 billion into a Compensation Fund. This could be administered by any one of several large foundations at no or very low cost. Any commercial enterprise that has been adversely affected by the spill (or the failed efforts to clean it up) need only produce a record of what its revenues were during this same period last year and sign a statement indicating that it is unable to operate normally because of the spill, and it would be eligible for immediate aid. The funds would take the form of a non-taxable gift from the foundation. The Special Master and his or her staff would allocate compensation funds to make up for real losses (not emotional distress or punitive damages). Everything allocated over the next six months could be incorporated into whatever the court's final tally is regarding BP's liability and penalties. In the meantime, this would keep the economy of the region alive, protect those at the bottom of the income scale, and allow quick action to protect sensitive environments.

I realize that the Special Master and his or her staff would have to be on the lookout for fraudulent claims, and this would take a little time. But the Special Master could employ private investigators and hold anyone receiving funds criminally liable for any fraudulent claims they might make.

Government agencies could apply to this Fund for money to undertake independent clean-ups of beaches and environmentally sensitive areas along the cost. They might even apply for funds that coastal cities and towns could use to undertake clean-ups. The Special Master would probably need to create a small science advisory committee (calling on university scientists in the region) to quickly review proposed clean-up plans. Since these are not, for the most part, technically complex, the Special Master would only need to determine whether responsible and capable parties had been selected to undertake the clean-ups.

Environmental organizations and industry trade groups might also be allowed to apply to the Fund if they could put together a plan that convinces the Special Master that the money they are requesting will be used to (1) create jobs for those whose livelihoods are immediately threatened by the BP disaster; (2) take short term clean-up actions that will protect fragile environments and threatened species; (3) take short-term actions that will keep the regional economy alive.

By all accounts, BP will eventually owe upwards of $20 billion. So, handing over to a federally-appointed Special Master one-tenth of that amount will hardly affect whatever court battles are to come. The Exxon Valdez penalties (of $6 billion) were ultimately cut in half by higher appeals court. None of that money was allocated for decades after the disaster because of the drawn-out legal appeals process. Those who needed the help the most got nothing in the short term.

Let's not wait for a court decide what BP's liability is. I don't think the company will in any way risk extending its liability by offering to put up $2 billion (less than half of its regular monthly profits) before any court makes a decision about the scope of responsibilities. In fact, a preemptory move of this kind would probably enhance the company's standing in the eyes of the court and in the eyes of the public. The longer we wait to take compensatory action, the more extensive the damage will be.

Who Will Guarantee the Safety of Off-shore Oil and Gas Facilities?

2010-05-30T15:51:00.000-07:00

In 1979, following the accident at Three Mile Island a special commission appointed by President Jimmy Carter recommended that the nuclear power industry take responsibility for setting industry-wide safety standards and ensuring safe operations at all nuclear facilities in the United States. This led to the creation of the Institute for Nuclear Power Operations (INPO), a not-for-profit organization supported by the nuclear industry, but with an accountable board of directors. INPO conducts evaluations of all nuclear power plants every 18 - 24 months. Each evaluation generates a rating of 1 - 5. Any plant with 4 or 5 ratings has a relatively short time to make the necessary safety improvements, or it stands its liability insurance (without which it would have to shut down). INPO trains and accredits the managers of all licensed nuclear facilities in the United States. It undertakes independent evaluations of any "events" and makes sure that its findings are circulated quickly throughout the industry so that the same mistakes are not made again. INPO provides assistance to individual plant operators when they are not sure how to handle particular problems. An adverse INPO finding usually leads to a rapid turnover in corporate leadership. We need something similar, now, to guarantee the safety of off-shore oil and gas exploration and production.

The Nuclear Regulatory Commission oversees licensing. And a variety of other federal and state agencies still have regulatory oversight over various aspects of nuclear power plant operations, but the existence of INPO means three things: (1) the industry, rather than individual companies, are responsible for policing all facilities on a regular basis -- the leaders have an interest in bringing the laggards along; (2) industry operators have no excuses when they are out of compliance -- there is no way to blame regulators who don't understand their problems; and (3) the Boards of Directors of individual companies, when confronted by low INPO ratings, have no choice but to take action if they want to stay in business. While INPO does not publicize its ratings, it is almost impossible for the owners of individual facilities to keep these assessments secret. The top managers of several companies have been swept out in response to low INPO ratings. The system works. There hasn't been another accident since Three Mile Island.

While I might normally argue for a more diversified INPO Board of Directors (i.e. with university or appropriately qualified NGO members), the INPO Board seems to be getting the job done. The Board is made up of the most highly recognized business leaders. They have every incentive to make sure that we never have another off-shore accident again -- their individual reputations and their company reputations are on the line. An INPO-like system for Off-shore Oil and Gas would make sure that appropriated trained people were managing each site, tough safety and risk management standards reflecting best practices were in place, constant surveillance of all facilities was always underway, complete transparency at site was assured, and serious penalties were in place that the whole industry rather than individual operators were obliged to enforce. A new risk management system like this would not infringe on the role of regulatory agencies that must still take the lead in licensing. In my view, the existence of a parallel industry-wide oversight effort would make the regulators' job easier, not harder.

In the current BP disaster, it sounds like federal regulators felt they didn't have the expertise to second-guess the plant operator with regard to when and how to test the safety equipment. Or, in the worst case, the regulators were intimidated by industry leaders or subjected to back-door political pressure from the states that depend on oil and gas revenue. In either case, the creation of an INPO-like organization to oversee the safety of off-shore oil and gas facilities would eliminate the prospect of case-by-case manipulation of standards or delays caused by funding short-falls at the federal level or any kind of political pressure.

Whatever the costs are of setting appropriate safety standards, training (and re-training) all the facility operators, inspecting every facility on an annual basis, and undertaking independent analyses of all accidents or near-accidents, they would be borne by industry. Facility owners would have no choice but to pay attention to the INPO-like rankings they receive every year, and stockholders would demand that their Boards of Directors respond. It is important, of course, that share holders keep their Boards' feet to the fire. Perhaps we need national legislation to ensure that all licensed off-shore facilities have adequate liability insurance. Then, the insurance industry could be put on notice that they must cancel the policies of any facility that doesn't maintain a 4 or 5 rating, or does not raise a low rating quickly enough.

The risk management system in place for off-shore oil and gas facilities is more or less the same as it was when the Santa Barbara oil spill occurred decades ago. Let's not wait for another national commission to investigate the details. Let's create an INPO-type system to guarantee the safety of oil and gas exploration and operations right now.

Mediating Values-based and Identity-based Disputes

2010-04-08T17:32:00.000-07:00

Mediating Values-based and Identity-based Disputes

Lawrence Susskind

The Frank Sander Lecture at the Alternative Dispute Resolution Section Meeting of the American Bar Association (San Francisco, April 8, 2010)

The labor mediators in the room can explain how and why the United States has a dispute resolution system, mandated by law, for resolving collective bargaining disputes. When the public interest is threatened by a strike, the parties can be urged to come to the mediation table. There are other professionals in the room who can explain how and why commercial disputes are mediated or arbitrated – usually because specific contract provisions mandate such action. Today, no one is surprised if a labor dispute or a commercial dispute goes to mediation. The parties and their lawyers know these systems work. And, no one doubts that appropriately trained neutrals will be available– regardless of how many strikes we might have or how many commercial disputes need attention. And, the enforceability of mediated agreements in such cases is well established.

There are other arenas, some less well understood by the public, in which mediation is an option. In small claims courts all across the country, private parties use mediation to resolve tenant-landlord, neighbor-to-neighbor and other two party civil disputes. At the federal and state levels, when new regulations have to be issued, federal and state agencies have the option of initiating negotiated rule-making under the relevant federal and state Administrative Procedure Acts. Professional neutrals, selected by the agency with the regulation-writing responsibility, bring the right parties to the table and assist in generating a draft of the required regulations. Again, appropriately trained neutrals are available to assist. The status of such negotiated agreements – whether in small claims court or in the federal regulatory arena – is circumscribed in law or in the relevant codes.

Why is it we expect these four kinds of dispute resolution processes to “work?” Why are we confident that adding a mediation step will produce beneficial results? Presumably, we wouldn’t advocate mediation if it didn’t generate agreements that satisfy the parties, cost less, take less time, and enhance working relationships . But, why exactly do we think mediation helps? It is not magic. There is a logic to our efforts. I think that logic goes like this: (1) for the most part, disputants know what they want (that is, they know their interests), they have analyzed what is most likely to happen if no agreement is reached; that is, they know their BATNAs, and they want to do better than that; (2) even if they sometimes exaggerate their claims during the give-and-take of negotiation (making demands far in excess of their BATNAs)-- or hiring agents to do that for them -- they are eager to see what can be worked out without extending a strike, proceeding with litigation, waiting for a judge to rule or engaging in a full-blown political battle; (3) after some huffing and puffing they usually discover whether there is a zone of possible agreement (somewhere between their BATNAS or what negotiation analysts call their Reservation Values) and if there is, they can usually craft an agreement and are wiling to be bound by it; (4) the mediator can be counted on to help the parties clarify their interests, explore mutually beneficial trades, generate a written agreement, encourage the parties to be reasonable, and serve as a witness to what has been worked out. The LOGIC of mediation rests on three assumptions: (1) the parties know their interests; (2) when interests are in conflict, ingenious ways can be found to reframe, bundle, fractionate, or otherwise trade bits and pieces of what the parties want to produce workable agreements; and (3) the parties (and/or their lawyers) will be logical, if not reasonable; that is, they won’t turn down agreements that are better for them than no agreement.

The question I want to address today is whether the same logic of mediation applies when we are talking about disputes that involve deeply held values or beliefs (not just interests) and when identities (not just interests) are at stake. For the past several years, with colleagues at the Program on Negotiation at Harvard Law School, I have been trying to answer this question. I want to share with you my findings thus far. (You can read more by googling the Clearinghouse at the Program on Negotiation -- www.pon.harvard.edu/clearinghouse -- and downloading a paper entitled “Teaching About the Mediation of Values-based and Identity-based Disputes.”)

Let me start with three quick illustrations. These are stories based on real cases that have been prepared as role play simulations available through the PON Clearinghouse. They deal with disagreements over incorporating the issue of homosexuality into a public elementary school curriculum; a diversity campaign in a corporate workplace that pressed employees to be respectful of homosexual co-workers; and a dispute over a gay rights celebration in a public park and a city’s efforts to ensure freedom of expression to those who wanted to protest the celebration. These three conflicts provide a useful basis for distinguishing between the usual logic of mediation and a somewhat different logics that I think might be more relevant when values and identity rather than interests are at the heart of public and private disputes.

The three cases I’m about to tell you about were not actually mediated, although I think they could have been. The participants, and especially their lawyers and the judges in the courts in which these cases were filed, did not think mediation could help. If you play the “games” based on these cases, you’ll see otherwise.

The first dispute is between a public school system and two parents over classroom discussion and the distribution of materials depicting same-sex couples. It also explores the role of attorneys representing clients in negotiations involving deeply held values and beliefs. The family wants the school principal to notify them ahead of time whenever homosexuality, same-sex marriage or families headed by same sex couples might be discussed in class. They want their children to be excused from such discussions. The school principal has denied their request.

The family has filed a lawsuit against the school district in state court asserting their parent rights to have their children excused when parts of the curriculum conflict with their religious beliefs. The judge in the state trial court resolved the legal question in favor of the school district, holding that parents do NOT have a right to restrict what a public school may teach their children. The simulation begins at the point at which the family has filed an appeal of the lower court’s decision. Prior to oral argument, the appellate court has urged the parties to try mediation (in the game, that is, not in real life!)

The second dispute focuses on a disagreement between an employee and a large, privately-held software company called MacroB. In this situation, the employee was a senior project manager stationed at the company headquarters in California. A dispute arose when the company launched a diversity campaign featuring a series of posters, including one that read “I’m gay and I work at MacroB.” The posters were placed in highly visible locations in the workplace, including one on the exterior wall of the employee’s cubicle. This person is devoutly religious and from a faith tradition that believes that homosexuality is sinful. In response, the employee posted several Bible versus on the inside wall of their cubicle including quotations condemning homosexuality and predicting dire outcomes for anyone engaging in homosexual acts. When asked by management to remove the Bible versus, the employee refused. The issue moved up the ranks. The employee was given a week off with pay to reconsider. While they were away from the office, MacroB removed the Bible versus. Upon returning, the employee reposted all the Bible passages and refused to remove them. In the game, at the urging of a legal professional known to both sides, the company and the employee agreed to meet with a mediator (again, this is what happens in the simulation, not in real life).

In the third dispute, two private organizations and a city got into a dispute over the speech rights that would or wouldn’t be guaranteed in conjunction with a permit for a festival on city property. A local advocacy organization that supports the city’s sizeable lesbian, gay, bisexual and transgender (LGBT) community has organized a day-long, family-oriented event called the Outfest to celebrate National Coming Out Day and to affirm LGBT identity. In addition to drawing large, supportive crowds, the event attracts members of the public who opposed the message of the Festival and LGBT lifestyles in general. One group called Salvation Now! is a nationwide network of grassroots religious and social campaigners seeking to bring their religious message directly to those they consider to be living sinful lifestyles. Local Salvation Now! organizers were a regular and increasingly visible presence at the annual OutFest. In the past, they have arrived at the OutFest, megaphones at the ready, broadcasting messages that many at the Festival found offensive and hateful. The organizers of the event had readied a human buffer of numerous volunteers prepared to shield the crowd from the protesters. The volunteers carried massive signs to block the signs of the protesters. They blew whistles to drown out the megaphones. As tensions mounted, the police arrested several Salvation Now! members for refusing to follow police instructions and disturbing the peace. Although these criminal charges were eventually dropped, the confrontation damped the festival atmosphere and attracted unfavorable media attention to the city and the Outfest. The following year, fearing escalation as well as legal liability and court challenges, the city requested a meeting with all parties and their lawyers to talk about possible ground rules before they agree to grant a new permit. (At least, that’s what happens in the simulation. There was no effort made to mediate in the real life story.)

Why weren’t these cases actually sent to mediation? Probably because almost everyone involved presumed that no resolution was possible. The fights were about fundamental value questions and presumably neither side would be willing to soften its demands. Feelings of anger, aggression and hurt abounded. Each side assumed they were in the right and that the others had acted inappropriately. The parties in each case felt there was a great deal at stake. Indeed, in several of these disputes, national organizations quickly appeared to offer free legal services up to and including representation “all the way to the Supreme Court.” So, symbolic issues took on great importance.

To the courts involved, and presumably to the parties as well, there did not appear to be any way to resolve these disputes except to let the courts decide which principles would reign supreme: Do parents have the right to tell the public school what it can or can not teach their children? Yes or no? Does a private company have the right to impose a diversity code that forces its employees to refrain from expressing deeply held religious view that might be hurtful to others? Yes or no? Does a city have the authority to impose restrictions on free speech (especially what some consider to be hate speech) in public spaces? Yes or no? And, several of the partisans in these battles didn’t just want to settle these specific cases, they wanted to set highly visible national precedents.

Let me describe the four ways in which I believe mediation might have been useful in these cases and in other disputes like them. The logic to which I appeal in each case is what is most important. I think the logics are relevant regardless of the facts of each case. The question for you to consider is whether, as dispute resolution professionals, these alternative logics fit with your sense of your role and your responsibilities.

1. Consider interests and values separately: That is, try to separate a values-based or identity-based dispute into a more traditional interest-based segment and then help the parties deal with that portion of the dispute in the “normal” way. Maybe it will make it possible for them to take on the values-based portion at a later time.

2. Facilitate dialogue and offer opportunities for deeper mutual understanding and relationship building. Instead of aiming to resolve the dispute, help the parties understand and respect the views of their opponents and, most of all, help them avoid demonization. Again, maybe this will create a different climate in which something approaching more traditional settlement will be possible at a later time.

3. Appeal to overarching values: That is, reframe such disputed by appealing to values that the parties might share rather than focusing on the conflicts that precipitated the dispute. By referencing universal values – for example, equal rights, freedom or non-violence – a mediator may be able to help the parties find common ground. Recognizing common values can open lines of communication, build trust and otherwise improve relations. They may also be a springboard to inventing ways of living and working together more effectively. So, this is an approach to seeking settlement, but it attempts to work around the value differences.

4. Confront value difference directly: Help the parties confront their differences in a controlled fashion and help them explore and question each other’s values with the goal of possibly altering beliefs. Success in implementing this approach will result in at least one of the parties making a change in his or her values and or self-perceptions. There have been occasions, although they are limited in number, when groups with diametrically opposed values and identities have, through the therapeutic effects of truth-telling, cast aside generations of hatred or mistrust and moved into the long slow process of reconciliation. One need only look at all the many divided countries and cultures around the world (like South Africa and Northern Ireland) to see that transformation and reconciliation are possible.

Let me say a bit more about each of these approaches:

Let me use the school case to illustrate why it might be valuable to separate the portions of a dispute concerning interests and values. While the case was making its way through the courts, the children involved became victims. The children of the family that brought the lawsuit became the targets of bullying on the playground and the family was socially ostracized. Might it have been possible to address these aspects of the dispute while allowing the larger policy question to be addressed in some other way? Mediation, in this case, could have been used to resolve a portion of the dispute that dealt with both shared and conflicting interests.

