Thursday, December 27, 2012

Can Games Really Change the Course of History?

At a recent meeting at Sciences Po in Paris, scholars and practitioners from a number of countries heard about a very elaborate game in which more than 150 students played the parts of climate change negotiators from all over the world.  We watched a video highlighting their intense and emotional interactions on the "last night" before their version of the Copenhagan climate change negotiations came to an end.  Some of the students were present; recounting their frustration at not being able to come up with an agreement that would demonstrate to the real climate change negotiators (one of whom was present) what they could have and should have accomplished.  The person behind this game, Professor Bruno Latour, had convinced the students that their simulated success might influence subsequent rounds of actual climate negotiations.  No wonder they were frustrated.

There are various ways games can be used to inform,  and even alter,  high-stakes policy negotiations. I'm going to describe several of them below,  but this only works when the actual negotiators take part in the game in advance of undertaking their own "real life" interactions.  I'm not convinced that the results of role-play simulations involving students or other stand-ins will mean much to senior government representatives. I say this for three reasons.  First, real life negotiators are under enormous pressure to "stick to the script" worked out in national capitols before they are sent off to an international venue.  Every word in the formal statements they present is carefully measured to satisfy competing constituencies at home.  Negotiators do not have the authority to depart from these scripts.  Students, on the other hand, are under no such pressure.  Even when games provide Confidential Instructions meant to mimic "back-table" demands from various internal constituencies, students don't feel the same pressure that real negotiators feel.  Second, real life negotiators care about their long-term careers. They are less likely to get caught up in the spirt of a last-minute or all-night negotiating session in which students throw out the rule book in an effort to reward everyone's hard work or show (their teachers) they can reach agreement. Experienced negotiators have been down the same road many times.  Larger principles -- like national sovereignty and the obligations of the North to assist the nations of the South before asking the developing world to take on more responsibilities -- outweigh any short-term considerations or the pressures of the moment.  Finally, particularly articulate and persuasive students can win over a crowd, regardless of the (relatively less politically powerful) role they have been assigned.  In real-life negotiations, this is much less likely to happen.  However creative the agreement might be that students are able to reach at the end of a role-play, it is not likely to be taken seriously by the real-life negotiators in such situations.

Role-play simulations can be used in three ways.  First, they can be used to give students a chance to experience situations in which they might someday find themselves, offering a quasi-realistic chance to apply what they have learned in class.  When used properly, with the help of skilled instructors, role-play simulations can be very effective educational tools.  Role-play simulations can also be used as part of a research agenda (especially in the negotiation field).   In the same way carefully structured laboratory experiments (involving students) are often used to test psychological hypotheses, role-play simulations, run repeatedly with similar sets of players -- some of whom are instructed behind-the-scenes to try different negotiating techniques -- are being used to determine the efficacy of various negotiating strategies. In my own work, we are using role -play simulations in coastal communities to see whether a particular approach to adaptation planning is likely to change public perceptions about the best ways of responding to climate change risks. (Susskind and Paul, "Winning Public Support for Addressing Climate Change, Solutions Magazine, 2010, pp. 44-48).  Role-play simulations work as a research tool when a game creates a context that can be held constant, while carefully instructed (and matched) participants try different negotiation strategies.  The third use of role-play simulations, that I want to focus on in the rest of this piece, is as an intervention tool in real-life negotiations.  While there may be some overlap with the first two uses, interventions of the sort I am about to describe take an enormous amount of work to arrange and are almost always "one-off."

The United States Environmental Protection Agency decided to experiment with a new way of involving stakeholders in the process of drafting regulations.  They called this Negotiated Rule-making or "Reg-Neg." (Phillip Harter, "Negotiating Regulation:A Cure for the Malaise," 71 Georgetown Law Journal,l:  1982) Without going into too much detail, their basic idea was to recruit a cross-section of relevant stakeholders, with the help of a professional mediator, and see if all the parties likely to complain about any new environmental regulation the Agency issued, could reach agreement on what they thought the new regulations should require. After a quite a few successful experiments (Jody Freeman and Laura Langbein, "Regulatory Negotiation and the Legitimacy Benefit," New York University Environmental Law Journal, 9 (2000) pp. 60 - 151) , the U. S. Congress decided to change America's Administrative Procedure Act so that negotiated rule making is now a normal option. Along the way, several of us made a game called Dirty Stuff (downloadable from for the participants in each new negotiated rule-making to play the night before their first formal negotiating session. The game takes several hours to play. Participants are asked to begin by reading both General Instructions (that set the stage) and Confidential Instructions (to ensure that they play their assigned role in the same way that "real" participants in that role would proceed). Typically, they are asked to play a role quite different from their real-life role (so no one has to worry that they will inadvertently reveal what they intend to do when the formal negotiations begin the next day).   The results are profound.  During the debriefings of the Dirty Stuff game,  participants almost always note the opportunities for cooperation (and not just competition) they now see on the horizon.  During the actual negotiations, I have often heard participants refer to what happened in the game. They do this when they want to gently chide their real-life negotiating partners to work harder to reach a mutually advantageous agreement.  The game provides a common language.  It allows newcomers to get a sense of what lies ahead, thereby increasing their comfort level. It hints at a range of possible options that the parties might never discover under normal circumstances,  in much the way that Bruno Latour was hoping the Climate Change game would.  The key, though, is that the actual negotiators must play the game together and talk together about the results with the help of a trained facilitator.

