Deliberating vs. Deciding in a Public Disputes Context

There still seems to be a big gap between the “deliberation crowd” and “the public dispute resolution crowd.” The deliberation folks (like the fine group called the National Coalition for Dialogue and Deliberation) is betting that people will learn to be more tolerant of contrary views, and maybe even change their own views on controversial topics, by taking part is well-structured dialogues. The public dispute resolution people (including the public policy section of the Association for Conflict Resolution) are more worried about generating agreements than they are about changing anyone’s mind. While the two groups pursue slightly different objectives, and emphasize different methods, we need for them to combine forces if we are ever going to make progress on the vexing public disputes that have tied us up in knots.

The means and ends of deliberation

Imagine trying to bring together people who are passionately committed, one way or the other, on questions like gun control, abortion or climate change. What’s the best outcome you can imagine? In my view, we’d like them to listen more carefully to the views of their opponents and think hard about ways in which they might find common cause in spite of their disagreements. So, both sides could probably agree that steps should be taken to be reduce the number of children wounded or killed accidentally by gun accidents, or that poor women should have better access to pre-natal care, or that the elderly living in un-air conditioned public housing units might have access to cooling centers when the temperature goes about 95 degrees for days in a row. If groups with opposing views can find ways to work together to achieve an objective they share, the individuals involved tend to stop “demonizing” each other (i.e. thinking the worst about a category of people who they don’t even know). The kinds of dialogues that get people to listen, and maybe empathize even when they disagree, don’t take place at a public hearing or in front of a tv camera. People of good will need time to get to know each other and hear each other out. Facilitators in such situations know how to set and enforce pretty simple ground rules that promise everyone a safe environment. The ultimate goal is to reconcile the parties, not for one side to convert others to their view.

The means and ends of public dispute resolution

When public agencies have to make decisions -- like granting a casino license, allowing an historical building to be cleared away, or deciding whether or not to allow a new power plan to be built in a particular location – people with strongly held views want to participate. They don’t just want to be heard, they want to play a role in the decision. The best way to do this is to invite representatives of key stakeholder groups, chosen by those groups, to see if they can negotiate an agreement. If they can, their recommendations will usually be taken quite seriously by the officials who have to take action. In the public arena, many such problem-solving efforts need to be preceded by extensive joint fact finding (so the parties have a common pool of useful information). Mediators know how to help elected and appointed officials identify and convene all the relevant stakeholders, work with these groups to formulate shared ground rules and gather useful information, generate proposals that offers an outcome better for all sides than no agreement, and assist the parties in producing a signed agreement that officials can implement. The goal is to use informal problem-solving methods to supplement the usual administrative procedures and avoid costly and time-consuming litigation (that sets no useful precedent).

Why the two need to be more intimately connected

Getting concerned citizens together to achieve a better understanding of other peoples’ views is no small task. But, it isn’t enough. Our democratic commitments go beyond giving everyone two minutes at a microphone. The public wants a chance to participate in actual decision-making. How can we accomplish this when outspoken individuals with extreme views tend to dominate? We can supplement the basic mechanisms of representative democracy with informal problem-solving that seeks to generate consensus proposals. These will guarantee officials that if they accept what is recommended, almost everyone in the community will stand up and cheer. And, if you think that there is no way of bridging the gap between the “sides” in serious public controversies, you haven’t been paying attention. This is happening all over the world. The key is to involve the relevant groups, not a hodge-podge of outspoken individuals (or even a statistically valid sub-set of residents, who like a jury, who are supposed to think like their peers). The actual stakeholder groups will be needed to legitimize implementation of whatever agreements are reached; so, it is better to have them select representatives at the outset to sit around the table. The ongoing internal dialogue within each group is likely to generate support for a reasonable package if one is produced. Outspoken individuals with strongly held views are not accountable to anyone. Group representatives need to stay in touch with their stakeholders.

Experts on deliberation knows how to manage micro-conversations -- the give-and-take among the people at the table. Problem-solving is more effective if time is invested in building rapport among the participants. Generating empathy and understanding is a good thing, not a bad thing. However, it usually leads to clarity about why and how disagreements have emerged. Dispute resolvers know how to manage the maco-conversation and generate agreement, and not just clarity about the sources of disagreement. That is, they can make sure that officials with the formal authority to decide, convene the right parties in a way that ensures political legitimacy. They also know how to organize joint fact-finding. Reaching agreements that make people feel good, but don’t reflect the technical or scientific realities is dangerous. We need these two groups to team up.

