The California Folks Got it all Wrong

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Water Diplomacy

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

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

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

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

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

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

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

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

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

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

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