Here's a second example. The participants in a global treaty negotiation concerning Persistent Organic Pollutants (POPs) were convinced by one of their members to meet before the official opening of their formal talks,  to play a game.  We had designed a game, called the Global Management of Organochlorines, otherwise known as the Chlorine Game (which can be downloaded from with the relevant teaching notes) simulating a treaty-making effort a lot like the POPs negotiation.  While I was not present at that event, it is my understanding, from talking to several of the participants, that the game helped those unfamiliar with the dynamics of global treaty-negotaition to get their footing.  It also made clear that the negotiators, even thought they were under strict orders from their home countries, could find room to maneuver if they shifted into an informal problem-solving mode prior to making formal demands or commitments. (For more on global environmental treaty-making see Lawrence Susskind, Environmental Diplomacy, Oxford University Press, 1995.)

The Consensus Building Institute, the not-for-profit mediating organization in Cambridge, Massachusetts that I founded twenty years ago, has run role-play simulations for a variety of national and international agencies and organizations preparing to engage in national and global treaty negotiations. (David Plumb, Elizabeth Fierman, and Todd Schenk, "Role Play Simulations and Managing Climate Change Risks," Cambridge, MA, Consensus Building Institute, In my new book with Shafiqul Islam, entitled, Water Diplomacy, Resources for the Future, 2012) we include four linked games we use each year at the Water Diplomacy Workshop ( to train senior water professionals so that they can use these games in their countries to help those involved in upcoming transboundary water negotiations approach them in a more collaborative way.

Role-play simulations can be used as a means of intervening in real-life negotiations, but only if they are (1) crafted in a very realistic way; (2) presented by a skilled instructor who can help the participants reflect on their results together; (3) include both General and Confidential Instructions so that participants feel the strong pressure to stick with the script that they will feel in real life; and (4) invited by the participants in real-life negotiations because those individuals want an opportunity to explore options that might otherwise never get considered. 

Tuesday, December 25, 2012

Learning from Games: The Debate over Role-Play Simulations

Many of us teach negotiation skills and strategy using role-play simulations (RPSs).  These are "paper" games (not computer games) that put participants in assigned roles and ask them to negotiate with one or more counterparts. Unlike the case teaching method pioneered at Harvard Business School (HBS), RPSs not only describe a situation in some detail (General Instructions), but also provide Confidential Instructions for each player.  HBS cases don't come with confidential instructions. We want to ensure that certain negotiation puzzles or challenges will emerge (as each player seeks to achieve the interests spell out in their Confidential Instructions, using the information provided to them). While business school instructors ask students "to imagine" they are the various characters in a real case, RPSs constrain much more tightly what a role player can advocate or accept in a hypothetical situation.  By carefully sequencing RPSs over several days or weeks, an instructor can provide numerous opportunities for students to "try out" a variety of negotiating techniques and build their negotiating prowess. Even though games of this sort have been used for quite some time in numerous settings, including K-12 education, professional degree programs, and military training -- with documented results -- there is a recent backlash of sorts.  I want to summarize the arguments for and against using RPSs to teach negotiation (and other complex skills), and suggest that recent doubts about their effectiveness are misplaced.

The RPSs I'm talking about are based on real cases. (You can download inspection copies for free of more than 100 RPSs from the Clearinghouse of the Program on Negotiation at Harvard Law School along with teaching notes at  The Background and Confidential Instructions portray the attitudes expressed by actual negotiators involved in similar situations.  This distinguishes RPSs from other kinds of negotiation exercises that are highly simplified and entirely fictional, like "Win As Much As You Can" or "Oil Pricing." Also, the RPSs I use to teach environmental dispute resolution techniques include scientific information that has been carefully vetted by experts. While we are eager to teach conflict resolution skills, we also want to convey technically correct information about the "systems" or situations involved.  Many RPSs are designed to "fit" a typical 90 minute or two hour instructional window. Others are intended to be played over several days or in segments over several weeks.  Usually, students receive General and Confidential Instructions ahead of time, negotiate during class time, discuss the results (often comparing outcomes among different pairs or groups) in instructor-led Debriefing Sessions, and prepare Reflective Memos analyzing what worked, what didn't work and what they might try next time. Recently, some of us have added video highlights to our Debriefings.  (My colleague, Michael Moffitt, Dean of the Law School at the University of Oregon, has developed very effective software for students to use in capturing and annotating elements of video-recordings of their negotiations.)