Mediation can be used to try to alter relationships among disputants while not resolving their underlying value dispute. In the workplace case, it is hard to believe that the parties could not find a way of de-escalating the conflict and accommodating opposing views. One of my students suggested, since the underlying disagreement was about corporate pressure to ensure diversity, that the company add still another posters saying something like “I believe in traditional Christian values and I work at MacroB.” The issue of learning how to help employees with radically different social values live together was never addressed in the actual case. Mediation could have offered this possibility.

Reframing a dispute in terms of overarching values the parties might share is a form of resolution, although it requires a restatement of the problem the parties are being asked to solve. In our efforts to imagine what mediation of the Outfest case might have come up with, my students imagined a face-to-face meeting involving the festival organizers, the Salvation Now! leadership -- both their lawyers -- and the city government. My students played out what a mediated discussion aimed at generating jointly agreed upon guidelines that would please both the Outfest organizers and the protestors might look like. In several mock versions of the mediation, we were able to formulate a local ordinance that would increase the odds of accommodating both sides and meeting the city’s concerns.

Mediators aren’t therapists, but it does take a kind of therapeutic engagement to help parties confront others with diametrically opposed and deeply-held values and beliefs. On the other hand, it may be a mistake to assume that values are immutable. People may think they know what they believe in a general way, but there appears to be more room that we first imagined when it comes time figure out how their beliefs will be applied in a specific situation. It may be correct to assume that people engaged in value or identity-based disputes won’t agree to compromise, but other forms of accommodation and reconciliation are still possible. I think that the dispute resolution community has given far too little thought to the logic of reconciliation. When we think about the divided societies that have managed to build workable peace after decades or even generations of bloodshed, we have to be encouraged.

Finally, when I imagine applying the logic of reconciliation to the health care town halls held last summer or the current debates about climate change, immigration or abortion, I see new possibilities. Imagine something along the lines of the Negotiated Rulemaking process we now take for granted. A neutral selected by a joint committee of Congress (perhaps in conjunction with the Executive Branch) would engage in one or more of the mediated approaches I have described this morning. This would take place within a given time frame with the help of a team of mediators. It might be televised or streamed live on the web. This could happen at the national level or at state or local levels. The mediation would seek to achieve one or more of the four outcomes I have described: (1) separate interests and values and try to generate agreement on the interest-based portion of the dispute; (2) facilitate dialogue in the hope of achieving deeper mutual understanding and productive working relationships, (3) appeal to overarching values and find some accommodation; and 4) confront value differences directly and seek reconciliation. The results in each case might not look or feel like a more traditional settlement. However, in the way that the results of a negotiated rulemaking constitute a proposal that the agency with the relevant statutory authority can use as a basis for the rule it must formally issue, a little progress on values-based and identity-based disputes may be all we should hope to achieve.

Imagine that prior to Congressional deliberations on legislation, or prior to issuing executive orders, a mediated negotiation were to take place. A preliminary conflict assessment would be required to bring a manageable number of appropriate stakeholder group representatives to the table. The kind of deliberative poll that Jim Fishkin at Stanford advocates might be used to bind these ad hoc representatives to the views of their constituencies, at least at the outset. I firmly believe that these views are malleable, especially in response to an organized effort to promote reconciliation.

CONCLUSIONS:

1. Mediation can, in fact, be helpful when parties are engaged in what are primarily values-based or identity-based disputes. I don’t think the usual problem-solving logic of mediation, however, necessarily applies. There are other logics that can, in fact, be helpful.

2. These alternative approaches to mediation need to be institutionalized so people don’t spend all their time worrying about how to proceed. We need legislation to spell out how this might work – a parallel to the National Labor Relations Act or the Negotiated Rulemaking Act. Formal experimentation ought to precede the development of such legislation – just as we did with Negotiated Rulemaking.

3. Mediators may have to learn some new ways of working, and we may have to develop a roster of mediators qualified to take on these types of disputes so the parties don’t waste their time trying to find appropriately-skilled help.

4. Judges will surely need to be educated about these alternative mediation logics. We’ve got to convince the courts that something short of comprehensive and traditional notions of settlement may be the most desirable outcome in certain kinds of value-based and identity-based disputes.

5. It is important that our profession establish a working group to dig into this question and decide what posture it wants to take on the question of mediating values-based and identity-based disputes.

6. Finally, it would help if the research community would document the logics of various dialogue groups that have been working on reconciliation for a long time, like Justice Circles that focus on restitution rather than retribution.

Many thanks for listening. And, my thanks to many of you in the audience whose work on peace-making, reconciliation, and dialogue has given us so much to build on.

NOTE: My attention was drawn to the three cases (on which the role play simulations are based) by Professor Jennifer Gerarda Brown. In a forthcoming article in the Iowa Law Review she argues for mediation in cases that pit gay rights claims against religious liberty claims. You can find her paper here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1578286 “

Getting Agreement on Energy Policies and Plans

2010-04-05T03:24:00.001-07:00

Energy planning ought to be about avoiding problems and seizing collective opportunities. Cities (and nations) have problems when there is not enough energy available at a reasonable price. And, if they could get their act together, cities, regions, states and countries could reduce wasteful patterns of energy use and take advantage of "greener" energy production technologies that reduce costs of all kinds --especially environmental cost -- and increase energy independence (i.e. reducing our dependence on "foreign" oil). Energy planning is about figuring out the best way to match energy supply and energy demand in sustainable ways. It gets complicated, though, because different groups have their own ideas about (1) the desirability of relying on various sources of energy; (2) the desirability of relying primarily on markets to set prices, encourage technology innovation and meet long-term needs, and (3) the appropriateness of allowing some groups and countries to tightly control certain energy supplies. In the final analysis, negotiations at the international, national, state, regional and local levels determine which energy supplies are available and what price we pay to meet our growing demand for electricity, transportation, home heating, and economic production.

Imagine a pie chart that shows the composition of our current energy supplies. We can do this at any scale. Let's think about the country as a whole. Coal, oil, natural gas, nuclear energy, renewables (like solar and wind power), and a few other sources each constitute a wedge. A similar-sized pie chart shows how we use energy: industrial uses, residential uses, transportation, commercial uses, and the like. Supply and demand must be in balance in the sense that we can only use what we are able to find and pay for.

If you ask what the supply and demand pie charts will look like at a certain point in the future, say 10 years from now, there is no correct answer. Different groups will prefer a different mix of energy supplies and want to reshape energy demand, either because a shift will benefit them directly or because they are committed to improving the net overall impact on society in some way. One thing is for sure, though, experts can't tell us what the pie charts ought to look like. We have to make those decisions for ourselves.

If it were up to you, how would you want to alter the pie charts for the United States? The current supply is made up of about 29% coal, 16% oil, 31% natural gas, 12% nuclear, and 11% renewables (including hydro). Current demand includes 30% industrial, 22% residential, 28% transportation, and 19% commercial. The overall price of energy is just over 9 cents per kilowatt, although not everyone pays the same price. The environmental costs of current energy use and production are hard to calculate. Sometimes these are framed in terms of impacts on public health: x people die or get sick each year from diseases associated with pollution of various kinds caused by energy production and utilization. Increasingly environmental costs will be framed in terms of what we would have to spend to artificially do the work that ecosystem do naturally like filter air and water or convert CO2 to oxygen. These are called ecosystem services and we can price them.

Any change in the overall size of the "pie" will effect certain groups -- either changing the price they have to pay for a unit of energy, redistributing job opportunities, reshaping environmental costs, or altering the balance of power in the world. Someone's got to pay for investments in new technology if we want to grow the pie or change the size of a supply or demand wedge.

Efforts at present, at the city level for instance, to change the pattern of energy supply and demand include (1) reducing the amount of energy used by municipal governments; (2) encouraging individual homeowners and businesses to conserve energy and reduce their carbon footprints; (3) encouraging more energy efficient patterns of land use and development, and (4) looking for ways to encourage more sustainable electricity production (through re-use of brownfields for renewable energy, building trash-to-energy plants and the like). In a big city, these can have a noticeable effect. Overall, though, states and national governments will have to get involved or the larger pie charts won't look very different in the future than they do now. In recent years, states have begun to require that at least 20% of the electricity produced within their borders come from renewable energy sources by 2020 or 2030. We'll see whether these provisions are enforced. If they are, the size of the renewable energy wedge could double in the national supply chart.

Unfortunately, we don't have proper forums in which we can work out agreements on how existing supply and demand pie charts should look in the future. Congress has never faced this issue directly; preferring instead to make incremental decisions about whether to subsidize one form of energy development or not (often, at one location at a time). As a nation, we have not set supply or demand goals; instead, we have just bumped along. As I mentioned, states have been trying to encourage investment in cleaner forms of energy production, but they are limited by the grid -- the system of power lines that allows energy produced and stored in one location to be "wheeled" to other locations as demand ebbs and flows. We need a national plan to expand and modernize the grid. We also need to figure out how to store and distribute highly distributed forms of (renewable) energy. We need to decide whether we are going to maintain or increase our reliance on nuclear energy even if we don't have a plan for storing high level nuclear waste.

If states try to change energy efficiency standards or subsidize new forms of energy production, they end up competing with each other. Localities are even more highly constrained. They can improve energy efficiency in public buildings, increase the efficiency of the municipal bus fleet and work with building owners to encourage retrofits that reduce the demand for energy. They can also urge residents to use less energy. But, most are not about to get involved directly in producing energy on their own. If we allow more drilling, maybe we can increase our reliance on oil and gas. But, how do we do that and decrease greenhouse gas emissions at the same time? Can we assume that technology innovation (i.e. clean coal technology or carbon sequestration) will resolve that apparent conflict?

What would it mean to create national, state and local forums in which we could negotiate agreements regarding the changes we want to achieve in the current supply and demand pie charts? At each level, we would have to bring together representatives of all the relevant interests groups, engage in joint fact finding (with the help of appropriately qualified experts), formulate comprehensive agreements regarding five, ten and twenty year objectives and commit to appropriate implementation strategies. These conversations would not be easy. It is hard to formulate overall "packages" that will leave everyone better off. Discussions of this sort need to be mediated by qualified consensus building professionals. At the national level, the Department of Energy could take the lead (in cooperation with the appropriate Congressional committees) but a great many other groups would have to be involved. At the state level, governors and legislative leaders could convene appropriate consensus building efforts, but first we would need to figure out how to define the scope of state energy policies and how they fit within certain national decisions. In every city, broadly-representative working groups would need to consider possible changes in their supply and demand objectives within the framework of state and national plans. Final decisions would be made, of course, by those with the legal authority to make them, but to ensure implementation, the trade-offs and shifting distribution of gains and losses would need to have broad political support.

In the end, energy policies and plans are political choices that ought to reflect the best possible scientific, economic and engineering inputs. Our traditional approach to making public policy -- careening from one crisis to the next -- won't produce the interlocking decisions required. We need to commit to a consensus building approach to energy planning.

Collaborative Rationality

2010-02-20T16:26:00.000-08:00

In their extraordinary new book, Planning With Complexity (Routledge, 2010), Judith Innes and David Booher make the case for a new way of knowing and deciding. They call this new approach collaborative rationality. Instrumental rationality -- the traditional way of making the case for what needs to be done and why in the public arena -- has given way to collaborative approaches to generating and justifying decisions. Innes and Booher point to negotiation theory as the foundation for this approach and use complexity science to explain why it works. They have nicknamed their theory DIAD because it builds on Diversity, Interdependence and Authentic Dialogue. Anyone who works in the public policy arena needs to know what Innes and Booher have to say about collaborative rationality.

Diversity

Complexity science says that complex adaptive systems need to involve large numbers of individual agents connected through multiple networks. These agents interact dynamically, exchanging information. Even if some agents only interact with a few others, the effects of these connections ripple through the system. As a result, the system has a memory that is not located at a specific point, but is distributed throughout the system. There are many direct and indirect feedback loops; the overall system is open. The behavior of the system is determined by these interactions, not the components; and the behavior of the system can not be understood by looking only at the components. Complex adaptive systems display both the capacity to maintain their viability and the capacity to evolve.

So, Innes and Booher suggest that to make collaborative processes more effective, they should be self-organizing, with diverse agents, involving many interactions and non-linear dynamics. These are the keys to making them creative and adaptive. The inclusion of all agents (i.e. full participation of all relevant stakeholders) is required for coherent and novel patterns of action to emerge. They also argue that "the condition of diversity implies that a collaboratively rational process must include not only agents who have power because they are "deal makers" or "deal breakers," but also those who have needed information or could be affected by outcomes of the process."

Interdependence

The condition of interdependence holds that agents must depend to a significant degree on other agents. That is, as is true in all successful negotiations, each agent (or stakeholder) has something that the others want. This condition ensures that participants maintain a level of interest and energy required to engage each other and push for agreement. Negotiation theory tells us that interdependence among interests is the key to moving past zero sum games to mutual gains agreement. Such interdependence means that players cannot achieve their interests on their own, and that given their diversity some participants will value certain results more than others. As a group, therefore, they can pull together a "package" that allows every participant to get more of what they value without reducing the value that accrues to others.

Authentic Dialogue

Authentic dialogue requires that agents engage with each other in deliberations that adhere to Habermas' ideal speech conditions. That is, deliberations must be characterized by direct engagement so that the parties can test to be sure that claims are accurate, comprehensible, and sincere. Deliberations cannot be dominated by those with power outside the process, and everyone involved must have equal access to all the relevant information and an equal ability to speak and be listened to. (This is what I have described as Joint Fact Finding in previous blog entries.) In authentic dialogue, all participants can challenge the assumptions or assertions put forward by others. Nothing is off the table, and the reasons people give for what they are arguing matter a lot. Authentic dialogue relies on (1) what participants know from their everyday lives and not just on specialized, scientific expertise, and (2) knowledge constructed jointly through interaction and shared inquiry. Many processes that are dubbed "collaboration" fail to meet these conditions, and, thus, do not involve authentic dialogue.

Complexity science explains why collaborative rationality works

Innes and Booher write: "The complexity and rapid change in contemporary society have created an increasing awareness among policy leaders of the limits to hierarchical control by government agencies and to formal expertise in solving problems. This awareness leads to growing uncertainty about policy and a new focus on the need to manage uncertainty, rather than create programs and regulatory regimes that deny its existence. As society has become more culturally diverse, decision makers have to deal with an array of publics with different values, perspectives, cognitive styles and worldviews. Complexity is also reflected in growing interdependence among government players, as agencies find they cannot be successful, even on their own limited agendas if they continue to work unilaterally."

Collaborative rationality sees the world as inherently uncertain and assumes that all decisions are necessarily contingent. "In this view, planning and policy are not about finding the best solution -- indeed there is no one best solution, though there may be many better ways of proceeding than the status quo. Collaboratively rational processes are about engaging with other members of a community to jointly learn and work out how to get better together in the face of conflict, complex changing conditions and multiple conflicting sources of information. Such processes are not only about finding new ways to move forward, but they are ultimately about guiding community and governance capacity to be resilient in the face of the inevitable new challenges."

A resilient system is one that can withstand shocks and surprises, absorb extreme stresses, and maintain its core functions. Resilience (according to Berkes and colleagues, 2003) refers to the amount of change a system can undergo and still retain the same controls on function and structure; the degree to which a system is capable of self-organization; and the ability to build and increase the capacity for learning and adaptation in the system. Thus, sustainability is a dynamic process and not an end product.

Now, every time someone suggests a collaborative (bipartisan?) approach to public policy-making, you can assess their authenticity by applying the elements of the DIAD model. Are they really committed to collaborative rationality, or are they just traditionalists hiding behind the mask of collaboration?

Dispute Prevention: It's a Good Idea, Right?

2010-01-17T02:43:00.001-08:00

I was recently asked to join a panel at the annual meeting of CPR (the international institute for conflict prevention and resolution). (www.cpradr.org) This is an organization that has worked for more than 30 years to convince law firms and in-house corporate counsel to take dispute resolution seriously. They are the ones who came up with the idea of adding a "dispute resolution clause" to all kinds of contracts so that parties don't resort to litigation at the first sign of disagreement. Our assignment was simple enough -- make the case for dispute prevention, not just appropriate dispute resolution. We were motivated by a simple cartoon showing someone peering down from the top of a very high hill to a waiting ambulance below. The ambulance driver is dash off to the hospital with the latest victim injured in a fall because no one thought to build a fence around the edge of the precipice. We were talking about building a fence to avoid disaster, not just arranging to have an ambulance ready when the inevitable occurs.

It turns out, that in the construction industry, dispute prevention has been the norm for years. With CPR's help (decades ago), that industry learned to initiate "partnering agreements." Companies entering into construction contracts may have to work together for several years to complete a project. Delay at any point during the construction of a large building can kill a project -- time is money! So, at the beginning of a project, the financial sponsor, the architect, the builder and sometimes others (like the construction union) sign an agreement promising to meet regularly (whether there's trouble or not), keep lines of communication open, monitor progress jointly, and put a standing panel of neutrals (i.e. mediators or arbitrators) in place so that small disagreements are addressed and resolved quickly before they escalate. By putting a carefully designed dispute handling "system" in place, it turns out that most disagreements or misunderstandings can actually be avoided. There are unambiguous findings from numerous studies to support this.

Why, then, are dispute prevention measures so rare in other sectors? We speculated that it might be because industry leaders just don't know about the idea of partnering agreements or standing dispute resolution panels (with very quick timetables for airing and resolving disputes). But, that seems unlikely since the same law firms and in-house counsel, trained at the same law schools, work in these other sectors. So, we explored other obstacles or barriers to using these dispute prevention techniques. Our best guess is that law firms (or lawyers in general) might be the problem. What glory is there is being the person responsible for avoiding a dispute? And, how can a legal services provider make any money if they succeed in avoiding most litigation?