What you can do to help

When public controversies arise in your community, don’t hesitate to suggest that public officials authorize a combination of dialogue and problem-solving. Remind them that won’t be giving up their final decision-making authority. Not only will they be able to take credit for improving the climate for productive public conversations, but they will be putting themselves in a position to take actions that will be applauded by all of their constituents.

When the question comes up about who should participate, tell them to ask a professional mediator to undertaken a stakeholder assessment that will help them map the conflict and ensure appropriate group representation. Allowing the most outspoken individuals a place at the table is counter-productive – they will just continue to sound off. All the relevant stakeholder groups must choose their own representatives, including proxies for hard to represent interests, and have a hand in devising problem-solving ground rules that everyone signs before the problem-solving discussions begin. For more details, see Susskind and Cruikshank, Breaking Robert’s Rules, Oxford University Press, 2006 including revised versions in Spanish, Portuguese, French, Russian, Italian, Chinese, Dutch and Japanese.

Where is Aristotle When We Need Him?!

Aristotle said that wisdom is knowing the right way to do the right thing in a particular circumstance. Barry Schwartz and Kenneth Sharpe have written a wonderful book called Practical Wisdom (Riverhead/Penguin, 2010) that explains what this means. They explore what happens to doctors, lawyers, and bankers as well as teachers, hospital workers and government employees who depend too heavily on rigid rules and financial incentives rather than good judgment to figure out what the right thing to do is in particular situations. And, they raise a great many reasons why we should be worried about contemporary professional education that plays down the importance of empathy.

Schwartz and Sharpe point out that, "It takes wisdom -- practical wisdom -- to translate the very general aims of a practice into concrete action." So, when professional education emphasizes codified theory and analytical methods at the expense of guided explorations of the everyday dilemmas that practitioners are going to face, we make a big mistake. And, likewise, "the rules and incentives that modern institutions rely on in pursuit of efficiency, accountability, profit and good performance can't substitute for practical wisdom. Nor will they encourage it or nurture it. In fact, they often corrode it."

So, how can we help the next generation of practitioners learn what can't be taught, including the empathy it takes to be wise?" First, we need to stop "telling" our students what (we say) are the right answers to every question. They need to discover for themselves which answers "work" and how they can arrive at them. Second, we have to help newcomers learn to categorize and frame situations in productive ways. We can do this by modeling our approach to these tasks -- highlighting the value of carefully thought-out categories (that allow us to assess each situation on its own merits) and the importance of framing situations in ways that take account of conflicting views of reality. Third, we need to underscore the importance of empathy; ensuring as Schwartz and Sharpe say that, reason and emotion are allies rather than enemies. We want our students to trust their intuition and take heed of their emotions, not suppress them. Next, we want our students, through experimentation and feedback, to learn to trust their ability to see patterns and make moral judgments. They have this skill; we need to embellish it. Finally, we want to encourage them to be "system changers." They can do this if we help them to pursue the right objectives for the right reasons. This means talking a lot about what the right thing to do is, and making clear that professional success (especially happiness about our role in the world) is mostly a function of our ability to do the right thing for others.

Winning at Win-Win Negotiation!

I hear the phrase "win-win" all the time. I'm not sure that very many people who use it know what they are talking about. I have a hunch they mistakenly assume that if everyone would just cooperate, then all parties would get what they want. That, of course, is ridiculous. There are almost no negotiations in which everyone can get everything they want. And cooperation or even compromise isn't the issue.

Thinking Clearly About Win-Win

No one should agree to anything in a negotiation that is worse for them than what they are likely to get if no deal is reached. Roger Fisher and Bill Ury made this point thirty years ago in Getting To Yes. First, figure out what no agreement is most likely going to leave you with, try to generate something (a walk-away) that's better than that, but when you are in an actual negotiation don't reject something that's better than your realistic walk-away, even if it won't get you everything you'd like to have. Fisher and Ury called this point of comparison, your Best Alternative to the Negotiated Agreement (BATNA). A win-win negotiation is something that gets all sides an outcome better than their BATNA. It doesn't necessarily get anyone everything that they might want.