The pedagogical assumptions behind using RPSs are spelled out in a range of publications.  Instead of just listening to lectures, students get to try their hand at negotiating in situations like those they will face at some point in the future. In the protected setting of the classroom (or a professional training workshop), students can experiment with unfamiliar negotiating tactics and strategies with little or no risk to their reputations or financial well-being. By having multiple pairs or groups run the same RPS simultaneously, results can be compared during a Debriefing Session. When video of each negotiation is available, students can clearly see how someone else played the same role with the same Confidential Instructions, but achieved a different result. Assigned Reflective Memos are sometimes used to ask students to consider the cumulative results they have achieved over a sequence of negotiation assignments. Sometimes it takes more than one effort to master a strategic behavior. It is important the students get both personal and group feedback from qualified instructors along the way; the experience of an RPS is only relevant if it is combined with experienced coaching.

As compared to lectures, RPSs offer exciting learning opportunities.  Well-designed and sequenced RPSs, combined with feedback from an experienced instructor, can help students master complex skills. The face-to-face nature of RPSs (as compared to on-line self-instruction) emphasizes that all negotiations involve dyadic interaction.  Feedback from someone with whom you just negotiated is invaluable.  Group comparisons during Debriefing Sessions are often where learning solidifies. Students and instructors who have used RPSs for some time, can see clearly that they help students develop confidence and competence in ways that other teaching strategies don't.

The criticisms of RPSs are mostly theoretical. That is, there have been few, if any, controlled experiments comparing the efficacy of RPSs to other pedagogical options for teaching negotiation.  Indeed, it is hard to imagine which student attributes and contextual variables would need to be held constant, and which measures of performance can be used,  to gauge results.  Nevertheless, there are three conceptual criticisms raised in recent publications.  First, games are unrealistic.  Students are under no pressure to behave or perform in a game as they would in "real life."  Second, only if a student repeats the same game many times will he or she be able to master specific skills.  And, by definition, once the results of a game have been debriefed, there is no way to run it a second time.  Third, students learn in different ways, and some might be better off observing real negotiations than playing games.

Some of the people who say that games are unrealistic don't realize how much work goes into developing serious RPSs.  Those of who design RPSs often base them on our involvement in actual negotiating situations, and build on authentic fact patterns and interviews with real-life role players. While it is true that 90 minutes may pose an unrealistic time constraint, we usually zoom in on just one aspect of a negotiation or a conflict situation so that the "work" required in a game can fit the time available.  We do a lot of pre-testing of RPSs to be sure that the average student will be able to handle the assigned tasks.

The question of whether or not student behavior in an RPS mimics real-life negotiating behavior is more interesting.  Most instructors will not base a student's grade on the outcome they achieve in a game.  We want them to take risks and be prepared to fail.  Does this mean that students don't take their roles seriously, or are they inclined to search for easy compromises when there are no real-life stakes o the line?  It may be true in some instances. On the other hand, I have tried offering financial incentives to students assigned spoiler roles in certain games.  I don't see much effect.  In general, as long as everyone can "blame" their Confidential Instructions or the instructor's mandate to do the best for himself in the game that he can, most students seem willing to negotiate aggressively.  By the way, grades are based on the progress we can track in the Reflective Memos along with a more traditional exam aimed at (1) gauging a student's ability to formulate a negotiation strategy given the facts of a situation; or (2) assessing another negotiator's tactics and strategies.

Do students need to play the same game many times before they can master a particular negotiation lesson?  I doubt it. While it would be possible to keep a "fact pattern"constant and hand out slightly different Confidential Instructions for successive plays of the same game, I don't think it is necessary. Debriefings, Reflective Memos and repetition of earlier lessons in a sequence of games appear to me to be sufficient to "lock in" the lessons we are trying to teach. When I encounter students months or years after they have taken a negotiation course, many are quick to recount the overwhelming significance of a particular game that taught them a life-long lesson.

I don't doubt that students learn in different ways. RPSs need to be packaged with assigned readings, introductory lectures, carefully selected case studies, well organized feedback and analysis of scripted start-stop video involving professionally-actors.  But, RPSs -- when presented properly -- add something to a class that no other teaching tool can match. Learning complex skills requires trial-and-error, reflection, adjustment and more trial-and-error. We could send students out each week to undertake negotiations with their roommates, various commercial vendors, or their parents. Unfortunately, this probably wouldn't get past the Institutional Review Board in my university. Moreover, RPSs allow me to guarantee that specific negotiation challenges will arise from week to week.  I'd rather students faced a range of carefully controlled negotiating situations that we can reflect on together. This should not be to the exclusion, though, of other teaching tools.