I suggested that we ought to add a provision calling for a "dispute prevention bonus" to all legal services contracts. So, in fashioning a business deal, for example, the law firm involved in writing or reviewing the contract would add a provision calling for a financial bonus (set, perhaps, as a percentage of the expected value of the deal or the transaction) to be paid to the lawyers involved IF there is no litigation throughout the life of the contract. Deductions from the total might be made to cover the cost of arbitration if the standing panel needs to use it (but not for rapid-fire mediation). Imagine, all the lawyers working like crazy throughout the life of a project or a contract to be sure that parties stay in close contact, communicate effectively, smooth out their misunderstandings quickly and take the pre-agreed steps to resolve minor disagreements! I have no doubt that lawyers would become skilled in dispute avoidance if they had sufficient incentives to do so.

At the conference, we talked about the four prerequisites for dispute prevention. The first is a written dispute avoidance/dispute handling agreement that spells out appropriate step-by-step procedures. The second is a requirement that the most senior managers on both (or all) sides of a contract or a working relationship must be called in at the first sign of trouble. [This seems to motivate everyone below them to do whatever is necessary to keep things under control.] The third is the inclusion of a standing neutral (or panel of neutrals) so that the parties don't have to scramble to find someone acceptable to everyone -- and who understands their business -- when small problems arise. Finally. an explicit financial disincentive or a dispute prevention bonus may be required to keep everyone motivated.

My own take on this is that "clients" of all kinds must demand that legal service providers emphasize dispute prevention before the idea will spread as rapidly as it should.

No Meaningful Agreement in Copenhagan. No Surprise.

2009-12-19T05:21:00.000-08:00

Let's see if we can grasp the so-called agreement reached in Copenhagan.

1. Many of the Developed Countries (the North) have promised to reduce their greenhouse gas emissions as much as they (comfortably) can in the future. These are not binding commitments; just promises to make a best effort. And, they are all over the place in terms of the cuts they represent compared to past and present CO2 emission levels. A number of Developing Countries (the South, including China) have now promised to mitigate greenhouse gas emissions. Again, nothing binding and wildly inconsistent targets and timetables. And, even if you add up all the promises, you won't come close to getting the world on track to stabilizing greenhouse gas emissions at a (350 - 450 ppm) level by 2050 sufficient to forestall the worst effects of climate change over the rest of the century and beyond.

2. The The North has promised to come up with $30 billion over the next three years to help the South "fight" climate change. It's not clear, though, how this money will be used or where it will come from. Presumably, some of it will be used to reduce CO2 emissions (although it is not clear what the best way to do that is or how such efforts should be prioritized). Some of it will have to be used to help countries adapt to sea level rise, increased storm intensity, periods of draught, adverse effects on biodiversity, and other disasters. (Which forms of adaptation should be pursued, are not clear.) Also, it is not obvious how this money will be administered or who will get it (presumably a disproportionate share should go to the poorest countries in Africa). The North says it will try to raise $100 billion by 2020, but, again, it is not clear where the money will come from, how it will be administered, or who will get it. Finally, these are just informal promises, not binding commitments.

3. There was almost a new forest agreement, but at the end it got dropped. In Kyoto, the question of how to define and protect "sinks" (i.e., forests and oceans that absorb CO2) was not addressed. In Copenhagan, the leaders agreed that halting deforestation is "crucial." Funds to pay countries, like Brazil, to conserve their forests are now supposed to be forthcoming. Note that rich nations like this idea because they want to count the funds they donate for this purpose toward "carbon credits" (thereby reducing the CO2 reductions they have to make in their own countries). It is not yet clear, though, how this system of carbon credits and forest preservation would work.

4. As with all global treaty negotiations, there was a lot of uneasiness when the topic of monitoring and enforcement came up. No country can really force another to do what it doesn't want to do -- even if it has signed a treaty. Countries are sovereign. Most global agreements require countries to report regularly. But, in this case, if the reports don't seem accurate, all the Climate Change Secretariat can do is ask for more information or clarification. It can't double-check the data that countries submit or take independent measurements of its own. The South agreed for the first time, however, to report domestic CO2 emissions on a regular basis. There was some language discussed regarding "provisions for international consultation and analysis." That's as close as we'll get to verification. Some observers had hoped that a new global panel of experts might have access to all monitoring equipment, data and technical specialists in each country so that suspect reports could be verified, but that didn't happen.

5. The so-called "Statement on Temperature" agreed to in Copenhagen says that the nations agreed that any global increase in future temperature should be kept to under two degrees Celsius. Since the new agreements specifies no targets, timetables, enforcement mechanisms, provisions for technology sharing between the North and the South, or ways of enhancing capacity building, it's hard to take such a statement seriously. Saying it should be done, but not saying how, is tantamount to saying nothing.

6. None of the promises made in Copenhagan are binding. Maybe, in the next year or two, a formal Protocol will be drafted that explains how implementation of these various commitments is supposed to happen. Until then, though, we'll be operating under the Rio Climate Change Convention and the Kyoto Protocol.

What happens when the Kyoto agreement runs out in 2012? It appears that we will have no binding targets in place to bring global greenhouse gas emissions to a level (450 ppm? by 2050) needed to forestall dangerous temperature increases. We certainly won't have the level of cooperation between North and South required to tackle the climate change problem over the long haul. Many countries in the South resent the way they were (once again) left out of the last minute wheeling and dealing in Copenhagan. And, tossing money at them, no matter how many billions, without ever agreeing in principal that the North is responsible for the climate change mess we are currently in, just puts off the day we can achieve the global collaboration required to address the problem effectively. Small island nations face total destruction. The numbers of international refugees that will have to move from low-lying coastal areas devasted by meterological events is sure to increase markedly. Unfortunately, nothing will be done to jump-start Southern efforts to achieve more sustainable patterns of development. In short, after Copenhagen, the climate change problem will continue to get worse at an even faster clip.

What should have been done and what can still be done to turn this situation around? First, we need to alter the system of global treaty drafting. Each region of the world should bring together governmental and non-governmental interests on a specific multi-year timetable to produce a draft global treaty that takes account of its needs and sort out its responsibilities for achieving proportionate greenhouse gas mitigation efforts sufficient to reach the required 450 ppm goal by 2050. Two or three countries in each region should immediately mobilize such efforts. Using a common template -- developed by the Climate Change Secretariat which still has a 160+-country mandate -- each regional caucus should spell out ten year incremental reduction targets sufficient to meet the 450 ppm goal by 2050, explicit strategies that countries can use to meet these targets if they have to, the cost implications of meeting such targets (netting out the costs of not meeting them as well), ways reasonable data reporting and verification responsibilities might be met, institutional capacity building requirements, financial forecasts likely to have an impact on implementation, and possible financial or in-kind contributions each country needs or could provide). This needs to be done in eight to ten regions of the world. Each regional "caucus" should draft its suggested version of a new global agreement to meet greenhouse gas reduction requirements responsibly and designate five members from its caucus to participate in a global treaty-making council with responsibility for reconciling the differences among the proposed regional drafts. The Global Congress would have to be mediated by an international panel of skilled facilitators acceptable to all the regions. A Congress of 40 - 50 regional representatives would need a year or more to prepare a meaningful treaty the takes account the differences among all the regional drafts. The final version of the treaty would then be sent to each national legislative body to ratify (not at another Copenhagan-style type fracus). When a minimum of 2/3 of the countries in each region ratifies it, and a minimum of 2/3 of the regions ratify it, it would come into force. If 2/3 of the countries in 2/3 of the regions ratified the treaty, those 130 countries would be in a position to take action (under a range of trade and other treaty regimes) to pressure any and all hold out countries to ratify the new Climate Change treaty. If a county won't sign the new treaty, they ought not be eligible to participate in international trade regimes. If they don't sign, they ought not be eligible for assistance from any multinational banks. Since all the same countries are part of all these regimes, the climate change treaty signers would have sufficient numbers (and through the process I am describing) sufficient legitimacy, to make this happen.

Let's get to work.

Resolving Complaints About Irresponsible Corporations

2009-12-04T03:23:00.000-08:00

Corporations are supposed to pay attention to environmental, health, safety, labor, tax, consumer protection, information disclosure, and human rights laws wherever they set up shop. But, we've all seen and heard stories about multinationals guilty of violations in far-away places. They have been charged with allowing unsafe working conditions, blocking legitimate unionization efforts; ignoring environmental and health standards, bribing officials, and turning a blind eye to human rights violations. Developing countries are often ambivalent about holding violators to account: they can't afford to lose the investments and the jobs, and they often lack enforcement muscle even if they want to act.

The 30 member nations in the Organization for Economic Cooperation and Development (OECD) -- mostly developed countries -- have agreed to press multinationals based within their borders to conduct themselves responsibly and abide by applicable laws wherever their far-flung business interests may take them. There are lots of voluntary guidelines that seek to impose similar norms of socially-responsible corporate behavior, but the OECD Guidelines for Multinational Enterprises cover 85% of all foreign direct investment in the world. They also put countries in a quasi-enforcement role which most voluntary codes of ethics don't do.

Every OECD country is required to appoint a National Contact Point (NCP). All complaints about foreign-controlled corporations are channeled through the (home country) NCPs, regardless of where an alleged infraction take place. So, for example, if an environmental group in the Philippines thinks a Dutch-based multinational is operating inappropriately in the Philippines, it can file a complaint with the NCP in the Netherlands. While the NGO can also bring a lawsuit against the Dutch subsidiary in the Philippines, getting the Dutch NCP involved brings an entirely different level of international attention to the complaint. If after an investigation, the NCP in the Netherlands is unable to get the parties to settle their differences, it is empowered to issue a statement of findings -- either giving the company a "clean bill of health" or stipulating (1) that the guidelines have been breached and (2) how the company's conduct must change in the future. Neither the NCP or the OECD can shut a company down or fine them for breaking the rules. However, the NCP might be in a position in some countries to punish a non-complier by forbidding them to do business with their home country government. Any company named as a non-complier by an NCP will take a serious reputational hit (which could affect its market value) in national and international circles.

While the OECD guidelines have been in effect for a number of years, only a few hundred notifications have been sent to NCPs worldwide. Recently, though, the Dutch and Canadian NCPs (in anticipation of an upcoming OECD review of the guidelines) asked whether those of us who help to mediate CSR disputes would offer suggestions for improving the "system." On November 31st, the Dutch and Canadian NCPs met with a group of experienced international dispute resolvers at Harvard Law School to share ideas.

We heard about a number of cases. The Dutch NCP tries hard to resolve complaints behind the scenes without ever having to issue formal statements, but this is not always possible. When they try to mediate disputes, they encounter three sets of obstacles or concerns. The first relates to the roles and responsibility of NCPs. Exactly what authority do they have? The Dutch NCP is independent. While it is appointed by the Dutch government, it is made up of four individuals who represent labor unions, corporations, environmental groups and academia. All other NCPs are government officials. When they receive a notification, they must investigate. But, its hard to gather first-hand evidence in another part of the world with a small staff and a limited budget. Should they proceed if charges are pending in court or being pursued in parallel in another country? Different NCPs think differently about this. How should they decide which standards of performance to use in evaluating specific corporate actions? Does it matter whether the complainant is truly representative of the people or group it alleges to represent? What if the corporate subsidiary being charged is truly independent, and the multinational parent company has little or no control over its behavior?

A second set of obstacles or issues revolves around the rights of companies against whom complaints have been lodged as well as the rights of individuals or groups who file notices of complaint. Should companies that are charged with violations have a right to confront the evidence against them and to cross-examine their accusers? This would pit small NGOs against some of the worlds' richest companies. But, if unsubstantiated charges are publicized and used to blemish the reputation of a company, does an NCP have a responsibility to protect the company's good name? And, if someone files a complaint, is it the responsibility of the NCP to protect them from any kind of retaliation? The current OECD guidelines are not as explicit as they might be; on the other hand, maybe its better to let each NCP proceed in whatever way makes the most sense in its legal and cultural context. Does fairness require that NCPs all over the world keep a record of their findings and decisions, that repeat (global) offenders be held to higher standards or that similar charges be treated in the same way every where?

The third set of questions focuses on the roles and responsibilities of intermediaries trying to resolve CSR disputes. If the NCP promises confidentiality to get people to talk freely, can it then use what it learns if a voluntary settlement is not reached and it has to issue a statement of findings? What ethical code should govern NCP settlement efforts? Should NCPs try to mediate disputes themselves; or, as is the case in the United Kingdom, should they hire professional mediators who are not government employees? Is it really possible to create a wall between one part of an NCP that is trying to settle a dispute and another that has to pursue its investigatory obligations and issue a formal statement of findings?

As more groups around the world find out about the OECD system, and the number of notifications increases, it will be important to have effective dispute resolution procedures in place. You should contact the NCP in your country. Offer comments and suggestions (by January 25, 2010) that can be incorporated into the upcoming review of the OECD guidelines. You can view the guidelines at www.oecd.org. You also might want to read the report prepared by OECD Watch entitled Five Years On: A Review of the OECD Guidelines and National Contact Points, 2005 available at http://foci.org/en/resources/publications/economic-justice-resisting-neoliberalism/2000-2007/pagesfiveyears.pdf.view.

Harmonizing Science, Policy and Politics

2009-10-24T06:30:00.000-07:00

At MIT, we are training Science Impact Coordinators (SICs) willing to put themselves in the middle between experts, advocates and regulators. Unless someone is able to manage these difficult interactions, we will miss crucial opportunities to protect dwindling natural resources. What does a graduate student with an undergraduate science degree, a passion for environmental improvement and an interest in managing constructive dialogue in politically-stressed situations need to know to facilitate such interactions? That's what we are trying to determine.

Six years ago, at the invitation of the United States Geological Survey (one of America's premiere science agencies), our MIT team put together a set of courses and a field-based training program to place apprentice SICs in the middle of resource management controversies all over the United States. Through an action-research program, more than 25 graduates of MIT's Department of Urban Studies and Planning have worked on environmental restoration in Mississippi, desalination of the Colorado River, climate change impacts in the Everglades and on the Chesapeake Bay, strategies for maintaining the near-shore fishery in the Gulf of Maine, ways of ensuring that local knowledge is taken seriously in managing the Sonoran desert; dealing with storm water run-off in Somerville, Massachusetts and Aurora, Colorado; helping coastal cities in Massachusetts adapt to climate change risks, protecting endangered habitats in the Rocky Mountains, and coping with water shortages in Eastern Washington. We work under the banner of MUSIC -- the MIT-USGS Science Impact Collaborative and our tag line is "Harmonizing Science, Policy and Politics." (See scienceimpact.mit.edu).

You'd think by now that the science and engineering establishment would realize that conventional approach to injecting "science" and technical analysis into politically-charged policy-making situations isn't working. Most scientists and engineers still think that all they need to do is put their studies "out there" and the world will use the information appropriately. They are convinced that they don't have to talk to non-experts or get involved in the hurly-burly of actual decision-making. We also encounter regulators at every level who think that holding a hearing is the best way to engage concerned citizens and stakeholders in resource management decisions. The fact that nothing gets decided in such setting and that no one has responsibility of reconciling what they are saying with what anyone else is saying, doesn't seem to bother them. Finally, we see no sign that environmental and health advocates realize how important it is for them to engage in joint fact finding and collaborative decision-making with the companies and agencies they are fighting.

Getting the Right Parties to the Table

The first step in resolving any science-intensive policy dispute is getting the right parties to the table. This is best handled by calling on trained mediators (i.e. professional neutrals) to interview all the relevant groups and organizations - on a confidential and not-for-attribution basis - to scope the agenda, identify who should be involved, lay out a work plan, and engage the relevant stakeholders in specifying the ground rules that will govern their interactions. The details of how to do this are now well-known (see Susskind and Cruikshank, Breaking Robert's Rules, Oxford University Press, 2006). Students in the MUSIC program help prepare these assessments as assistants to professionals working for the Consensus Building Institute (www.cbuilding.org).

Joint Fact Finding

Once all the parties are at the table, including the relevant regulators, the group can initiate scientific or technical investigations required to understand the current situation as well as possible ways of proceeding given the likely impacts of alternative decisions. Often this requires developing models or forecasts. Sometimes it requires gathering new data. Inevitably, it involves interacting with a range of experts (with conflicting disciplinary and technical opinions about what ought to be done or how a problem should be approached).

Building Consensus

Eventually, the group needs to decide what it wants to recommend based on the homework it has done and the concerns of all the stakeholder groups involved. Unlike a hearing where each person sounds off and then sits down; the collaborative processes MUSIC students are learning to facilitate aims to produce informed consensus -- even in the face of scientific uncertainty and intense technical disagreements. What's interesting is how often it is possible to reach agreement in such situations when the parties are given the information and help they need. Books like Susskind et. al, The Consensus Building Handbook (Sage, 1999) offer numerous "worked examples" to show that this is possible.

Linking Informally Negotiated Agreements to Enforceable Decisions

When groups are invited to participate in collaborative resource management, that doesn't mean that government agencies are turning over to them the power to make final decisions. The product of such deliberations almost always takes the form of a recommendation. Agencies have legal responsibility for making policy choices. Most of the time, though, if all the relevant parties engage in a good-faith effort to produce an informed agreement, the regulators are likely to move in that direction. They take the informally negotiated agreement and translate it into terms and conditions imposed as part of a permit or license. This makes the policy enforceable.