Decision analysts (like Howard Raiffa) talk about the same idea in terms of a negotiator's Reservation Price -- the amount that they've decided ahead of time they won't accept "less than" or "pay more than." Putting aside for a moment that BATNAs and Reservation Prices are sometimes hard to estimate or "know" ahead of time, a win-win negotiation can be thought of as a deal in which all sides "gain" relative to their best estimates of their walk-aways.

Entering the Trading Zone

As many negotiation experts have explained, the beginning of a negotiation is hard because the parties all think they know what they want, all think they know what the other side(s) want and have all worked through with their own constituents what they will and won't accept. If they then spend all their time pushing their own objectives, sometimes even exaggerating "what they have to have," and giving arguments in anticipation of what others will say, they probably won't get a deal. On the other hand, they have no choice but to show their "people" that they are trying hard to be victorious. So, there is a lot of wasted motion, a lot of exaggeration and a lot that's done for show. At some point, though, usually behind-the-scenes, each party has to re-assess. "Am I going to be able to get something equal to or better than my walk-away." "I know I can't get everything I have demanded, but a lot of that was made up anyway." Most people think that in a bargaining situation, you have to ask for more than what you really want so that you can make concessions and still end up with your real goal. Of course, that strategy can backfire. If your constituency hears you make outrageous opening demands and then you don't "bring home the bacon," it may not be possible to back down from those demands without losing face. The fact is, that if everyone were being completely honest about their most important interests (i.e. the things that are important to them in rank order), and they

all felt comfortable talking about these items, the negotiators could then engage in productive joint problem-solving to see what sort of trades might (or might not) permit all parties to meet or exceed their realistic walk-aways.

If the opening of a negotiation doesn't alienate all the parties (because one or more sides has taken an absolutely outrageous stand for tactical reasons and did so in an obnoxious way), they can then enter the "trading zone." This is the negotiation space in which parties try out various new ideas and possible trades. "Now that I've heard what's really important to you, what if I gave you X, would you give me Y?" Those kinds of linked offers are the key to creating value. If I have something you want very much and it's not that important to me, and you have something I covet, and it is not crucial to you, when we trade those two things, that creates value. That's not compromise. We can only do this, however, if we can find our way into the trading zone. Fisher and Ury point out that parties have to be willing to engaging in "inventing without committing" for this to happen. There are other procedures that can also be used to make this work. Once in the trading zone, though, the parties have to do all they can to explore numerous "what-if's?" to see if they can create value. Then, once they have created all the value they possibly can, the parties need to go back and see if they can put together a "package" that ensures everyone something above their BATNA or their Reservation Price. The process gets more complicated when values or rights are involved and not just interests, but the same Mutual Gains Approach (MGA) can be used even in those situations.

What If the Parties Haven't Done Their Homework or Aren't Authorized to Make a "Reasonable" Deal?

The key to win-win negotiation is not compromise, it is getting into the trading zone and creating as much value as possible. If all negotiations involved just two parties and those negotiators didn't have to report to anyone, the process would not be that difficult. But, most of the time, negotiators have someone else (often a diverse and fractious constituency) to whom they must report, and to whom they are accountable. This makes moving into the trading zone more difficult.

Think about negotiators who represent their county in a multinational treaty negotiation. Each negotiator spends months talking with different agencies and political actors inside their country, trying to reach a delicate balance on what to stress and what to sacrifice when formal multi-country negotiations begin. Then, when the negotiators sit across from each other in the big hall, each reads the script that they worked out so carefully back home. It doesn't matter if the formal statements that each negotiator gives appear to ignore what previous speakers in the big hall have said. The fact is, that's exactly what's happening. The negotiator is playing to his or her home crowd. Any deviation from the pre-prepared script would probably be cause to drag the negotiator home and demand their resignation. But, at night, at the bar, when the country negotiators chat informally, new packages emerge, and new trades are explored. As the end of the two week formal negotiation period is about to draw to a close, the chair of the session hands out a revised version of the treaty text. This is quite different from the one that countries spent the previous six months reviewing. That earlier version was what they considered when they helped to write their opening speech for the big hall. Now, however, the negotiator has to call "home." (And, in each country home is represented by a different political figure or set of actors.) They have a choice to make (and almost no time to make it). "Do we support the revised version of the treaty that the chair has sprung on the assembly at the last minute?" Yes, or no? There's no time for further revisions, everyone has return flights scheduled in a few hours. Moreover, in an international treaty negotiation, the chair won't ask the parties to vote. Rather, he or she will ask, "Do I hear consensus? Do you support the revised version of the proposed treaty?" It is entirely up to the chair whether he or she "hears" consensus. At the point, the country negotiators have the option of signing the document on their way out their door. Then, each negotiator has to go back to their home legislature and seek ratification (in America's case by a vote of the United States Senate).

