You've Got to Go Slow to Go Fast

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

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

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

Doing Things in a New Way Seems Risky

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

People in Power See Mediation As a Threat

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

Consensus building Requires Organizational Not Just

Individual Commitment

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

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

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

What is sustainable city development?

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

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

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

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

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

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

Why don't judges just settle legal disputes?

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

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

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

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

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

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

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

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