What SICs in Training Need to Learn

We expect SICs to invest two years in intensive graduate study. About 1/4 of their time is devoted to field-based apprenticeships. The rest is spent taking courses dealing with the techniques of policy analysis, tools for forecasting and modeling change in socio-ecological systems, environmental ethics, environmental leadership, strategies for promoting sustainable development, and consensus building strategies. Their field-based assignments are guided by federal agency staff and MIT faculty advisors. They have to fulfill a contract each semester that requires them to produce work products that meet the needs of the communities and agencies with which they are working, and contribute to theory-building. In their final semester, they are required to produce a thesis. In early November 2009, we will publish The Best of MUSIC, highlighting some of the most important theory-building contributions of the MUSIC interns.

We are pushing hard to get the U.S. Department of the Interior to make a formal commitment to hire Science Impact Coordinators at of its headquarters and regional offices. We hope that NOAA, EPA, DOE, Army Corps of Engineers and make similar commitments. It's time to adopt a new approach to harmonizing science, policy and politics.

The Life and Death of Democracy

2009-09-19T15:48:00.000-07:00

I'm trying to make my way through John Keane's massive book, The Life and Death of Democracy (Norton, 2009). He reviews three "epochs" in the evolution of democracy: Assembly Democracy, Representative Democracy and what he calls Monitory Democracy. He then tries to make sense of where we are headed next by jumping forward and looking back at our current situation (Memories from the Future). He's not optimistic (although the book was written before President Obama was elected and America's foreign policies and international engagements shifted radically). The failure of political parties, the use of mass media to control political communications, the "cross-border squeeze on democratic institutions," resurgent nationalism triggered by "the powerlessness of joined-up global government and market forces;" terrorism, uncivil wars and nuclear anarchy; the failure of the "law of democratic peace" (that assumed democracies would not go to war with each other), America's failed efforts to "promote" a global transformation to democracy," the rise of new enemies of democracy, including hypocrisy, fatalism and ignorance; and the return of bipolarity (US-China tensions) are all to blame.

He then cites Richard Rorty to make the point that while there is no "ultimate justification" for democracy, it is certainly something to be valued. (Persuasion rather than force, compromise and reform rather than bloody revolution, free and open encounters rather than bullying and bossing, a hopeful, experimental frame of mind...) Keane argues for humility (rather than talk of pragmatic superiority), continued re-invention (or novelty), the "rule of nobody," and the importance of equality -- or the equalization of all citizen's life chances as reasons for hope. He offers seven new democratic rules --although they are aimed more at theorists than practitioners: (1) treat the remembrance of things past as vital for democracy's present and future; (2) always regard the languages, characters, events, institutions and effects of democracy as thoroughly historical; (3) pay close attention to the ways in which the narration of the past by historians, leaders and others is unavoidably an historical act, (4) the methods that are most suited to writing about the past, present and future of democracy are those that straightforwardly draw attention to the peculiarity of their own rules of interpretation; (5) acknowledge that, until quite recently, most details of the history of democracy have been recorded by its critics, or by its outright opponents; (6) the negative tone of most previous histories of democracy confirms the rule that tales of its past told by historians, politicians and others often harbor the prejudices of the powerful; and (7) admit that the task of coming to terms with the past, present and future of democracy is by definition an unending journey.

After almost 900 far more erudite pages than I could ever muster, I conclude: democracy is what you make of it. How should we "do" democracy? When Assembly Democracy morphed into Representative Democracy no one seemed to notice. When Representative Democracy gave way to Monitory Democracy (publicly monitoring and controlling the exercise of power -- "through sideways and downwards" involvement of the whole political order), it seemed perfectly normal (at that time, to the people involved). What comes next is what we say should come next. In my view, that's collaborative decision-making at multiple scales assisted by a new class of professional neutrals. Is this a shift of "epochal importance?" Yes, I think it is. It is an evolutionary step beyond Monitory Democracy that will restore the legitimacy of democratic institutions by assuming that that everyone needs to be involved, not just in discussions and criticism of what is going on, but in the co-production of everything that follows. It's not Assembly (or direct) Democracy, because there is no voting. The burden is on each citizen (and each community and each state) to come up with a way of meeting their/its own interests while also meeting the interests of others. The logistics of collaborative problem- solving are new, but the commitment to broadening and deepening basic democratic ideals keeps us on track.

What should you do when the other person is lying (in a public context)??

2009-08-19T06:11:00.000-07:00

There's a lot of confusion about the best way to respond to a lie spoken in a public context. One strategy is to ignore it and act as if the statement was never made. I guess folks who take this tack hope they'll avoid giving a false statement any traction. A second response is to suggest that the person making the statement probably didn't realize what he or she was saying. This approach presumes that its always best to give someone the benefit of the doubt and presume there's just a misunderstanding on their part. I don't think so. From my standpoint, the most effective response to a lie is to name it, frame it, and claim it.

If I think someone is lying -- that is, deliberating making a statement they know to be false, I'll say that out loud: "That's a lie." Or, "Wow, another whopper." Yes, I'm giving visibility to the statement, but, from my standpoint, I'd rather the statement be labeled as a lie than allowed to stand unchallenged.

That's not enough. It is important to say why I think the statement is a lie and to suggest what the motive of the liar might be. I call this framing. Motive is important. If I can't think of any reason the person making the statement might have for misrepresenting the truth, then I might chalk their statement up to ignorance or reckless disregard for the truth. So, for me to call something I lie, I have to believe that the person making the statement has a motive for misrepresenting the truth. I link my characterization of their motive with the evidence that ought to convince any neutral observer that their statement is untrue. "That's a lie. That's not what it says on page 1014. They are obviously are trying to make the President look bad." Or, "No, that's not what happened on that date. They obviously would rather have us believe something that casts them in a better light. Here's reliable information to the contrary."

Finally, I think it is important to "own" my claim that their statement is a lie. That means, I need to be confrontable. If I'm going to call someone a lier, I ought to do it in a very public way -- to their face, if possible. I'm certainly not going to do it anonymously. The credibility of my characterization of their motive hinges, in part, on my willingness to stand behind my charge. "That's a lie. She is just trying to gain publicity for herself and play to her constituency. The bill doesn't say that at all. In fact, here's what it says. I'd love a chance to meet with her and have her show me exactly where it says what she claims."

Name it as a lie. Frame it by postulating the lier's motive and offering evidence to the contrary (that any neutral observer would accept). And, claim responsibility for your counter-charge.

If someone else has a different view of how to respond to a lie, I'd love to hear it.

How Should You Respond to the Noisy Health Reform Critics?

2009-08-11T12:15:00.000-07:00

Imagine you are one of the members of Congress running a "town hall" meeting to discuss pending health care reform legislation during the current legislative break. You are confronted by some very angry citizens. They are shouting at you!

"How dare you!

Don't you take my doctor away from me! Don't tell me what medical services I can and can't have!

If you think the Canadian system is so great, why don't you go live up there. People have to wait months to see a doctor in Canada.

Shame on you! I don't want some faceless government bureaucrat deciding whether my parents live or die!

I'm a small business owner. You're gonna bankrupt me if I have to pay for health care for my four or five employees.

Our health care system is already too expensive! You're going to raise my insurance premiums if we have to pay for everyone who won't take care of themselves!

The deficit is already out of control. You're bankrupting the country.

Look at what happened in Massachusetts after they passed their health care reform. Costs exploded! They can't cover everybody. Their taxes are going up.

My tax money shouldn't be used to pay for abortions.

Don't you cut my medicare benefits!

It's greedy trial lawyers who driving up the cost of health care.

There a bunch of things you want to say, but every word out of your mouth is met with another round of boos and chants of "No New Taxes," "Let Doctors Decide," and "Keep Your Hands Off." You feel obliged to set the record straight on each and every point:

No one will have to give up the health care provider they have now.

We are not proposing a single payer system like they have in Canada. The proposed reforms

passed by the House and being considered in the Senate will offer more choice for more people, not less choice. (Besides, the claims about long waits and government telling doctors what they can and can't do in Canada are bogus.)

This whole Sarah Palin "death panel" thing is a complete fabrication. There's nothing in the proposed legislation that would tell doctors or patients how to handle end-of-life decisions. There are provisions that make it OK for doctors and patients to talk about the most compassionate ways of helping people who are dying. But everybody wants that.

We are going to exempt small business or rebate some of the costs to small businesses who help their employees get health coverage.

The cost of health care keeps going up. We can't afford not to do something to bring the costs under control. Other countries get better medical results at lower costs than we do. One of the best ways of reducing the continued growth of health care costs is to get everyone into an insurance system that compensates providers for keeping people healthy (not for spending as much as possible on unnecessary procedures once you are sick)! We need a system that can bargain with powerful pharmaceutical companies to keep the costs of drugs down.

We may have to increase public spending in the short term to reform our health care system, but in the long term this is the only way to bring costs under control. We need to put the system in place and give it couple of years. Then the costs will start to come down for everyone.

Actually, Massachusetts has reduced the cost of providing health care to everyone in the state. It's not true that the new state system (that covers everybody) is breaking the budget or causing tax increases.

Abortions are legal in the United States. People covered by publicly supported health insurance need to have the same choices that people covered by private insurance have.

We are not talking about cutting medicare benefits or medicare spending. What we are trying to do is get more people who don't have insurance covered by something like medicare.

Yes, legal reform is necessary to reduce unscrupulous malpractice claims that drive up medical costs.

But, it's pointless. As soon as its clear that you mean to disagree

with what one of the questioners has said, the boos and chants begin. Nobody is listening to anything you say. And, even if you managed to get the words out, they wouldn't believe you. They have been briefed by their favorite talk radio hosts. And, many of the people there have been bused in or organized by political action groups. They have their talking points. Many of them believe fervently what they are saying -- that proposed reforms will bankrupt the country, that their medicare benefits and choices are about to be cut, that they will be forced to abandon their local health care provider or limit their medical services.

So, what's the best advice we can give a Congressperson in such a situation? Most aren't going to get the easy ride that President Obama got in New Hampshire. Hard as he tried, he couldn't get any of the 1600 people present to challenge what he was saying.

Here are five suggestions that grow out of what we have learned about facilitating public dialogue in politically charged situations:

1. Begin by saying that you want to hear what the audience has to say. Ask 5 volunteers to come up on the stage to ask whatever questions or make whatever statements they think are important. Invite them up. Make it clear that you don't know any of these people and you are just trying to find out what people who bothered to come to the town hall meeting have to say. Pick five who raise their hands and appear to represent different age or other groups. Let them speak. Tell them that the ground rule is that each person has the mike for no more than five minutes. Invite them to sit on the stage with you. (Make sure someone is controlling the mike and make it clear that it will be shut off after five minutes.) Don't try to respond to each statement. Just listen.

2. Then, after those five have spoken and gone back to the audience. Ask for 3 more people who have different points they want to make that don't repeat what has already been said.

Again, choose three from those who indicate a desire to speak. Invite them up. Same ground rule. Let them speak. Don't respond to each person.

3. When the eight have spoken (it could be 10 if you want), make a list of the key concerns or criticisms that have been raised. Re-state each argument in the most empathetic way you can -- as if you believed each claim or criticism. Show that you have listened. When you have played the points back, ask those who stated them originally whether you have understood their concerns. If they say no, spend a minute or two trying to re-state their points.

4. Then, announce that you are going to take no more than 3 - 5 minutes to respond to each of those points. Since you have given those who have concerns a chance to voice them, you expect to be given the same courtesy. If people disrupt, remind them of this ground rule. If the whole crowd continue to be unruly, indicate that you will end the town hall and broadcast your responses on the web and the radio. See if that gives you the "space" you need to have your say.

5. If you manage to get through all eight points. Then, open the microphones -- people

need to stand in line to use them one at a time -- so that anyone can rebut what you have said, respond to one of the original statements, or raise any additional question they like. Promise that by the next day, you will make available to anyone who provides an email address or a snail mail address a written version of your responses to all the questions raised.

6. Hand out a survey form to everyone in the room. Include three or four open ended questions about people's reactions to the parts of the proposed reform legislation that you would most like input or advice on. Say that you will read all the responses. Indicate, that you will also be doing a scientific survey of everyone in your district to see whether the views represented at the town hall are representative of the district as a whole. Then, do a quick overnight telephone survey of 500 people in the district to see whether the key points raised in the town hall match up with what the population of the district thinks. Publicize the results.

If the goal of the town hall is to hear what people have to say, then the suggestions above will accomplish that. If the goal is to "educate" people on what the Congressperson believes, he or she should have a handout ready with a detailed statement and evidence to backup their claims. If the goal is to generate a thoughtful dialogue, a town hall meeting is the wrong format. Better that the Congressperson selected a small statistically representative sample of residents to talk with in an extended conversation for several hours. It might also make sense to encourage the kind of "study circles" that have been used so successfully in Scandinavia to get thousands of people thinking and talking about the issues framed in a study guide. If the goal is to hammer out a consensus with regard to the district's views, it will be necessary to tap a professional mediator to undertake a district-wide conflict assessment that will produce a "map" of all the relevant stakeholder groups vis a vis the health reform issue and to involve representatives of each of category of groups in formulating an agenda, ground rules, and a process of joint problem-solving.

Hey, C'mon, Why Can't Reds and Blues Agree?

2009-08-05T06:14:00.001-07:00

I was thinking about the reds and the blues. You'd think they'd be able to reach agreement once in a while without bashing each other. But, the more I analyze it, the more I realize that the reds and blues are probably doomed. Some of the time, it's not in one side or the other's interest to reach agreement. They have more to gain by holding out for some extreme proposal, even if it throws them into deadlock. And, often, something or somebody stands in the way. It's hard to have a constructive conversation if there's too much background noise or by-standers are trying to sabotage things. And, finally, I keep forgetting that most of the reds and blues have no relevant negotiation training or consensus building experience.

It's Not In Their Interest to Reach Agreement

Let's say I'm a red, and I want to build something. I need some of the money that's in the shared kitty. (It's not my money, it's our money.) So, I announce, "I want to build one of those." Doesn't matter what reasons I give, before the words are even out of my mouth, some of the blues have lined up against it. They are against it because I'm for it. They're playing to their constituents. They think they will lose face with their constituents if they support something that a red like me might favor. If I try to make an argument "on the merits," rolling out facts to support my claim, they challenge the legitimacy of my data and marshall contrary evidence. The information is really secondary. They've made up their mind that building what I want to build will take resources away from whatever it is they prefer to do. They have different priorities.

When I suggest we meet to work something out, they might agree, but only because they want to convince me to build what they want instead of what I want. If the blues think they can move forward without any support from the reds, they will. Why talk if they can get what they want. If they can't, they'd rather go down in flames than admit that what the reds want makes more sense, especially when the thing we are fighting about is much less important in the long run than maintaining the support of their constituents.

Are there ever issues on which the fundamental interests of reds and blues overlap? You'd think so. But as soon as someone tries to frame a problem in terms of the overlap, someone else will reframe it in partisan terms -- because it is in their individual interest to do so. That's how they can stand out (and claim a leadership role) in the blue or the red community. Even in a time of crisis, when leaders on both sides know that something must be done, the temptation to frame the crisis in partisan terms (and thus force a win-lose confrontation) is overwhelming. Red and blue leaders wont' be leaders for long if they can't rally the troops. The way they do that is to frame every issue (including every crisis) in partisan terms. Reds say it is about individual rights and responsibilities, letting the market operate in unfettered ways, protecting our national identity and hegemony, and above all promoting economic growth. Blues say it is about reinforcing the social contract (fairness and group responsibility), using the mechanisms of government to correct for inevitable market failures, international responsibilities and human rights, and, above all, promoting sustainable development (so that future generations have the same choices we do). Confrontation allows each side to promote its agenda. Getting agreement pales in importance.

Somebody or Something Is Getting In the Way

Reds and blues act as if they are the only ones with something to say. That is so not true. There are whites who pursue their own individual interests and don't care at all about the perpetual battle between reds and blues. This is really hard for reds and blues to accept: whites are playing a different game entirely. For example, there are contractors who donate equally to red and blue causes. They are trying to court favor on both sides. They don't care about the issues that are central to red and blue, they only care about themselves. There are also people who have written off "the whole system." Their lives are miserable and they blame both red and blue. Then, there are global interests who, like the contractors mentioned above, court both red and blue leaders. They are not above surreptitiously making secret deals with one or both sides. Finally, there are those who make a living off the conflict between red and blue -- the chattering class. It's in their interest to turn up the flame on every controversy.

Any time a segment of reds and a segment of blues try to find common ground, they are attacked not only by hardliners on their own side, but by the chattering class. "Reds and Blues Make a Deal!" does not a headline make. You can't sell papers, you can't grab eyeballs and ears with a story about agreement. But, if you can get a red leader to punch out a blue leader, then you've got a story with legs. The chattering class takes no responsibility for educating anyone on the underlying issues (indeed, the presumption is that there is no such thing as education, only propaganda, so pick a side!). It's hard to reach agreement when you are attacked for even contemplating a meeting with the other side. The chattering class demands transparency and accountability because it is in their interest to do so. The notion that confidentiality might be crucial to the early stages of a useful conversation between reds and blues, is so antithetical to the interests of the chattering class, that they have made such exploratory moves almost impossible.

They Don't Have the Knowledge or Skills

Would you put somebody before a judge or jury who doesn't know how the present their arguments in court? Of course not. We'd make sure that they were represented by qualified counsel. Would you throw someone with no diplomatic experience into a high-level peace-making situation? I hope not. They'd get eaten alive. Would you throw someone into a red or blue leadership role who had no formal training in negotiation or consensus building? We do it all the time! Legal, political, administrative, or corporate experience is not necessarily consensus-building experience. There is a science of collaborative problem-solving that is as carefully spelled out as the techniques of political combat that are on display all the time. But, no one has asked that red and blue leaders demonstrate any consensus building competence. In fact, we seem to think that what we need are leader-warriors who will fight the good fight. Is it a surprise, then, that these leaders have no capacity to generate agreements that are in our collective best interest?