Think of the poor negotiator for a country that didn't do its homework ahead of time, or didn't give it's negotiator any room to maneuver. They can't have much impact on the final outcome because they can't participate in the discussion of informal trades. Ideally, a negotiator needs to know what his or her country's most important interests are (and which of many ways of meeting them will be OK). The negotiator may also have instructions to take a strong opening stand, but at the same time be empowered to use whatever informal channels are open to enter the informal trading zone and see what new options can be created. Until the final moments, the negotiator is just exploring "what-if's." When the chair produces the final draft of the proposed treaty, the negotiator needs to know who they can call to get a yes or a no (although they must be able to report that they have found a way to ensure that their country's most important interests have been met).

How Much Can and Should You Do for the Other Side?

There's nothing more frustrating than trying to negotiate with someone who isn't prepared (i.e. doesn't know what their group's interests really are), isn't authorized to enter into informal discussions about ways of creating value, and isn't empowered to commit to anything other than what their group discussed before the negotiations began. If you are sitting at the table (in the big hall) with negotiators who are in one of these three positions, what can and should you do? First, even though it is awfully late in the game, you might encourage the other negotiator to be in touch with his or her group to clarify what their key interests really are. This should take the form of a BATNA or walk-away analysis. ("What are we going to be left with, realistically, if there is no agreement?" Not, what will we demand?) This will help the negotiator avoid the bad mistake of turning down "pretty good" offers. Second, you can construct several "alternative packages" for the negotiator to bring back (quickly) to his or her group. Each should spell out why and how a package will help the group meets in most important interests, and at what cost and with what risks. Third, you can coach the other negotiator a bit, teasing out for them what they might say to their constituents in response to various criticisms or complaints. Of course, if the negotiation is being managed by a neutral party (a mediator or a facilitator), then any participant can have a private conversation with that individual without having to reveal to any other parties how unprepared they really are (or how mixed up their constituency might be).

So, When Should You Compromise?

No negotiating party should ever accept an agreement that is worse for them than no agreement. But, a group may be very uncertain about how to predict what no agreement really means. ("If we don't reach agreement now, what will happen next and what effects will that have?") So, they might say yes to something that turns out, in retrospect, to be less desirable for them that having said no. But, no negotiator should ever agree to something that knowingly "hurts" their constituency (i.e is worse than what no agreement held in store for them) just to be liked. Good working relationships (and particularly trust) are not achieved by caving in to pressure. Rather, they are a by-product of all sides acting in what Fisher and Ury would call a "principled way." And, I would argue that one principle of negotiation is that no one should ever "give away" their interests in the hope of "buying" a good relationship. All that will do, as Fisher and Ury point out, is teach the other parties that the same behavior be expected in the future.

"Good for You, Great for Me"

So, in actuality, a win-win outcome is one that gets all parties more than what no agreement would have guaranteed them. But, that doesn't mean that all parties "gain the same amount." I might like an agreement because it get's me well above my BATNA. You might grudgingly accept my proposed agreement because it gets you more than what you are likely to get if we reach no agreement at all. Win-win agreements do no promise all sides equal or similar gains. They only promise that all sides -- because they enter into the trading zone, engage in joint problem-solving, and agree to be realistic, even honest, about their highest priority interests -- get an outcome that is better than their most realistic estimate of what they would have ended up with had they walked away with no agreement.

Thus, the way to "win" at "win-win" negotiation is to make sure that you come up with a proposed agreement that is "good" for other side(s) and "great" for you. You can only do this by working hard to uncover and respond to the most important interests of the other parties. Whatever "opening" stand you take (to ensure your "people" that you are fighting hard on their behalf), you have to be able to move from there into the trading zone and function effectively in that "what-iffing" environment. Then, you must have the right mandate from your "side." That is, you need to have worked out ahead of time a clear understanding of your group's priority interests. And, you need to know who you can call for authorization to enter into an anticipated agreement at the last minute as long as the package exceeds your group's realistic estimate of what no agreement means to them.