Finally, Professor Dan Druckman and his colleagues argue that students probably get more out of designing games than playing them.  There may be something to that.  But, you have to master a great deal of negotiation theory to be able to design an effective RPS.  And, then, you've just learned one key lesson.  On the other hand, I don't think designing a single game is a substitute for first-hand participation in the multiple interactions required by a sequence of well-tested games taught by a qualified instructor.

In a subsequent blog entry, I will review the other uses of RPSs, including helping the participants in high-level negotiations prepare for their upcoming interactions


Thursday, December 6, 2012

How to Give Negotiation Advice

I was asked to comment on a series of presentations being made by students in a class at Harvard Law School.  Their assignment was to generate advice to the head of one of the major sports leagues in America facing a tricky international problem. The student team with the best presentation was going to have a chance to offer their ideas to the Commissioner. I watched as the student teams talked through elaborate power point presentations loaded with detail and elegant visual gimmicks. That's when it struck me that we are not developing or sharing with our students a very clear idea about how to give negotiation advice.

Having been in the same situation (of giving negotiation advice) many times, I tried to step back and summarize what I think I know, especially in light of how my advice has been received and when, in retrospect, it has proven useful. First, negotiation advice needs to be short and sweet.  (Maybe ghe same thing is true with regard to advice on any subject.) When the presentation gets too complicated, the whole message just washes over the recipient. Anything more than a handful of power point slides (if you use them at all!), is too many.  I would suggest starting with a very short statement of the negotiator's problem as you understand it and the gist of your advice in just a few sentences. I would look right in the recipients eye so they are convinced that (1) you understand the problem and the pressures they are facing; (2) you empathize, and you've thought long and hard about what you are going to say; and (3) you have confidence in what you are suggesting.  The student teams I watched, divided up their presentations so that each member of the team had some air time.  Don't do that. It is hard enough establishing personal contact with the person you are advising.

Second, don't try to explain the theory behind your prescriptive advice. Again, this is probably true of any kind of advice, not just negotiation advice. How I reached my conclusions is my business.  If they are asking me for my advice, they don't need to hear everything I've thought about and everything I know, just my conclusions.  Negotiation advisors who are not confident about the advice they are giving are likely to share everything they know with the people they are advising.  In my experience, that just makes recipients uneasy.

Third, stop along the way and make sure that the person you are advising understands each of your key points. When a recipient get's stuck on something I've said -- if they don't understand it, or it doesn't sound right to them -- they stop listening.  So, it's better if I break what I'm going to say into a few short pieces, and then check to be certain they've understood each point before I go on.

Fourth, emphasize the possibility that additional value can almost always be created, and suggest ways of reframing a negotiation in terms of all-gain solution.  Most people entering a negotiation are likely to be thinking in zero-sum terms (i.e. whatever my negotiation counterpart gets, I lose; and, vice versa).  A skilled negotiation advisor, however,  is ready to point out ways that more value can be created.  This can take a lot of pointed questions and several rehearsals.  Nervous negotiators are often unable to hear the kinds of questions that lead to "all gain" solutions.  For example, I often press people seeking negotiation advice to put themselves in the shoes of the person with whom they are about to negotiate:  "What do you think the key interests are on the other side?  What's most important to them? What can you offer them (at low cost to you), in exchange for things you want from them?"  In other words, I try to frame my advice in terms of possible trades or packages that will be mutually advantageous.  And, I ask the person I'm advising to play the role of their negotiation counterpart as we search for value creating possibilities.

Fifth, it's OK to offer contingent advice if there are major uncertainties or assumptions which, if handled differently, would lead to different suggestions.  I think this is especially relevant to negotiation advice. While I'm trying to keep my suggestions as compact and simple as possible, it is, in my experience, appropriate to say: "If X turns out to be true, as I think it will, then my advice to you is this.  However, if Y happens instead, then my advice would change in the following way."  I wouldn't do too much of this, but one or two contingencies will add to, rather than subtract from, your credibility as a negotiation advisor.