One of the most important things that skilled consensus builders know is that the rules of the forum in which joint problem solving takes place are as important as the abilities of the participants. If reds and blues want to reach mutually advantageous agreements that are actually aimed at solving jointly framed problems, they'll need to change the rules that govern when and how they meet. There's no reason they can't suspend the prevailing rules periodically and switch into consensus building mode, but they don't know that. And, they don't know how to operate in such a setting. They'll probably need a neutral mediator (selected jointly) to help them manage the conversation. Imagine, a confidential mediated conversation between reds and blues where nobody could claim victory over the other side. They'd need to conduct such conversations in private with a confidentiality rule in place. Finally, they'd probably need to agree that no agreement would be reached unless and until nearly all the reds and blues involved were in concurrence. No majority rule. No 60% cloture vote.

So, the question is, as a red or blue constituent, would you be willing to reward your representative with your vote if they produced effective bi-partisan solutions to problems

rather than post more wins than losses against the other side? How should we identify the issues we prefer to have red and blue leaders work on in this way? Is there a large enough segment of the population willing to demand that red and blue switch into consensus building mode periodically? How might we trigger such a shift?

Environment and Sustainability Studies at MIT

2009-07-23T09:43:00.000-07:00

MIT does not have an undergraduate or a graduate major or minor in environment and sustainability. The 75 members of MIT's Faculty Environmental Network for Sustainability (FENS) are trying to do something about this. You can see our preliminary proposals for an Undergraduate Minor in Environment and Sustainability and a Graduate Certificate of Advanced Interdisciplinary Study in Environment and Sustainability at fens.mit.edu or web.mit.edu/fens. In the fall of 2009, these proposals will be thoroughly vetted by groups across the campus. By the spring (2010) we hope to have a curriculum package to put before the MIT faculty for a vote.

I've been on the MIT faculty for forty years, and in all that time I've never seen anything quite like this. A substantial group of faculty members from all fields and disciplines is taking the initiative. I'm not talking about gathering names for petitions to complain about something or taking a stand on a political question. Rather, the FENS involves a large group of faculty from all parts of the campus working together to reshape MIT's teaching efforts in what is now referred to on other campuses as Sustainability Science. Curriculum reform efforts at MIT usually start with one member of the administration or a single department seeking to expand into a new area or offer a new degree. But the Environment and Sustainability proposals advanced by the FENS have been prepared jointly by faculty from all five schools at MIT. They represent a "bottom-up" faculty-led rather than a "top down" administration-inspired initiative (although the MIT administration has been quite supportive).

There are five issues that have made it difficult to reach agreement: (1) Is there really anything to learn about environment and sustainability that isn't already covered effectively by the 25 or so Departments on the MIT campus? (2) Doesn't MIT's new Energy Initiative (MITEI) represent a sufficient commitment to environment and sustainability? (3) How can we teach what needs to be taught when the Institute is facing severe budget constraints? (4) Is MIT currently admitting students who care enough about this field to want to take on even more than their already overwhelming degree program requirements? (5) What's the best way to administer a cross-campus, interdisciplinary degree program (when we don't have any in place at the moment)?

In 2008, undergraduates and graduate students organized Sustainability@MIT (sustainability.mit.edu). I'm not sure of the exact number of students in the group (since quite a few graduated in June and incoming undergraduates and graduates have not yet had a chance to sign up), but I'd guess at least 10% of MIT's 4,200 undergraduates and 10% of its 6,200 graduates students are involved. Sustainability@MIT completed several surveys last spring. Based on their results as well as input from faculty teaching "environmental" subjects spread out across the Institute, I think we can answer questions #1 and #4 above. Student interest is strong and classes currently offered are insufficient.

MIT's Energy Initiative worked hard to win support for an undergraduate Energy Minor last year. (They have not yet been able to suggest anything at the graduate level). The Energy Minor is linked to MIT's massive build up of funded energy research on the campus. The Minor will expand course offerings in interesting ways; however, given the way it is structured, it will be quite possible for a student to fulfill the requirements while focusing almost exclusively on new ways of burning fossil fuels. That's not satisfactory from the standpoint of most of the faculty in the FENS. While MIT students are always pre-occupied with technological innovation and new ways of "doing science," there appears to be a growing commitment among students in all areas of study to help find less wasteful and ecologically damaging ways of building and managing cities, new approaches to providing clean water, adequate food, new materials, renewable energy, better information management and strategies for encouraging economic development without undermining nature's services or destroying social capital. So, while there might be some ways in which the Energy Minor will generate new undergraduate courses that an Environment and Sustainability Minor might want to take, the undergraduate minor and the graduate certificate in Environment and Sustainability will focus on a lot more than energy technology.

We've looked closely at current curriculum offerings at MIT. There is a lot we

can build on. But, what's missing are interdisciplinary or interdepartmental pathways that will encourage students to ask questions that no traditional department is likely to emphasize and teach skills and methods that require different ways of framing problems. There are analytical methods (like life-cycle analysis, environmental impact assessment, carbon footprint analysis, and cost-benefit analysis that takes the value of nature's services into account) that most MIT graduates are not learning. The historical and institutional obstacles to sustainable development are not covered in most existing degree programs. There are areas like terrestrial ecology, public health, and environment law and environmental politics that are seriously under-staffed. And, finally, there are areas like conservation biology that are covered expertly by our Woods Hole colleagues, but that most MIT students never know about. We also need to expand the number of "practica" that will allow students to learn about the real-life dynamics of sustainable development by getting involved in client-driven projects in the public sector.

We have put together undergraduate and graduate proposals that assume only four new undergraduate and four new graduate subjects need to be developed. (We would like to see these offered as two-course sequences). That implies two new faculty hires. Everything else can be done by re-clustering and re-organizing existing subjects to make it easy for students to move across departmental boundaries. We hope that faculty teaching many of the existing subjects we have re-grouped into problem-focused sub-specialties will re-orient these classes so that they better serve broader audiences. We also expect MIT to ramp up externally-funded research in the Environment and Sustainability field in the same way its has grown Energy research over the past three years. We need to provide funded research assistantships for graduates and undergraduates. In addition, MIT's recent efforts to "Green the Campus" offer numerous laboratory-like opportunities for students to do research close to home.

In the final analysis, we do not see the need for MIT to devote very much "new" money to launching the undergraduate and graduate teaching programs we will propose in the coming year. We do, however, think that a new administrative arrangement will be necessary. In the end, unfortunately, this may be the most significant stumbling block we will have to overcome. Interdisciplinary, problem-focused teaching will not fit very well within traditional departmental and school boundaries, yet this is the way that MIT has always organized its teaching activities. We will call for the creation of an Ad Hoc Committee on Environment and Sustainability made up of one senior faculty member and one junior faculty member appointed by each of the five Deans. It would be best if these were faculty who teach in the Environment and Sustainability field. These ten faculty would then select their own chair and deputy chair. This Committee would oversee curriculum development, monitor teaching performance, allocate graduate teaching assistantships for cross-cutting courses, advocate for faculty hiring to fill gaps in the curriculum, and organize a range of campus-wide activities (i.e. speakers, job fairs, career counseling, etc.) in conjunction with Sustainability@MIT. This campus-wide Committee, rather than a single Department or School, would administer the undergraduate minor and the graduate Certificate Program.

There are, of course, numerous other models for how to organize degree programs and interdisciplinary minors in the Environment and Sustainability field. Schools all over the world, including MIT's sister institutions (of science and technology) in Japan and Europe, have already created similar programs. But, each context is different and the institutional drivers are different. So, we are not suggesting that any other university ought to do things in the same way that makes the most sense for MIT, or that MIT ought to copy anyone else. We are keeping an eye on what other schools are doing, but mostly so we know what others are doing. We look forward to sharing ideas and experiences with colleagues around the world. For the next year, though, our goal will be to build a consensus within MIT on how to address growing student and faculty interest in Environment and Sustainability Studies.

Measuring Progress in the Fight Against Climate Change

2009-07-11T03:43:00.000-07:00

At a recent Burlington, Vermont meeting hosted by Robert Costanza (the leader of the ecological economics movement) and the Seventh Generation Corporation, we tried to figure out how to measure progress in combatting climate change over the next five years. (http://www.thesolutionsjournal.com/game-plan-america) I'm of the school that says "If you can't measure it, you can't fix it." So, five years from now, what do we have to measure and how do we have to measure it to know that we were making progress in the fight against climate change?

50 years vs. 5 years

Next year's global gathering in Copenhagan will be focused on how many parts per million of carbon dioxide (and other greenhouse gases) we are pouring into the atmosphere and what we should do about it in the long term. National negotiating delegations will try to set reduction goals for 2050 and 2100 -- fighting about what the developed world ought to do FIRST (because of the mess they have already made) and what the developing world has to do (because of the even larger mess they will make in the years ahead if they copy our unsustainable patterns of development). The Copenhagan Climate Change Conference needs to make sure that we don't permanently raise the earth's temperature by more than 2 degrees F. The key number for them seems to be 350 parts per million -- we need to stabilize emissions at 350 parts per million. Unfortunately, we are already beyond that level and climbing. (See Bill McKibbon's www.350.org). We are not going to see global CO2 levels reduced any time soon. So, how can we measure progress in the fight against climate change over the next five years while the nations of the world fight about what to do over the next 50 years?

The four most important things to measure

My colleague Tom Dietz and I came up with four things to measure in the short term -- over the next five years. The first is reductions in greenhouse gas emissions achieved through increased energy efficiency. Its pretty well documented that individual households could achieve 20% reductions of greenhouse gas emissions in just five years using off-the-shelf energy efficiency devices and strategies. (We are talking about liquid fuels as well as electricity.) Most households would probably save enough money in something close to five years to get back whatever costs are involved! The agricultural sector, the industrial sector, the government sector, and the commercial sector might not achieve 20% reductions in five years, but they could probably come close. More work needs to be done to set reasonable percentage reduction targets for each sector. No matter what our 50 years targets, increasing energy efficiency in the short term works to our advantage -- both financially and in terms of ecological sustainability.

The second thing to measure is increased reliance on renewable energy supplies.

About half the states already have something called Renewable Portfolio Standards (RPS) that commit them to generating 20% of their electricity by 2020. Let's assume that the other half of the states catch up and pass something similar. Each state can meet this goal by stressing renewables that make the most sense in their part of the country -- solar in the west, terrestrial wind in the plains, biomass in the southeast, off-shore wind in New England. In five year's time, a 5% increase in reliance on all kinds of renewable energy would be reasonable.

The third way to track progress over the next five years in combatting climate change would be to see whether all states, and cities with more than 25,000 people, had put in place disaster preparedness plans and procedures. We saw what happened in the aftermath of Katrina. If climate change has already started, we are likely to see rising sea levels, increased precipitation (in some areas), storms of greater intensity, saltwater intrusion into freshwater marshes and wetlands, increasing numbers of really hot days (in some places), drought (in some places), and the like. We better be ready. An indicator of progress in the short term would be clear evidence that coastal communities, in particular, had put appropriate measures in place to protect their population and to make sure that key ecological services (like the supply of clean drinking water, the cooling provided by shade trees, the replenishment of the soil needed to grow our food, etc.) will be protected. Reductions in vulnerability to probably can't be measured in a single number, but we could determine whether every place that should have a plan for reducing vulnerability to climate change has a credible plan ready to go. That's a reasonable five year goal.

The fourth measure of progress would be enhanced resilience in all these same cities and towns. Think of the worst storm in your extended family's memory. How long did it take your people to recover? Houses had to be rebuilt, although soil erosion made that impossible in some places. Insurance coverage began to disappear. Farms (and crops) took a while to restore. Water supplies were ruined in some places. Infrastructure (including roads, bridges, waterfronts, energy facilities, parks, sewage treatment plans, water pumping operations, etc.) had to be rebuilt. If we know that climate change is going to increase the number and intensity of such storms (What if they were going to occur once every 10 years rather than once every 100 years?), we must do some advance planning to make sure that places that are hard hit can spring back. This might mean building protective seawalls or higher dams. It might mean replacing or relocating certain roads, bridges and pumping stations. It might mean swapping which lands uses are allowed near the water, what building standards have to be met (maybe all structures along the water need to have a freeboard that can be raised to let water move underneath them). Climate change resilient cities will probably have to do version of all of these things. Five years from now, if a city hasn't put a Climate Change Adaptation Plan together, it probably hasn't made sufficient progress. We need a national advisory group to help set appropriate standards for adaptation planning. In the most vulnerable areas (i.e. with the lowest elevations near the water), just having a plan in five years isn't good enough. The top 5% of the vulnerability list should have begun implementing their adaptation plans by then.

Most cities and towns in the United States are still operating as if the 100-year flood should set the standard for how development and ecosystems are managed. These are not climate-change ready communities.

Who should do the measuring?

Measuring climate action progress will require collecting technically-credible information on a regular basis. We collect consensus data for the nation as a whole and make it available on line to everyone every five years (state) or ten years (federal government). So, we could do the same thing to track climate change progress. We know how to measure changing levels of employment, shifting population characteristics, spending patterns, and a whole host of other things while still respecting individual confidentiality. We need to get cracking with a Climate Change Measurement Project led by a team of federal agencies and states. All kinds of interested groups and organizations should be invited to collaborate. We only need to set targets for the first five years. After that, once we've see what has happened, we can produce a better set of targets for the following five years. Each set of five year targets will be set in light of the long-term goals established in Copenhagen, but we can do something now and keep making adjustments along the way (as we learn more).

Getting the word out

It's clear that greenhouse gas emissions are in the process of altering our environment. Those alterations will eventually eat away at our economy (in the same way that a terrible month of rain in June cut deeply into the profitability of tourism in New England). While we need to set long-term CO2 reduction goals, we also need to track progress in every single place along the way. Cities should benchmark their progress in the fight against climate change. So should states and national agencies. This is true in every country, not just the United States. Different places will set more or less ambitious targets; that's fine. But they need to set measurable five year goals that can be used to chart their progress. And they need to use appropriate indicators that reflect the world's long-term efforts. If we don't measure how we're doing in the short term, though, we'll never get started and we'll never get better.

The Sovereignty Claims of Indigenous Peoples

2009-06-17T05:55:00.000-07:00

Think about it from their perspective. Assume you are part of a group that has inhabited a place for at least a thousand years. Your ceremonies and traditions date back a lot farther than those of the interlopers who now control every aspect of your life. Your people have been connected to that particular place for all of recorded history. Yet, now, the national government that surrounds you wants to dictate what you can and cannot do with your land and how your children should be educated.. That national government has sold the mineral rights out from under you (and kept all the money), polluted the waters you depend on, and stripped the forest that has always been your primary source of food. Wouldn't you be angry?

There are more than 300 million indigenous people in the world in this situation. There are at least 5000 different first nations in more than 70 countries. Most of these groups are fighting for their survival -- arguing that they should have control over their ancestral lands and be allowed to decide what happens within their borders. In most instances, though, their sovereignty claims have been rejected. In the United States, many Native Americans live in the worst economic conditions in the country. They do not control what happens in their lives. While some Americans blame the tribes for their current circumstances, there can be no question that the American government has refused to allow the Indians to control their land and water and has not lived up to the promises that the American government has made over the past several hundred years. In Australia, Latin America, Asia and in parts of Europe, First Peoples struggle for recognition and fair treatment. While the United Nations has, after 25 years of discussion, finally passed a non-binding Declaration on the Rights of Indigenous Peoples, the United States, Canada, Australia and New Zealand, all with significant indigenous populations voted against it. While the Declaration talks about recognition, it provides no imperative for the recognition of the sovereignty claims of First Nations.

In Canada, First Nations control the land (reserves) on which they live. They have rights of various kinds (both through treaties and constitutional mandates) that fall short of sovereignty, but guarantee greater independence than almost anywhere else in the world. The Sarayaku in Ecuador, the Mapuche in Chile, the Amerindians in Guyana, the Adivasi in India, and the Yonggom in Papue New Guinea have far fewer protections. In Israel, the 46 Bedouin communities in the Negev are not even listed on official government maps and their long-standing land claims have never been addressed by the Israeli Supreme Court.

Sovereignty (i.e. full recognition of their status as independent states) may be beyond what

First Nations can hope for in this era, but greater autonomy -- and perhaps even independence with regard to a range of resource, education, and justice issues-- ought to be negotiable.

I don't see, though, how the sovereignty claims of First Peoples can be resolved in the courts of the very countries that have preempted their rights. And, I don't think it is very likely that existing national governments will agree to have these claims adjudicated in international courts. To do so would mean allowing international bodies to contravene national sovereignty. (We've heard that argument a lot in the United States whenever questions of the World Court's jurisdiction are raised). That leaves the entire burden on individual First Nations to mobilize political support (both locally and globally). Given their lack of financial resources and their unwilling to engage in domestic politics (which would put them in the same position as any other interest group in a country when what they want is recognition of their sovereign rights), this is not a promising strategy. An international mediation approach might be worth considering. In the same way that mediation has been used to resolve war and peace issues between contending nations as well as among waring factions within a country, it could be used to provide an in informal context in which national governments and First Nations could explore alternatives to full sovereignty.

