Is it Time to Move the Field of Public Dispute Resolution in a New Direction?

PRESENTATION TO THE ASSOCIATION OF CONFLICT RESOLUTION/ENVIRONMENTAL AND PUBLIC POLICY SECTION CONFERENCE: SEEKING SUSTAINABILITY THROUGH COLLABORATIVE GOVERNANCE

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.

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

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.

Environmental Justice

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

(Bi-partisan) Legislative Decision-making

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?

Natural Resource Management

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.