Next,  a diagram can be useful. But elaborate power point presentations or complex conceptual schemas are a distraction.  Diagrams summarizing prescriptive advice need to be anchored to real events, dates or steps that make it clear the order in which things need to be done.  Elaborate conceptual diagrams, spelling out theoretical ideas or summarizing various schools of thought, should be avoided.  Someone seeking negotiation advice wants to know the most important things they need to do. That's it.  Negotiation advisor need to be ready with short explanations of "why" if they are asked to justify a particular move; but, these should be held in reserve, and offered only when requested. And, "why" answers should always explain the dynamics involved, not the inspiration for what the advisor is suggesting. Why answers are not like footnotes!  They should expose an additional layer of understanding, not cite a source.  So, for example, a suggestion like, "Don't share all the information you have on that subject until you know whether you can trust the other side," should be followed with, if asked why,  "Because they could use that information to "anchor" in the Zone of Possible Agreement at a point that is best for them and worst for you."

I worry about the increasing use of power point presentations in advice-giving situations.  I think it is a mistake.  It puts a barrier between the advice-giver and the recipient.  Rapport is everything, and power point presentations, especially those with glitzy special effects, get in the way of personal connections.  I don't mind a one page handout (that the recipient can annotate as they listen), but it should not be filled with dense text. Just a few bullet points will do.

Let's turn the tables for a minute.  If you are the one seeking negotiation advice, how ought you to frame your request for assistance?  I might ask:  "I'm heading into a salary negotiation with a prospective employer, and its making me nervous. I don't want to lose the job, but I also want get a fair salary. What's your advice?"  In this situation, I don't want general negotiation advice. I want specific suggestions tailored to my salary negotiation. I want my negotiation advisor to acknowledge my priorities and my state of mind:  I don't want a prospective employer to give someone else the job. But, I also don't want to settle for less money than I deserve. A skilled negotiation advisor knows how to ask for advice, not just give it.

The things unique to giving or getting negotiation advice (as opposed to any other kind of advice) are: (1) general rules, and the theory behind them, are a lot less helpful than suggestions tailored to the specifics of the situation; (2) sensitivity to the way an advice recipient is feeling may be as important as any substantive insight an advisor can offer; and (3) it is important to emphasize the possibility that additional value can be created and almost every negotiation can be reframed in non-zero sum terms.

How negotiation advice is offered is as important as the substance of the advice.  If negotiation advice is offered in the wrong way, it is not going to be very valuable.

Saturday, October 13, 2012

Informal Problem-solving: Get Help!

Public officials and corporate leaders have to deal with all kinds of conflict (both internal and external). Because they see themselves as leaders, though, they don't want to admit they might need help handling  these situations. For some reason, its OK to hire a lawyer if you are facing a lawsuit, but it's not OK to ask for informal problem-solving help before things go from bad to worse.  Why is that?

Consider the following examples.  Mr. Bigshot is the CEO of a large company.  He is under substantial pressure from his Board of Directors to increase profitability in the near term and increase market share in the long term.  He faces opposition at every turn. Most of his efforts to reform long-standing operating procedures are being opposed by department and division heads.  He wants to look tough to impress his Board, but the only way he can come up with to push his agenda is to replace people who don't do what he wants.  Now he faces a backlash. Efforts to force long-time partners in the company's "supply chain" to accept new ground rules, have also backfired.  If the problems he faces were framed purely in organizational development terms, he might think about hiring a management consultant, but the notion that he might need to improve his (and his organization's) informal problem-solving capabilities is the farthest thing from his mind.

Here's a second example. The head of a well-know multinational agency has been trying for several years to get her organization to embrace sustainable development as part of their mission. At one level, everyone agrees.  But, whenever she suggests that this means altering the agency's priorities, shifting the allocation of financial resources and involving long-time critics in redefining the agency's mission, a torrent of tacit and explicit opposition emerges. Endless rounds of one-on-one and group conversation have had no effect.  Ms. Agency Leader might go along with hiring a strategic planning consultant, but she is blissfully unaware that both she and her organization probably need help developing their informal problem-solving capabilities.

One explanation for why these two "leaders" are unlikely to take advantage of professional mediation, facilitation or other informal problem-solving assistance is that they don't want to appear weak (to the people to whom they are accountable). They feel obliged to demonstrate that they can handle whatever adversity comes their way.  But, that can't be right.  Public and private sector leaders are often in a big hurry to hire consultants and expert advisors.  Admitting that they don't know what they need to know, can make a leader look smart; so, why the resistance to hiring informal problem-solving help?

A second explanation is that they aren't aware that such expertise is available.  It may be that they don't realize that informal problem-solving opportunities are embedded in every conflict situations. They may  be unaware there are readily available advisors and intermediaries who can help them avoid unnecessary conflict, engage in collaborative problem-solving and build consensus.

A third explanation is that the providers of informal problem-solving assistance may not be good at
marketing their services.  Indeed, this is probably true. A great many skilled mediators don't know how to describe what they do in ways that connect with what leaders of the sort mentioned above think they need.  Too many dispute resolution professionals don't work on building long-term relationships with potential clients. They can't expect someone to find them in a moment of crisis. They don't invest enough time putting contracts in place so that they can get to work immediately when informal problem-solving help would be useful.