See Lawrence Susskind and Isabelle Anguelovski, Addressing the Land Claims of Indigenous Peoples published by the MIT Program on Human Rights and Justice for case studies of efforts by 14 indigenous peoples around the world to pursue their land claims.

(This can be downloaded for free at http://mit.edu/phrj/publications-phrj/indigenous-peoples.pdf)

Urban planning: The key is collaboration

2009-06-09T06:16:00.000-07:00

Urban planning is a profession. People all over the world are trained to be urban planners and they have been for a long time. They study a variety of things including patterns of urbanization, land use and the design of cities, techniques for financing economic development, community organizing and mobilizing strategies, approaches to ecosystem maintenance and restoration, and the history of plan making. More than ever, planners are viewed as generalists with a specialty. Generalists in that they need to know about all the possible ways of intervening --through a complex web of institutions -- to improve the quality of life in places and spaces. Specialists in that the various sub-sectors in which they work (transportation systems, housing production, waste handling systems, social service provision, green building design, information management, job creation, ecosystem management, etc.) require increasing depth of knowledge to be effective. Above all, planners must know how to reconcile conflicting claims in the face of limited resources. It is not possible to take action in the public arena without political support. So, planners have to know how to generate an informed constituency ready, willing and able to push for change.

If planners think they only work for whoever happens to be in power at the moment, they will quickly be pushed out as new leaders are voted in and old leaders are put out to pasture. If planners claim to be above the political fray (working on behalf of some vague "public interest" that only they understand), they'll also be out of work quickly because they won't be able to secure the political mandate they need to be effective. If they try to argue that their role is to provide independent technical advice they'll quickly be outdone by other professionals with more in-depth technical training or greater expertise. The only way planners can make a case for the indispensable role they play is to argue that they are uniquely skilled to broker interactions among those in positions of power, stakeholders who make up the constituencies of those who are elected and appointed, and the technical specialists who have a great deal of "know how" but very little "know why." Planners need to be "implementation specialists" who can make things happen.

Implementation specialists need three kinds of specialized knowledge. They need to know how to frame problems in tractable ways. The need to know how to facilitate joint problem solving. And, they need to know how to read and take action within complex institutional settings. If I try to lift a heavy object in the wrong way, I won't be able to move it, and I'll hurt myself in the process. But, if I lift it properly I can move it anywhere I like. Problem setting, or framing as it is sometimes called, requires in-depth knowledge of the systems or environments within which I'm operating. Especially when there are lot of players involved (and they feel strongly about things), skilled facilitation is the key to generating informed agreement and meaningful commitments. I've got to help people use their time wisely and deal with their differences in constructive ways. Charting a course of action in a complex setting and convincing others to follow suit requires knowing how to build trust, assume the temporary mantle of leadership and communicate effectively. All these competences can be taught, although the learning proceeds more quickly in coaching (inductive) rather than didactic (deductive) settings.

Urban planning fails whenever designs, policies and programs are imposed on unwilling or unsuspecting stakeholders. And, phony commitments to participation or consultation don't fooled anyone. Decide-announce-defend has been the mantra for far too long (and it still is) in a many urban planning settings. Serious consultation requires that problems be defined jointly, options be considered together (in light of information collected in concert), decisions be made transparently and accountably; and monitoring, adjustments and learning be truly collaborative. Decision-making responsibility and political power may be asymmetrical, but it is nevertheless in the interest of those in positions of authority to find out what they can and should do that will win the broadest possible support. Planners can help. Urban planners needs to know how to build informed consensus, especially in situations where the wrong policies will put lives in jeopardy.

The urban planning field is going through one of its periodic crises of confidence. While the majority of the earth's population is now living in urban areas, planners wonder whether they have an important role to play. Given the claims of other professions (like civil engineering, management, architecture and applied social science), planners wonder how they can compete. As it turns out, there is no other profession better equipped to build informed agreements on what ought to be done (to improve the quality of life in all kinds of places and spaces). There are no other professionals with a clearer sense of the kinds of changes that are important or how to build consensus regarding the most effective ways of realizing them.

Governance: What does it mean? And, what is good governance?

2009-06-02T04:54:00.000-07:00

We hear the term governance all the time. Sometimes it is used to characterize corporate relationships among stakeholders, stockholders and boards of directors. It is often used in international circles as a way of characterizing relationships among sovereign nations -- who are not obliged to defer to a higher authority -- or among governmental and non-governmental organizations who interact, but are on very different levels. Sometimes governance is used mistakenly as a synonym for government; but, government refers to the structure while governance refers to the style or method by which decisions are made and conflicts among actors are resolved. Politics is related, but different. It refers to the exercise of power within governance. Governance is about hierarchy, custom, style of interaction and decision rules. When organizations or groups of actors are chided about the way they govern themselves, it often means that they are not paying enough attention to the way they involve (or communicate with) their members prior to making decisions.

Imagine a large trade association made up of hundreds of members who have chosen to join because membership guarantees them a range of direct and indirect benefits. As members, they expect to have some say about the policies, standards and rules by which the association governs itself. They may try to be appointed to sub-committees or volunteer to join a working group to draft a report or suggest changes in policy. The full assembly, though, or an elected Executive Committee must make the final decisions. Regardless of the size of the group, they will rely on explicit rules to control how decisions are made. They may develop parallel unwritten customs by which certain tasks are handled (and the formal rules are by-passed with the tacit concurrence of the membership). And, over time, every group or assembly need a process by which it can amend its formal rules and informal customs. Above all, members want to be able to be able to hold their elected and appointed leaders accountable for operating "according to the rules."

Most organizations rely on some combination of voting and informal conversation. They might appoint task forces or sub-committees to produce proposals by consensus, but require a majority (or even a two-thirds) vote of their Executive Committee or the full membership to make a formal decisions. They might use weighted voting to ensure that there is a minimum level of support from various sub-categories of the membership before any action to be taken. The combination of formal decision rules (like majority voting) and informal procedures (like an informal commitment to continue talking until consensus is reached) constitute an organization's governance style.

I often wonder why more groups, organizations and associations (at every level) don't formally adopt a consensus building approach to governance. I presume they rely on voting because they are worried that consensus won't guarantee a clear result when they need a decision. But, these same organizations are likely to expect their task forces, working groups and sub-committees to operate on an informal consensus building basis. Their worry, I guess, is that factions will form and internal politics will make it impossible to take formal action if they operate on a consensus basis. There are three ways of heading off such problems. First, important problem-solving and group decision-making efforts should be facilitated or mediated by trained professional neutrals. Most people don't realize that skilled mediators can help with consensus building long before an impasse is reached. Indeed, their involvement can be the key to avoiding a confrontation. When someone who knows what they are doing (and is not trying to steer the group toward a particular outcome) is managing the conversation, it is much easier for a group to reach agreement. Second, the facilitator or mediator should undertaken confidential and not-for-attribution conversations with as many of the participants as possible before any important meeting. This will make it easier for the neutral to help the group set an appropriate agenda, manage time, make sure that everyone is heard, and think ahead about how fundamental conflicts might be re-framed for the good of the group or organization. Third, the way that decisions are posed has a lot to do with whether or not consensus can be reached. If a group is given a package of proposals (or a set of contingent alternatives) to consider at one time, it is much easier to get the group to accept what is being proposed. It is when agenda items are considered one at a time, and each becomes a knock-down, drag-out battle that consensus building becomes difficult. Rather than fight about who is right regarding an uncertain future, "if-then" options can allow the group to proceed with contending sides each certain they have gotten their way. Once participants know that issues of greatest concern to them will be addressed in a manner they find comfortable, they are much more likely to let others in the group "win" on issues they find most important to them.

We know all this, yet, most governance processes are not professional facilitated or mediated. They do not begin with an agenda, time table or neutral manager working to ensure that the important concerns to participant will be addressed. And, they tend to take issues up one at a time, exacerbating conflict and making it harder to reach agreement. A great many groups say that are committed to collaborative governance, but they are not. If they make decisions by majority voting, then they are not committed to collaborative governance.

Governance that relies on a consensus building approach is more likely to satisfy all its members. (Their interests are guaranteed to be met.) For those concerned about the efficiency of collaborative governance, there are simple ways of ensuring that even the most divisive issues can be framed and discussed in ways likely to yield informed agreement in a relatively short time.

Green Technology Innovation

2009-05-10T12:10:00.000-07:00

Population growth is increasing. Efforts to raise the standard of living of the many billions of people living in poverty should also continue. Therefore, the only way to achieve more sustainable development in the face of all that growth is through technology innovation. More people spending more money on more things will surely use up our finite resources and create unmanageable waste streams. Only if we can figure out how to house, feed, hydrate, transport, employ, heat, cool and nurture billions of people more efficiently will we be able to reduce greenhouse gas emissions and maintain acceptable quality of life levels.

So, it is important to understand how to promote green technology innovation "at scale." We need more than a few gizmos and gadgets -- we need continuous technology innovation at a global scale that enables us to (1) substitute information and communication for transportation, (2) quit wasting enormous amounts of energy and find cost-effective ways of re-using materials of all kinds; (3) live satisfying lives at higher densities; (4) substitute renewable energy of all kinds so we can stop relying on dwindling stocks of polluting fossil fuels; (5) preserve water supplies and other important ecological resources while maintaining the full range of nature's services (that will otherwise cost us vast sums to duplicate artificially); (5) rely on local sources of food; (6) build more energy efficient and healthier buildings while preserving historical structures; and (7) do all of the above in ways that increase rather than decrease personal autonomy and enhance our capacity to live and work together.

I believe the consensus building approach to collective decision-making is the only way we will be able to promote green technology innovation at sufficient scale to achieve a meaningful shift to more sustainable patterns of development.

Efforts of one group or segment of society to impose its views about sustainability on others who are unwilling will fail. The costs of contentiousness and the difficulties of enforcement make the imposition of sustainable development policies on grudging segments of society almost impossible.

The good news is that we can achieve green technology innovation at every level -- local, state, national and international -- while reducing costs (and increasing personal benefits). There don't need to be any losers in the long run. Once this is clear, it should be possible to earn across-the-board support for green technology innovation. There are three steps involved in getting this idea across. First, we need to clarify the real costs (to everyone) of continuing to do things in unsustainable ways. The costs of duplicating nature's services, for example, when we carelessly undermine normal ecological functions, must be factored into the price of everything we buy and use. When people see what the "true costs" are of wasteful energy practices, new investments in energy efficiency (that pay back what they cost initially in just a few years) will garner strong support. Second, we need to make explicit the net present value of everything we do -- both publicly and privately (i.e. what everything costs us in current dollars if we take account of the long-term costs we are imposing on ourselves). Third, we need to hold everyone accountable for the trade-offs they make when they decide to maximize their short-term self-interest at the expense of everyone else's long-term interest.

It shouldn't be that hard to do these three things. In the same way that supermarkets are required to post unit prices and make the contents of each product explicit (i.e., what's the per pound or per liter cost of that product? what percentage of our daily required intake does it provide?) so, too, everyone selling any product or service should be required to show the "full cost" of what they are selling using a standard system of calculating "sustainable prices."

In addition, we should all be required to include a simple sustainability statement when we file our taxes. If we are using more than our fair share of natural resources or emitting more than their fair share of pollution of various kinds, we should have to pay a surcharge. All of this money should be devoted to green technology innovation undertaken by public-private-civil society partnerships. What we call Public Entrepreneurship Networks (PENS). See web.mit.edu/dusp/etpp for more information.

The annual budgets of every unit of government should make explicit the discounted present value of their resource utilization patterns so consumers know what they are getting for their tax dollars.

Making all this information explicit would force everyone to make choices more self-consciously. If this were coupled with public policies setting norms of resource utilization and per capita limits on pollution, and taxing performance outside fair share norms, funds would build up to support green technology innovation. If innovation were supported only when it was undertaken by public-private-civil society partnerships, the new technologies that emerge would generate returns on investment split between private and public sources.

Technology innovation follows a familiar pattern - invention, development, and dissemination. Recent theories of technology innovation, however, show how decentralized and consumer-led modifications at each step can enhance the usefulness and the relevance of new technologies. More open innovation networks produce better results (although openness tends to undermine the return-on-investment to private owners or inventors). When public entrepreneurship networks (PENS) are the innovators, the continuous streams of benefits that come from easier and wider utilization more than equal the benefits that would otherwise accrue to individual entrepreneurs. To qualify for these funds, however, consensus needs to be generated among actors from all three sectors. We see a growing number of examples of PENS-like success stories. (Email me at susskind@mit.edu if you want more information about them.)

Climate Change: Adaptation vs Mitigation

2009-04-05T07:00:00.000-07:00

There is a substantial risk that the continued release of greenhouse gases into the atmosphere will cause a range of adverse impacts including global warming, sea level rise, intensification of storms, changes in historical patterns of rainfall (and drought), threats to endangered habitats and the possible spread of infectious diseases. Even if the countries of the world agree to take aggressive steps to stabilize or reduce CO2 emissions over the next twenty to fifty years, there is still a strong possibility that the cumulative effects of past greenhouse gas emissions will cause sea level to rise and storms to intensify for at least the next several decades, and probably longer. Think about the worst storm you or your family can remember and the damage it caused. What if storms like that occurred every ten years instead of every 100 years?

Given such risks, it makes sense to search for low-cost ways of reducing CO2 emissions. Collectively, such steps fall under the heading of mitigation. We also need to be thinking about how to reduce the severity of whatever impacts do occur. These are generally called adaptation measures. In the same way that cities and towns plan ahead for natural disasters like earthquakes, they should take steps to deal with the risks posed by climate change and sea level rise. This is particularly true for coastal communities.

There is a consensus building approach to managing the risks associated with climate change. First, coastal communities need to forecast the likely impacts of sea level rise, storm intensification, changes in rainfall patterns, and potential public health threats. They need to identify the ways in which their community is vulnerable. While this is not easy to do, most communities have documentation of the worst storms that have occurred in their area and the damage they did. If there are photos, these can provide particularly useful evidence of what a two foot or an six foot rise in sea level might mean. Communities can use various computer-based forecasting and scenario-casting tools to anticipate the risks that they face. Then, they need to inventory their options. What can they do to protect themselves? Our team at MIT (http://scienceimpact.mit.edu) has identified five types of responses: reduce the vulnerability of the built environment by removing certain important structures from harm's way or protecting them in place by adopting new building or land use codes; protect water and waste water infrastructure by increasing water supplies and decreasing demand; protect wetlands and wildlife by preserving existing assets and enhancing their resiliency; preserve farm and forest land in the same ways; and invest in public education (including emergency preparedness, evacuation strategies, and civil defense). Once a community has an inventory of policy options, it needs to organize a public forum to consider which options make the most sense from a risk management standpoint. A lot of groups and individuals will need to be involved in joint fact finding and collaborative problem solving. (Professional facilitation can make the job easier). Finally, communities need to enhance their adaptive management capabilities. That means clarifying which agencies and organizations have responsibility for monitoring risks and implementing risk management strategies given new information.

These are not merely technical tasks, they involve political choices, particularly about what money to spend and what added restrictions to impose on private property holders. Such decisions can't be left to experts. Communities must engage representatives of all relevant stakeholding groups in making these hard choices. And, since we are talking about very complex "socio-ecological systems," nobody is going to get it right the first time. A process of continuous public learning and adjustment will be required.

The global battle goes on over who should pay for mitigation and whether we can restrict

CO2 emissions while simultaneously encouraging economic growth in the developing world and economic recovery in the developed nations. Whatever these decisions, however, there is a high likelihood that we have already begun to feel the effects of climate change. We can not ignore the risks (think Katrina and what happened when that city's infrastructure was overwhelmed). A consensus building approach can make it easier to reach fair, efficient, stable and wise agreements about how best to adapt.

Dealing with an Angry Public

2009-03-22T05:13:00.000-07:00

On April 30th and May 1st, I offer a two day training program called Dealing with An Angry Public (www.pon.execseminars.com). Along with my Harvard Business School colleague Michael Wheeler and Jeff Ansell, a well known Canadian journalist and media consultant, we show how a consensus building approach can be used to reshape interactions with various publics that are angry with you -- either because of what you have done, what you propose to do or what you stand for. Most of what passes for media training in such situations focuses on getting the right message across. We teach how to go beyond that and interact with angry publics by (1) acknowledging the concerns of the other side; (2) encouraging joint fact finding; (3) offering contingent commitments and promising to compensate unintended but knowable impacts; (4) accepting responsibility, admitting mistakes and sharing power; (5) acting in a trustworthy fashion at all times; and (6) focusing on building long-term relationships.

In my award-winning book with Patrick Field by the same name (Dealing with an Angry Public, Free Press, 1995), we offer a whole series of illustrations that show why merely "sending messages," however they are framed, is not nearly as effective as face-to-face negotiation that aims to confront and resolve differences head-on. Too much of the crisis communications literature side-steps the need to negotiate. And, almost all of it falls short because it assumes away the possibility of applying a mutual gains approach. No matter who is angry at you or for what reasons, you can advance your interests by knowing the right way to interact with people.

If you refer to this blog when you register, we'll cut the registration fee by $500. Whether you work in the public sector or the private sector this highly interactive seminar (which will give you numerous chances to role play different kinds of conflict situations) can be of enormous help. More than 2500 people from all over the world have given our Angry Public seminar an average rating of over 14 on a 1 - 16 scale.

Why Would Anyone Bother to Cooperate?

2009-03-15T05:17:00.000-07:00

In his new book, Free Riding, Richard Tuck challenges long-standing views about social cooperation. Free riding, as most people know, involves decisions that many of us make not to get involved in group efforts because we can see that the outcome will probably be the same whether or not we participate, and we will reap the benefits in any case.