Finally, informal problem-solving experts may not be pricing their services correctly.  Some are charging too little, I think,  and some are charging too much. Leaders in both the public and private sector attach importance to professional services for which they pay enough to notice. On the other hand, exorbitant prices mean that informal problem-solving services will be used far too infrequently. Also, performance-based methods of payments ought to be possible (which is something that most mediators have resisted for fear that an a priori commitment to getting agreement is in appropriate in situations where no agreement might be an appropriate outcome).  And, service bundles also ought to be up for discussion.  For example, training and organizational capacity-building should be part of annual retainers that include a certain number of hours of  consulting services in moments of need.

Informal problem-solving is a potential growth industry. However, there are three important considerations that providers of these services ought to keep in mind.  First, trust is absolutely crucial. If potential clients are worried that informal problem-solving advisors don't appreciate the pressures they are under, can't guarantee confidentiality or have possible conflicts of interest, they won't seek their help. Second, specialized knowledge is crucial. Clients need to be convinced the informal problem-solving advisors are entirely familiar with what's going on in their"sector." They are not interested in general "process" advice, they want help generating workable solutions.  While service providers should not advocate a specific solution in each situation, they should be able to generate an inventory of numerous ideas that have worked in similar situations. Also, leaders are looking for advisors who have the ability to improvise. They don't want informal problem-solvising assistance from advisors who are "selling" an inflexible method. They need help from advisors who can adapt.

Informal problem-solving can add value in almost any situation. We need to make it easy for leaders in both public and private organizations to seek informal problem-solving assistance on a regular basis.

Thursday, May 3, 2012

Fifteen Things We Know about Environmental Dispute Resolution

I was recently asked by my Harvard Law School class to summarize what we know (from actual experience) about environmental dispute resolution.  I offered the following list.  I'm eager to hear reactions from other scholars and practitioners.  What have I left out?  What have I mis-stated?

1    Environmental dispute resolution (EDR) can be used “upstream” during policy-making and planning as well as “downstream,” once disputes have crystallized over administrative decisions (e.g. permitting, licensing, funding, etc.), or even after disputes have entered adjudication.

2.     EDR only works if the parties are motivated to come to the negotiating table.  It is fine if they have very different motivations (e.g. no good BATNA, an opportunity to create value, a desire to improve or repair relationships, pressure from coalition partners, etc.).

3.     EDR needs a process manager; ideally, a professional mediator or facilitator (but not always).  This person must be acceptable to all the parties being invited to come to the table.

4.     The parties in EDR must have a chance to participate in or at least approve the agenda, ground rules, selection of parties, timetable and other elements of process design before EDR begins.

5.     It is perfectly reasonable, even necessary, for a facilitator or mediator to get involved in a variety of away-from-the-table activities on behalf of the group.  These can include making sure that all parties are prepared properly. The mediator might also work with the parties to help them remain in touch with their actual or putative constituents throughout the EDR process.

6.     EDR works best when there are opportunities for Joint Fact Finding and they are managed by a facilitator or mediator.

     JFF should be highly interactive, involving all the stakeholder representatives in specifying the questions that need to be answered, selecting the experts of various kinds who will be called on to help, and making decisions about which analytical methods should be used.

7.     EDR should always emphasize value-creating opportunities (and not just zero-sum choices).

8.     EDR can never substitute for statutorily-mandated decision-making by public officials or agency staff. It can, however, supplement whatever formal decision-making is required by law.

9.     EDR will, of necessity,  take different forms in different constitutional contexts around the world.

10  EDR can rarely, if ever be precedent setting.  It needs to be fitted to the unique contextual details of each dispute/conflict/decision-making process. The outcomes of EDR efforts are rarely recorded in the way court decisions are.  They are not likely, therefore, to be accompanied by a legal rationale that justifies whatever agreement is reached.

11  EDR can include opportunities for confidential give-and-take among the participants even though open meeting laws, sunshine laws and other transparency requirements must be met. Transparency is the mediator’s responsibility along with an obligation to maintain promises of confidentiality.  These can be balanced by allowing the mediator to carry messages between the parties and through work that is done in caucuses.

12 There are substantial advantages to creating EDR “systems” rather than treating each EDR opportunity anew.  This often requires that dispute handling systems be enabled by statute or regulation.

13 The costs of EDR need not be shared equally by the parties.  Each party can contribute what it can without compromising the non-partisan or neutral stand of the mediator.  Funds to support an EDR effort (regardless of who provides them) should only be allocated with the support of all the participants (perhaps through the involvement of an elected executive committee of stakeholders).