"Why bring something to the pot-luck supper? The others will bring more than enough and I'll get plenty to eat." This is how a supposedly rational or self-interested individual is supposed to tote up gains and losses (to them) and make intelligent judgments about what to do. Tuck thinks otherwise. He says, (that at least historically) most people have felt a moral compulsion to cooperate (regardless of what others might do). They cooperate because it's the right thing to do. In addition, by acting cooperatively they can take credit for helping to make something good happen.

Free riding leads to what is generally known as the "tragedy of the commons." The tragedy arises when everyone decides it is not in their best interest to take care of a common resource, so no one does, and they all suffer. This analysis has led many observers to conclude that the only way to get people to cooperate (i.e. to do "what they ought to do") when their collective well-being depends on it, is to coerce the appropriate behavior. More recent analysts, however, including Elinor Ostrom (Managing the Commons), have documented numerous instances of successful voluntary efforts to manage common pool resources. Ostrom's work suggests that the tendency to "free ride" isn't as widespread as some people think. Tuck offers an elaborate philosophical explanation for why relatively current notions of (self-interested) rationality have taken us in the wrong direction. He suggests that for many centuries " the idea that we should not collaborate where the outcomes would clearly be beneficial to all of us" was "very far-fetched." Tuck's point is that cooperation is often in our self-interest, even when our contribution might be negligible and even if we will share in the benefits if others take all the responsibility. I would argue that contributing to a group effort is not just the moral thing to do (the 18th and 19th century view) , it is actually the rational thing to do when we think about the long-term benefits (to us) as well as the long-term losses (to us) if everyone chooses to free-ride. We don't need a coercive government to help us see that. So, I think there is a utilitarian or instrumental argument against free riding, and the economists have, indeed, got us headed in the wrong direction.

Consensus building efforts in the public arena depend on voluntary cooperation on the part of a great many stakeholders. It is not always easy to explain at the outset why being part of a collaborative policy-making or problem-solving effort will produce a "better" outcome (for everyone involved). Nevertheless, that is the argument we try to make. Some officials seek to "sell" cooperation entirely in terms of the responsibilities of citizenship, in much the same way they argue that everyone should exercise their right to vote. In general, though, I think we can make a strong case for cooperating in self-interested terms as well. "You should be part of the upcoming effort to figure out how your community is going to grow and develop. If you don't get involved, others may take the town in directions that erode your property values and alter the way of life that keeps you here." That argument only carries weight, though, when those being asked to get involved think that the officials will listen to them. The key to that, in my view, is the choice of the decision rule that the participatory effort employs.

If a group decides to vote on every decision and let the majority rule, then anyone with a distinctly minority point of view is sure to feel that there impact will be negligible. That's why a commitment to a consensus building approach -- one in which groups "seek unanimity but settle for overwhelming agreement" is so much more likely to attract the full range of stakeholders. Parties say to themselves, "They'll have to listen to me. They'll have to find a way to meet my wishes as well as everyone else's, or they won't be able to take any action at all."

People cooperate for three reasons: (1) because they see what will happen to them if everyone chooses to free-ride; (2) its the moral thing to do; and (3) they want to be able to shape decisions and affect outcomes.

Ethnic and National Reconciliation

2009-03-04T10:52:00.000-08:00

I can remember a moment when it seemed impossible that certain groups or nations could ever reconcile: East and West Germany, North and South Vietnam, North Ireland and England, black and white South Africa, Hutu and Tutsi in Rwanda. Today, it seems equally implausible that North and South Korea, Tibet and China, Israel and Palestine, or Suni and Shia in Iraq will ever reconcile. Yet, we should remember that the ruined relationships that seemed impossible to repair not so long ago were dramatically transformed. The question is, "How did that happen?"

I'm convinced that consensus building played a part. Four principles, in particular, explain the shift from a climate of hatred and mistrust to one of co-existence: (1) acknowledging the other; (2) the assistance provided by intermediaries; (3) forgiveness (or the catharsis of apology); (3) a focus on the next generation; and (4) people-to-people and not just leader-to-leader interaction.

The first step in any reconciliation process is an acknowledgment of the other -- their right to exist, their unique culture and their claims or grievances. That is not to say that reconciliation must begin with a promise to "give the other side everything it wants." Rather, a statement that acknowledges the other side begins by showing that their enemies "hear" (but don't necessarily agree with) what they are saying.

At the beginning, when it seems inconceivable that two sides might reconcile, trusted go-betweens, usually working quietly behind-the-scenes can carry messages -- including the acknowledgments that each side needs to hear. How intermediaries are identified varies in each case. They don't necessarily need to be trained mediators. Rather, they need to be individuals who are not "in it" for themselves and are trusted by the parties. And, they need to know how to speak to and about both sides.

In some instances, a willingness to forgive or apologies (on both sides) are a necessary step in reconciliation, but not always. When they do come into play, it is important that they are delivered in a believable fashion. Again, a willingness to forgive doesn't mean that either side must drop its demands for justice or compensation. How public apologies or statements of forgiveness are worded, matters a lot.

Any effort to "put a country back together" or heal the wounds of decades (or centuries!) of killing must focus on how the next generation thinks and acts. Elders who fought each other can either turn their children against the other side and extend the conflict, or take the steps described above and put an end to a conflict. In either case, the question is how the next generation sees its responsibilities. A generation or two after a war, the children of those who killed each other can imagine close relationships with former enemies. But only if their parents give them permission to do that. Those who fought must teach their children to think differently about their enemies.

In the aftermath of wars, peace treaties are signed. These are usually agreements between the heads of state or the titular heads of various groups. The conflict truly ends, however, when the people represented by those leaders change their thinking and commit to a new way of interacting with former enemies. The signing of a treaty can't accomplish this. Only sustained people-to-people interaction over an extended period can rebuild trust and undergird the commitments announced in a peace treaty. A program of people-to-people peace building is as important to reconciliation as a formal treaty.

Reconciliation occurs when the right kind of problem-solving setting is created and managed effectively, the right words are spoken in a believable fashion, individual and group behavior conforms to what is being said, and institutional/organizational arrangements are put in place to reinforce (over an extended period) the commitments that are made. These are the steps in a consensus building process.

Cutback Planning

2009-02-26T18:52:00.000-08:00

There are a great many companies, public agencies and not-for-profit organizations facing severe revenue shortfalls. They have to shrink their operations, find more efficient ways of doing what they do, or identify new revenue sources. Too often, their leaders fail to realize that they can use a consensus building approach -- one that emphasizes engagement, transparency, and accountability -- to accomplish these goals.

A consensus building approach (1) involves all employees, managers and even clients in determining which objectives and responsibilities are most important; (2) uses performance metrics to determine what's working well and what's not; (3) clarifies the decisions that management must make and helps to justify its actions; (4) capitalizes on current challenges by figuring out how to expand and not just contract; and (5) emphasizes organizational learning.

Engagement: Cutbacks are demoralizing. Employees who keep their jobs, are upset when co-workers are let go. If even you survive a round of budget cuts, you worry that you'll be next. So, involving everyone in reviewing priorities, identifying critical assets and specifying cuts that will be least damaging, maintains solidarity and increases the legitimacy of the tough decisions that must be made. It helps to maintain morale after cuts have been made. It's a lot easier to feel OK about keeping your job (while a friend loses his) if everyone has had a hand in evaluating the available options. Management will still make the final decisions, but consulting widely is almost always worth the effort. I'm not talking about creating a web site and asking for anonymous suggestions. Rather, each work unit should be asked to meet, discuss and write down its suggestions: which activities (not people) ought to be retained or even expanded (as a way of generating new revenues), and which are less important. Everyone should be required to list both, and explain why they take the position that they do.

Transparency: When cutbacks have to be made, there's a tendency for management to circle the wagons. Lots of "high level" meetings take place behind close doors and paranoia increases. The consensus building approach, on the other hand, calls for more transparency, more sharing of information, and most of all -- and an explicit enumeration of the performance metrics that will be used to evaluate performance. If there is general agreement on what to measure and how to benchmark performance, final decisions about what and who to keep will seem much less arbitrary. Transparency makes it easier to maintain morale and to keep working through difficult transitions.

Accountability: Many organizations are quick to allocate the same percentage cut across all units. "Each division must take a 10% cut now, in order for us to live within the new quarterly (or annual) budget limits." But this minimizes the opportunity that a crisis creates to pursue reforms that may have been blocked in the past. Once everyone participates in defining the activities that ought to be retained and which can be cut, the next step should not be to spread the pain evenly. Rather, incentives ought to be offered to any individual or group that can come up with a more efficient way of achieving a priority objective, or finding a new revenue stream. Each participant and each unit should be held accountable for doing all it can to reduce overall costs and increase revenues. A consensus building approach seeks to encourage joint problem solving, and disregards defensive arguments for maintaining the status quo.

A consensus building approach assumes that mangers are not merely responsible for making tough choices. Rather, CBA expects managers to engage everyone in thinking through priorities, imagining innovative ways of doing more with less or building on vital assets. CBA is as concerned about the attitudes and productivity of the workers who remain after cuts have been made as it is about making cuts. It is also as focused on revenue enhancement as it is on cost reduction.

At the end of every round of cutbacks, organizations should review what they can learn from their experience, however painful. What might they do differently next time and why? In light of what happened, can they identify organizational changes that will make engagement, transparency and accountability easier to achieve the next time around?

Adaptive Management

2009-02-17T05:43:00.000-08:00

Most environmental advocates and planning professionals know that every effort to manage natural resources or deal with threats to public health and environmental sustainability ought to proceed on a step-by-step basis. The systems involved are so complex that most efforts to "solve problems" are likely to have unanticipated results. Policy-makers act like they "understand the problem fully" and "know the best solution" when they pass legislation or adopt new regulations. Those of us most knowledgeable about the human-ecological systems involved, however, realize that the complexity of these systems makes it impossible to anticipate what's going to happen with much certainly. There are just too many factors and too many interactions we don't understand. So, an adaptive management approach is what is called for. That is: take one modest step at a time; make a best approximation of what's causing the problem, choose an initial response that seems like it might help, monitor everything to determine what the impacts of the initial move are, and then make adjustments and try again. Plan on doing this repeatedly until everyone involved learns enough about the system involved to approximate the desired solution.

Of course, for an adaptive management approach to work, all the relevant parties (especially those with the most at stake) need to be involved -- helping to diagnose the scope of the problem, assisting in the selection of the initial actions to take, specifying what can and should be learned from the monitoring efforts, reviewing the real-time output of whatever monitoring is done, interpreting the findings together with the others involved, and sharing responsibility for making successive rounds of adjustments. Adaptive management requires ongoing consensus building. Unless all the relevant parties agree on what to do at each step and what's happening along the way, policy-makers and experts will just zig-zag from one strongly held view to another depending on who has the most money and energy to invest in lobbying. It would make so much more sense if all the parties committed ahead of time to a process of shared learning through jointly managed experimentation. Such efforts are best facilitated by professional neutrals. They have to be designed collaboratively from the outset.

Consider the case of the recently released report of the special court created to review the claims that childhood vaccines cause autism. The three "special masters" determined that there was insufficient scientific evidence to substantiate the claims in the law suits that motivated this review. In the end, though, the people who were upset in the first place were not convinced by the special court's conclusions. Instead, why not invite representatives of all the groups involved to work together to formulate whatever analyses of existing data (or the design of a new study) everyone agrees would be dispositive? Why not involve all the relevant stakeholders in selecting a panel of experts to guide such studies or such a review? Why not subject the preliminary findings produced by the jointly selected experts to review before the panel makes its findings public? We might even have approached the current effort to formulate a Stimulus Package in this way. The economy is too complex to know what will and won't work. So, why not talk about first steps (rather than what will "solve the problem," what will be measured and how, what benchmarks all "sides" agree to use to gauge progress, and what the membership of a bipartisan panel should be to monitor preliminary results and suggest the next round of adjustments? In the Consensus Building Handbook (Sage, 1999) my colleagues and I outline what we consider to be best practices when it comes to joint fact finding and a consensus building approach to adaptive management.

Governing Communities of Faith

2009-02-09T09:09:00.000-08:00

One response I often get to the idea of a taking a consensus building approach to governance is that it won't work because people with conflicting values and interests can't possibly reach agreement through informal conversation. The only way to settle their differences (peacefully), or so the argument goes, is to let the majority rule. While I don't agree, what possible reason, then, could there be for communities-of-faith (i.e. groups associated with particular temples, parishes, or churches) to operate by majority voting? They are, by definition, groups that share common values and interests.

I am part of one community-of-faith that used to spend far too much time bickering about budget allocations, hiring, and management of our religious programs and building. While religious events were inspirational and all-embracing, our annual meetings at which budgets had to be set and general policies made, were painful. In fact, people stopped coming. The same people who couldn't be more considerate of their co-religionists at Sabbath services, behaved like the most cynical and power-hungry state legislators or municipal town meeting members when it was time for annual meetings. In my Congregation, several hundred families meet for the better part of the afternoon to make policy, hiring and budget decisions. For many years, they almost always got tangled up in the logistics of parliamentary procedure -- with its seconding of motions, formal amendments, votes to move the question, etc. Along with a small group that couldn't stand it any more, I proposed that we adopt a consensus building approach (CBA) to governing ourselves. We re-wrote our by-laws (which, by state and federal law, we must have) to substitute the key elements of CBA as our operating manual. We actually used Robert's Rules to vote out Robert's Rules (at least for a three year trial period). Annual meetings are now run very differently. Pre-meetings are used to ensure wide-spread involvement in generating proposals and draft budgets. A facilitator guides the annual meeting discussion. Instead of formal debate, we have collaborative problem-solving. We search for ways of making sure that we meet almost everyone's interests. We never settle for a bare majority when with a little more work we can usually reach an informed consensus. While we are not quite as demanding as Quaker meeting (which will remain in conversation until everyone has had their say and everyone is in agreement), members now come away feeling proud about how we govern ourselves.

For more on CBA see Breaking Robert's Rules: The New Way to Run Your Meeting, Build Consensus and Get Results (Oxford, 2006) with modified versions in Chinese, Japanese, Russian, Portuguese, Dutch (forthcoming) and French (forthcoming). Or, see the web site www.breakingrobertsrules.com.

Environmental Justice

2009-01-31T03:16:00.000-08:00

We care about environmental justice because it doesn't seem fair that poor communities of color should suffer disproportionate health risks. If we can demonstrate that companies have purposely located polluting facilities in minority neighborhoods, the law provides a remedy. When we can't prove intent, though, it's hard to make charges of environmental racism stick. Unfortunately, there are a great many situations in the United States where African-American, Hispanic, and Native American populations are suffering far greater health and environmental risks than their caucasian counterparts, whether a company intended this or not. These residents live next to riskier facilities (often unwittingly) because the price of land and the cost of housing are lower, or because it is the only place they were granted access. It you were the family involved, it wouldn't make a bit of difference what the company's intentions were, you'd want the situation fixed -- immediately. That's the problem. Many law suits have been filed under the law designed to remedy environmental injustice, but they have mostly failed. Discriminatory intent is hard to prove. A consensus building approach, though, one that doesn't rely on litigation, can produce results even if no discriminatory intent was involved.

In a study I prepared for the Office of Environmental Justice in the U.S. Environmental Protection Agency with my colleague Gregg Macey (who is now on the law school faculty at Fordham University), we demonstrate that communities suffering environmental injustices (whether purposeful or not) can negotiate "good neighbor agreements" and other remedies. The keys to success are: a well-organized neighborhood group that can document the risks to which they have been exposed; a governmental body of some kind that is willing to listen (even if it doesn't have the power to compel a polluting party to fix the problem) , and the help of a mediator.

A great many environmental advocacy groups reject the notion that there is anything to gain by sitting down with a company they think is poisoning them. They are willing to work hard to mobilize (and gather information that might be used in court), but they are skeptical that a powerful corporation will pay any attention to what they have to say or take corrective action unless forced to do so by the court. I've provided training courses for the leaders of environmental advocacy groups, and I understand their concerns, but Gregg and others have been able to document numerous instances in which negotiation (and mediation) have produced results, even when litigation has failed. The trick is to work with scientific advisors (often from nearby universities) to demonstrate that the community is experiencing serious health risks, whatever their cause. Another colleague, Jason Corburn at the University of California-Berkeley (in his book entitled Street Science) shows how residents in immigrant communities in New York City were able to do this with help from public health experts at Columbia University. A third colleague, Dara O'Rourke has shown, it is quite possible to train residents to gather and analyze "fence line" data showing that pollution problems are coming from nearby industrial facilities.

With plausible data in hand, an organized residents' group can approach local facility managers (or executives at corporate headquarters) about discussing possible changes in operating procedures, organizing continuous monitoring, or helping families that have suffered. By inviting regulators as well as elected officials to host such informal "problem-solving sessions," residents can make it difficult for managers to ignore their requests. And, public officials can host such sessions even if they don't have sufficient grounds to act. They are usually willing to host a session to review the evidence "on its merits." And, if an agreement can be reached voluntarily-- even if it goes beyond the authority of the regulating body -- many agencies are perfectly happy to include the terms and conditions of such agreements as part of revised permits, and enforce them.

Informal conversations of this kind run the risk of deteriorating into shouting matches, so it is often essential that they be mediated by "professional neutrals" acceptable to all sides. By preparing appropriately, especially getting everyone to agree to ground rules, mediators can make the difference between successful and unsuccessful problem-solving. A mediator can also be named in an informal agreement as the person to call when one side feels that the other isn't living up to its promises.