14  It is possible to evaluate and improve EDR efforts. It is unlikely, however, that consistent quantitative measures of benefits and costs will be central to such assessments.  Rather, in-depth case-by-case analyses – before, during and after each effort – undertaken by independent evaluators are required.  These tend to focus on the satisfaction of the parties relative to their pre-defined BATNAs along with their sense of how the process "worked" given the alternative ways of handling the situation that were available. 

15 Parties involved in EDR should be consult legal counsel. Court-connected EDR will undoubtedly involve parties and their lawyers throughout.   The presence of lawyers in EDR, however, should not be allowed to create barriers to informal (problem-solving) dialogue among the parties themselves.  Professional neutrals need not be attorneys. 

Thursday, April 26, 2012

Corporate Social Engagement and Mineral Extraction in Colombia

I want to make four simple points regarding corporate stakeholder engagement and mineral extraction in Colombia. I presented these ideas several weeks ago at a Harvard Law School seminar sponsored by the Colombian government. We had senior officials present along with a great many Colombian graduate students studying at Boston-area schools. I think these prescriptions apply globally, but they are especially relevant in Latin America.

Corporate Stakeholder Engagement (CSE) provides a new point of entry for those concerned about the social and environmental impacts of mineral extraction.

Corporations around the world are being pressed by their shareholders to do a better job of taking local concerns into account when they initiate mineral extraction projects. Indeed, both stakeholders and risk managers are demanding this. Many companies are now systematically assessing the concerns of a wide range of stakeholders and seeking to demonstrate (in annual reports to their shareholders) that they are taking their responsibilities seriously.  A great many mineral extraction disputes occur because multinational and national companies purchase concessions or apply for mining permits, but make little or no contact with relevant local governments, civil society or community groups before they begin work.  Development impacts surprise and upset local interests. More up-front interaction with these groups -- and a genuine effort to understand and respond to their concerns -- could minimize much of the damage that triggers demonstrations and concerted campaigns against mineral extraction projects in Latin America.  

Many countries (and international law) now require “Free, Prior Informed Consent (FPIC) by indigenous communities likely to be affected by proposed activities on their lands. Leading mining, oil and gas companies (and their investors) now recognize that their  responsibilities for community engagement – including FPIC -- must be taken seriously. That recognition now provides greater traction for local groups who are usually put in a position of having to oppose whatever is happening (without their consent) because they are were not given a chance to make constructive suggestions or stipulate their concerns beforehand.

Global (and stockholder) pressure on major companies to take their responsibilities for stakeholder engagement seriously can provide a new source of leverage for governments and communities. Both should be able to engage mining project developers and investors in a dialogue before concessions are granted and infrastructure investment decisions are made.  Governments can insist on seeing evidence of genuine offers to collaborate with local interests before allowing concessions or licenses to be activated. Certainly, multilateral lending institutions ought to demand evidence of such efforts before funding mineral extraction projects. National governments should support the involvement of professional mediators to help facilitate such local conversations in an even-handed way.  They can cover the cost out of the substantial royalties that mining companies are required to pay for permission to mine or drill. 

All sides benefit when joint fact-finding and Community Benefit Agreements are put in place.

There is great value to both companies and communities from conducting joint fact-finding on social and environmental impacts, both before projects have begun and after they are underway. Such joint assessments should be seen as  value-creating moves. That is, they should be used to define in measurable ways what the impacts of development are likely to be, to decide how adverse effects will be minimized and mitigated, and to establish benchmarks that both the company and local stakeholders can use to gauge the performance of the mining companies involved.  

Being explicit in this way will help companies clarify the baseline against which their operations should be assessed, and reduce the risk that local stakeholders will see mining operations as the source of all the problems in the region.  Joint fact-finding can also provide a basis for national and regional governments to insist that companies take appropriate action to hold the impacts of their mining operations to an absolute minimum. Regardless of how many jobs are created or how much tax revenue is generated, there should be a “cap” on the social and environmental impacts that mining or mineral extraction projects are allowed to have.  Contingent obligations to mitigate and compensate,  if caps are exceeded, should be spelled out before hand.

Social and Environmental Impact Assessments (SEIAs) are required in most countries in Latin America. The preparation of SEIAs can provide a context for the kind of joint fact finding I am talking about. 

Beyond joint fact finding, mining companies can and should offer to work with representative local, regional and national stakeholder groups, with the assistance of a neutral mediator, to negotiate what might be called “Community Benefit Agreements."  These should take the form of contracts that commit the company to meet pre-specified impact mitigation and compensation requirements (based on agreed upon data and forecasts generated jointly with federal, regional and local officials and the heads of civil society groups). They should also protect the reputations and limit the liabilities of companies that meet regulatory standards and live up to their commitments to the community.