The consensus building approach (CBA) to pursuing environmental justice can work just as well in international settings, when multi-national corporations are involved in mineral extraction or other development activities (whether licensed or not) that are hurting indigenous groups. An organized constituency, with independently gathered evidence in hand, can compel a company to attend a problem-solving session, especially one hosted by a multinational agency and mediated by a credible neutral. CBA doesn't guarantee success, any more than confrontation or litigation do, but it is an option that should be taken seriously.

For more information see Susskind and Macey, Using Dispute Resolution Techniques to Address Environmental Justice Concerns: Case Studies. Prepared by the Consensus Building Institute for the U.S. EPA Office of Environmental Justice, 2003

Siting Energy Facilities

2009-01-20T06:45:00.001-08:00

It doesn't seem to matter whether we are talking about energy from fossil fuels or renewable sources, there is strong opposition to proposed generating facilities. The Cape Wind project, a large wind energy facility proposed for the waters off Martha's Vineyard, has been the target of fierce opposition from well-known and well-heeled political opponents. Terrestrial wind projects planned for high ridges in the mountains of New England and in the plains of the western states have been challenged on aesthetic and environmental grounds. Large solar energy plants have been blocked all over California. The same arguments used to contest the building of coal- and gas-fired power plants all over the world, are now being used to haltthe construction of renewable energy facilities: they will have unacceptable environmental and aesthetic impacts;they will unfairly reduce property values; they will preclude other more desirable land uses, and they will cost too much.

The people likely to benefit substantially from new facilities -- either because they will be employed in some supporting or related industry or reap a direct financial return as an investor -- are usually small in number compared to those who will be (or think they will be) adversely affected. So, even if the "gains to all the gainers" are sure to outweigh "the losses to all the losers," those who fear large or serious losses will find each other and take whatever actions they can to block new projects. It doesn't matter whether they are renewable energy projects or coal-fired power plants. The much larger number of beneficiaries who stand to gain (perhaps just a little over a long period) won't be as motivated to advocate for the facility. Thus, regulators are much more likely to hear from impassioned opponents than they are to here from potential beneficiaries.

Our regulatory system requires all kinds of environmental impact assessments, risk assessments and cost-benefit analyses. These make it easy to document potential costs and possible adverse impacts -- no matter how small or uncertain. But, they almost always pay insufficient attention to possible benefits because they are much harder to measure, especially over long periods of time.

A consensus building approach to energy facility siting needs to focus on four things. First, public policy with regard to the need for more energy (or energy of certain kinds) ought to be the product of an extensive public dialogue. How will our city, region, state and nation meet its energy needs over the next several decades? Picture two pie charts. The first summarizes current demand for energy (with wedges showing all the different ways we use it). The second summarizes existing supplies(with wedges showing the different sources in proportion to each other). Then, think of the new version of each pie chart that the public wants to achieve by a specific point in time. We need public agreement on these four charts. The only way to get that is through public educational efforts involving joint fact finding.

Then, when a decision has to be made about a specific new technology (in a particular location), representatives of all relevant stakeholders (i.e. all groups of potential gainers and losers) need to be assembled (by the relevant regulatory agencies) to seek consensus on the best way of proceeding. It will difficult, in some instances to find effective spokespeople of some of the potential losers and beneficiaries, but the government has to make sure these interests are represented. In many instances, such ad hoc groups can come up with creative promises, environmental guarantees (or trades) and compensatory arrangements that maximize benefits, minimize losses and tax specific gainers to compensate specific losers. While these will only be proposals (not legally enforceable requirements), proponents of new facilities are eager to know how they can proceed in a way that will earn wide-spread support. Regulatory bodies will gladly accept voluntary commitments from facility proponents that go well beyond what the government has a right to require -- and they will agree to enforce them -- as long as they are the product of transparent public dialogue at which all interests are represented.

Both the policy dialogues on future supply and demand targets and the negotiations over the siting of specific facilities in precise locations need to be facilitated by specially-trained environmental mediators. These dialogues can accommodate large numbers of participants in multiple problem-solving sessions (not one-time hearings). They can even be televised to ensure accountability to the larger constituencies involved.

For more on how this works see Susskind and Cruikshank, Breaking the Impasse (Basic Books, 1987), Susskind et. al, Negotiating Environmental Agreements (Island Press, 1999), and "A Negotiation Credo for Controversial Siting Disputes," (Negotiation Journal, October 1990, pp. 309-314). For evidence of how the Credo has worked see Howard Kunreuther, Kevin Fitzgerald and Thomas Aarts, "Siting Noxious Facilities: A Test of the Facility Siting Credo," Risk Analysis, Volume 13, Issue 3, pp. 301-318.

Leadership

2009-01-16T16:50:00.000-08:00

There are a great many theories of leadership -- from highly centralized, top-down (almost militaristic) models to more decentralized, bottom-up, enabling (almost group-transforming) models. Leaders who get others to do what they want by using the power to threaten, punish, or reward can, in fact, get certain things done. As we flatten organizations, however, eliminating middle management ranks and emphasizing the need for flexibility, collaboration and individual initiative, leaders who motivate or manage by exercising power are becoming obsolete. Quite a few organizations, companies and groups now put a premium on finding leaders who can motivate or catalyze networks of employees, volunteers, supporters, investors and others to take responsibility for defining and achieving the tasks that need to be addressed.

I think of these people as facilitative leaders -- men and women who help teams and networks of employees and partners set ambitious but workable agendas, problem-solve in creative ways, and support each other and the organization as a whole in the face of unexpected opportunities and obstacles.

From what we have learned in the consensus building and organizational development fields, I see three behaviors or "moves" that define facilitative leadership. First, a facilitative leader is someone who consults with the people s/he is leading to define the process by which the group will do its work or make decisions. Second, a facilitative leader is someone who will find ways to enhance the capacity of the individuals and groups involved so they have both the information and the confidence they need to make informed decisions or recommendations. Third, a facilitative leader is someone who commits to decision-making by consensus. That is, a facilitative leader won't impose a decision or settle for a majority vote; rather, they will keep working until the group comes as close as possible to unanimity on how to proceed. [See Susskind et. al, The Consensus Building Handbook (Sage, 1999) for more detail.]

Lots of leaders (including many of those who operate in a top-down fashion) claim that they want to consult or involve others in choices that must be made. But they don't mean it. What they really want is confirmation for what they have already decided or the veneer of democratic decision-making. A facilitative leader, on the other hand, makes explicit what the process will be by which the input of all relevant parties will be tapped, presents that process for review and revision by the people who will be involved, and makes sure that the process is followed. Even facilitative leaders may have to impose time constraints or other limitations. But when they do, they make these constraints explicit along with the reasons why they can't be ignored.

Capacity building is the second key task of facilitative leadership. It is not enough to invite people to have a say. A facilitative leader must give those being consulted access to the technical information or independent professional advice they need to present their concerns or suggestions in meaningful ways. They also need to hear that their informal ("local") knowledge is important and will be incorporated into whatever decisions must be made.

A commitment to consensus building often means involving a professional neutral to provide facilitation or mediation services. A facilitative leader knows that it is not a sign of weakness to ask for such help -- especially when the leader wants to have a say on particular issues being discussed, and thus isn't in a position to be entirely even-handed in engaging others in collaborative decision-making. Consensus building also requires putting the right kinds of questions to the group. For example, asking for proposals that will solve a problem in a way that meets the interests of everyone involved rather than asking for each persons favorite solution. It also means insisting that the group shouldn't seek compromise; instead, it should aim to maximize the creation of value -- coming as close as possible to meeting the concerns of everyone involved.

It's hard to be a facilitative leader; it is certainly more of a challenge than being a traditional visionary leader who is supposed to figure out what's best and knock heads until everyone does what they are told.

Management of Corporate Teams

2009-01-11T10:36:00.000-08:00

While a great deal of corporate decision-making is top-down, there are occasions when task forces or work teams representing various divisions or departments need to operate by consensus. The selection of a uniform computer architecture, for example, that each segment of the company will have to accept will be easier to implement if everyone is on-board with whatever software is chosen. While it is possible to impose a decision from the top (based on the recommendation of the IT department), the transition to a new system is likely to be a lot smoother if an informed agreement can be reached by a cross-divisional work team.

Consensus building in a corporate context usually begins with an announcement that a task force or work team has been created to figure out how to implement a decision that has already been made at a higher level. All too often, the people put in charge of such groups are selected because of their seniority rather than their facilitation skills. Thus, when this happens, it is wise for the group leader to tap a skilled facilitator to help. Instead of waiting for each division to announce its stand on what it wants or doesn't want, consensus building hinges on the initial willingness of the team leader (or the facilitator) to meet with each department or division representative to hear (privately and confidentially) what their interests are as well as the reasons they hold the views that they do. With this results of such a survey in hand, the team leader can then generate an agenda and a work plan that take account of important overlaps and differences. He or she can also summarize (without attribution) the range of concerns that the task force must address. The technique avoids personalizing disagreements.

By requiring participants to sign written ground rules committing them to make every possible effort to respond to the concerns of all the participants -- and not just the concerns of the department they represent -- the chances of reaching a consensus are enhanced. The team leader should make clear that no formal votes will be taken. Only a plan agreed to by almost everyone will be acceptable. As the group approaches resolution (within the time frame spelled out by the team leader), the participants may need to be reminded that the best interests of the company require that they invent a "package" that comes as close as possible to meeting all the concerns presented by the team leader at the outset. No team member will want the leader to report that they were the one who held the group hostage or made it difficult for the group to complete its assignment.

Consensus can be achieved within a specified time in a way that meets almost all the interests of the groups or departments involved as long a the team leader knows how to facilitate a problem-solving effort (or realizes that he or she may need the help of a skilled facilitator). The goal is to do better than a majority vote that usually leaves a lot of unhappy departments. By getting everyone into a problem-solving mode, an inventive hybrid solution (not a lowest common denominator compromise) can be found. Worst case, if the group can't reach agreement, the team leader can still propose a solution that reflects the sense of the group.

(Bi-partisan) Legislative Decision-making

2009-01-06T11:32:00.000-08:00

We've all heard the calls for greater bi-partisanship in Congress and Parliament. Especially in times of crisis, parties or factions are urged to put aside their differences for the good of the nation. But exactly how should a legislative body transform its usual approach to decision-making when it wants to operate in a bi-partisan or a consensus-building fashion? And why is this desired only in times of crisis?

In The Cure For Our Broken Political Process (Potomac, 2008), Sol Erdman and I spell out some of the ways that legislative bodies can operate differently when they are committed to achieving consensus. To begin, the body needs to identify the full range of views held by its members on an issue. Anyone who feels strongly about it should be asked to write down what he or she thinks needs to be done and why. Then, the rest of the members should be pressed to affiliate with one of these published statements. The author of each statement can then decide whether or not to modify what they are saying or merge with another author in an effort to win greater support. When a relatively small number of written positions remains (each with a growing list of supporters), the authors of the remaining statements should be brought together face-to-face to explore the conflicts that remain and to consider ways of bridging their differences. A conversation of this sort should be managed by a professional mediator selected by the leadership, with the concurrence of the authors who have come to negotiate. By the way, the process I've just described can be used by any legislative body at any time by merely voting to suspend their normal rules.

Notice that parties and party leadership do not play a critical role. Consensus is more easily reached if party leaders stand aside and let their members participate in the manner I have described. Then, when a small number of statements remains, the mediator should report back to the leadership of the Congress or the Parliament. Remember, each remaining statement will contain both a prescriptive section outlining what ought to be done, as well as an explanatory section explaining why that prescription makes sense. At that point, the full membership should be asked to affiliate with one of the remaining statements. The statement with the smallest number of supporters should be dropped. Members should be asked, again, to affiliate with one of the remaining statements. This process should be repeated until there is only one statement left with an overwhelming number of supporters. (There may be some members who prefer to drop out along the way rather than affiliate with one of the statements that remains.)

If this procedure is made explicit in advance, the authors will usually do everything they can at each stage to accommodate as many additional members as possible. The final product will by definition represent a bipartisan consensus. By abandoning majority rule and side-stepping parliamentary procedure, a legislative body can avoid the usual win-lose dynamic. By emphasizing the reasons that backers should support a statement, it is a lot easier later on for constituents to hold the representatives accountable for the positions they have taken. So, when members know that their name is attached not just to a proposal but to a list of reasons why that proposal is a good idea, they are more likely to operate in a slightly less partisan way. One can only wonder, why proceed in this fashion only in times of crisis?

International Treaty Negotiation

2009-01-05T05:10:00.000-08:00

International treaty-making is one area in which consensus building is the rule. Because countries are sovereign, a majority vote by other nations can not bind a country that doesn't want to sign a treaty. Thus, there are hundreds of treaties, but very few bind all the nations of the world. This means that any multinational coalition that wants to win support for a new treaty (like another climate change treaty) must propose something that countries will accept voluntarily. There are three ways to do this. First, countries can be drawn in on a step-by-step basis. An initial "convention" might just ask countries to agree that there is a problem that needs attention. They'll sign that. Leaders who sign can get political credit for "doing something," even though signing is just symbolic. Then, that initial treaty can be followed by more detailed "protocols" spelling out who needs to do what by when. Although some countries that signed the original convention might not endorse the subsequent protocols, many will feel obliged to follow, especially if each small step is not too burdensome. Second, a treaty can offer sweeteners -- financial incentives or other linked benefits (like access to technology) -- that make signatories better off. Third, a coalition can "shame" recalcitrant countries, either at home or in the world media, if they don't sign.

Bringing together 190+ delegations to negotiate a complicated legal agreement is no small chore. A group-appointed chair is usually tapped to lead such multi-year efforts -- although it is rare that treaty-drafting is professionally mediated. Lots of unofficial meetings are often held along the way to get the ball rolling or to generate new treaty elements. Within countries, non-government interests can bring pressure to bear on their official delegations to accept or reject proposed treaty provisions. Indeed, multilateral networks of non-governmental organizations have become increasingly important in global treaty-making. In general, it takes many years to win support for a global treaty. Each time the leadership in a country changes, treaty-makers have to regroup. Often, scientific or technical questions require special attention. And, since there is rarely an established worldwide group of experts ready to step in, technical debates often cause delays.

The consensus building approach to treaty-making puts more emphasis on getting early input from a wide range of official and unofficial parties in the treaty drafting process. It puts a premium on the mediation skills of the individual or group leading the effort. Ongoing input from a representative team of experts, chosen by all the countries involved, can overcome dramatic differences in technical understanding. And, linking restrictions that one treaty regime wants to impose with benefits that another treaty has to distribute, can help to generate agreement. For more on how these dynamics work see my articles in the 2008 National Academy of Science and Engineering's Issues in Science and Technology (www.issues.org/25.1/susskind.html) and International Negotiation Journal, 8 (2), 235-266, 2003.

Natural Resource Management

2009-01-03T11:35:00.000-08:00

Consensus building can be applied in all kinds of natural resource management disputes. Even in the face of competing demands, contending stakeholders can reach agreement on how to proceed. With a help of a professional mediator, people or groups (including government agencies) can work out who should get what portion of the land, water, minerals, or forests and for what purposes. They can do this in a way that takes account of legally-mandated rights and regulations as well as radically different needs and values. Their task is to come up with a way of guaranteeing everyone something better than what they would most likely end up with if they took the battle to court or into the political arena. Sometimes (voluntary) compensatory arrangements can make a difference. Other times, what look like irreconcilable differences can be resolved by formulating new rules about when and how a resource can be used (for example, your group can use certain portions of the lake for sport fishing during specific weeks of the year while my group is guaranteed that there won't be any motorized vehicles on the water at other times or in other portions of the lake). Neither side "wins" in the sense that the other "loses," but both achieve their most important interests. Sometimes the key is joint fact finding -- gathering believable information together. This can lead to entirely new problem-solving ideas that go beyond existing laws or practices. To see how this actually works look at the web site of the MIT-USGS Science Impact Collaborative (scienceimpact.mit.edu). Also, see Susskind et. al, Negotiating Environmental Agreements, Island Press, 1999 for more examples and theoretical background.

The Consensus Building Approach (CBA)

2009-01-03T05:57:00.000-08:00

Consensus building is an approach to group decision-making that puts a premium on problem-solving. (The problem, of course, is how to get everyone on board.) Most people approach group decision-making -- whether in a committee, a club, a locality, a community-of-faith, a legislative body, or any other kind of assembly -- with the idea that majority rule is their only option. That is, only 51% can be happy. The other 49% can't get what they want, and are supposed to lump it. My question is, "Why?" To me, it makes more sense to seek unanimity, then settle for overwhelming agreement after every effort has been made to resolve differences creatively. I would never start out with the goal of achieving a simple majority. The typical arguments against consensus building are (1) the process takes too long, (2) there are two sides to every question and people will always disagree, and (3) consensus building produces lowest common denominator agreements -- meaning bad agreements. As it turns out, all three of these assumptions are wrong. And, I have the evidence to prove it. My objective in this blog is to share that evidence and encourage as many people as possible to discuss their own group decision-making experiences. The key to consensus building, by the way, is that a neutral party -- trusted by everyone involved -- needs to manage each problem-solving conversation. In each post, I'll include one published reference. I'll start with Breaking Robert's Rules: The New Way to run Your Meting, Build Consensus and Get Results published by Oxford University Press in 2006 (by Susskind and Cruikshank). It's now available in Japanese, Chinese, and Portugese and will soon be published in French, Dutch, Russian and Spanish.