Right now, most company-community consultation processes produce nothing more than justifications for what industry already has in mind.  There are ways, though,  in which both government permitting processes and community stakeholder engagement can be used to inform site-specific community benefit agreements that governments could then enforce.

The missing ingredient in too many mining disputes is trust.

It is important for mining companies to build trust with local governments and communities before they begin work.  If  good working relationships are developed and maintained, whatever problems emerge can be handled expeditiously. In the absence of trust, however, it is quite common for all sides to assume the worst about everyone.  This causes conflict to escalate.  When there is no trust, even reasonable offers to make amends or put things right are likely to be rejected.

There are two keys to building trust.  The first is to "say what you mean.” If you have bad news to deliver, don't try to sugar-coat it. If there are organizational, legal, financial or other limits on what a company can offer, it should make those clear. The company’s representatives must begin this practice from the first day they come into contact with community stakeholders, and must maintain consistency throughout the process of exploration, development and operations. Each and every miscommunication will cost the company dearly in lost trust and damaged relationships. The second key is to “mean what you say.” Whenever anyone, whether motivated by a desire to "help" or not, makes promises they can't keep, that undermines trust.  Once it becomes clear the a promise was not genuine, trust is lost. It is extremely difficult to reestablish trust once it has been lost. 

Companies make things worse when they do not ensure alignment between what their community engagement team in the field is saying and what corporate headquarters is ultimately willing to do. Often, companies will hire locals to represent them. These new staff members are likely to be sympathetic to the neighbors with whom they now have to deal in a new role.  When they promise to make best effort to get headquarters to be responsive, however, and then fail, local attitudes toward both the community engagement team and the parent company are likely to sour immediately. Companies must make sure that all staff representing them in the field understand exactly what they can and can't commit.

Grievance-handling mechanisms, while important inside most major companies, are often poorly linked to the company’s broader strategy and practice of stakeholder engagement. Before any and all mineral extraction projects begin, local grievance-handling mechanisms should be in place.  Ideally, these should be part of an overall community engagement plan, spelling out who the point of contact is, what the company's promises are with regard to minimizing social and environmental impacts and maximizing benefits, and what penalties they are prepared to have enforced if they violate the terms of their agreements.  These should be signed off on by government officials who are empowered to make sure they are enforced.

Collaborative adaptive management is now Best Practice.

Wherever possible, joint implementation of mineral extraction projects (however large or small) should be the goal. All mining operations are likely to have unintended effects.  Close monitoring of social and environmental impacts, by joint teams of company staff, public officials and non-governmental representatives should be par for the course. This will allow adjustments in scheduling, operations and mitigation in response to timely and trusted information.  Small scale experiments are also desirable. When stakeholders are not really sure what the full effects of a certain mining procedure will be, a small scale (controlled) experiment, monitored jointly, can be extremely valuable. 

Collaborative adaptive management requires neutral assistance.  That is, all the relevant parties should help to choose someone to facilitate the kinds of joint monitoring and adjustment efforts I have described.  Management by non-partisan professionals makes it easier to build and maintain trust. 

Conflicts surrounding mineral extraction in Colombia are substantial and growing, especially as project scale increases.  For the foreseeable future, oil, gas, coal and other mining activities will constitute a substantial portion of the national economy.  That does not mean, though, that better ways cannot be found of making site specific decisions about particular mining operations.  New international norms for corporate stakeholder engagement provide a foothold for the national government, indigenous communities and environmental advocates to hold extraction companies accountable.  

Joint fact finding requirements, overlaid on top of existing laws regarding the allocation of mining rights and responsibilities could help to build trust and engage local governments and other affected communities in conversations before mining operations begin.  These could lead to the negotiation of formal Community Benefit Agreements with clear caps on allowable levels of impact along with contingent mitigation and compensation requirements if negotiated caps are violated. Trust building will be enhanced if companies commit to collaborative adaptive management, or CAM. CAM assumes that project impacts will change over time in unexpected ways. And, unexpected interactions with other land management, economic development and conservation efforts will need to be addressed.  Putting monitoring and dispute handling arrangements in place beforehand is the best way to proceed.  

Nothing that I have suggested requires laws to be changed or new laws to be enacted.  Companies and communities can proceed in the ways I have described on a voluntary basis, with explicit links between their agreements and governmental permitting and regulatory requirements. Even in cases where governments are not willing or capable to enforce company-community agreements, the company’s recognition that its social license to operate depends on effective stakeholder engagement, and the community’ recognition that there is potential for mutual gains through good faith negotiation and partnership, can generate strong commitments to follow through on both sides.  

In short, in Colombia and around the world, taking a mutual gains approach to stakeholder engagement can help both companies and communities minimize impacts and maximize benefits from mining operations.