Transcript Using Mediation to Resolve Environmental Issues

Collaborative Principles to
Resolve Policy Issues
Key Ingredients and Considerations
Jonathan Brock
William D. Ruckelshaus Center
Daniel J. Evans School of Public Affairs
University of Washington
Why Collaborative Principles?
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Allows influence on a situation you can’t control
Formal route won’t achieve exploration, resolution
Combination of perspectives can generate
solutions that you wouldn’t think of on your own
Parties take greater responsibility for the outcome
More likely to obtain a sustainable outcome
Develops relationships helpful in implementation
and for future conflicts
ADR process can be shaped to fit the specific
issues, parties and context
When to Mediate or Negotiate
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When issue is too important to stand consequences
of decision you actually have the power to make!
When a decision or position could put the situation
out of your constructive influence
When you don’t have power to impose a solution
When you have power, but consequence too risky
When one or more key parties seem entrenched
When your alternatives are worse than negotiation
*Lessons of Key NW Conflicts
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Beginning/structuring
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Importance of initial sponsorship, gov’t connection
Trust in process, conveners
Careful front-end and ongoing effective staff work
Presence of principals for decision; engagement of staff
Important features
– Agreed upon use of data for decisions, later actions
– Open to local knowledge; flexible for special conditions
– Lesser financed groups can participate
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Provisions for implementation
– Continuity from negotiation to implementation
– Accepted channels for implementation; new structures
for priority setting, coordination, focus, sponsorship
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Key success, progress often follows major tension
*Locally Based Decision Forums
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Place-based groups with representation
appropriate to resolving likely issues
– NW Straits
– Nisqually River Council
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Issues & solutions from local joint committee
 Connected to local, state, sometimes federal
authorities via sponsorship needed for issues
 Often causes compliance, problem solving, data
collection not possible through traditional
regulatory and administrative procedure
 Often government provides staff support role!
*Collaborative Principles Apply to
Regulatory & Advocacy Work
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Gives enforcement & policy staff expanded
tools for addressing compliance issues
– Resolving disputes among or within groups
– Developing policies that recognize power
– Voluntary compliance often more sustainable
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Can resolve issues on the ground
 Can produce more realistic, accepted policy
What are the key ingredients?
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Finding the source of the conflict
 Who are the parties?
 What are their interests?
 What’s their power to influence outcome?
 What’s their BATNA?
 Knowing that the most important factors are
often away from the table
Assessing the source
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What has to be resolved to end the conflict?
– What, if resolved or removed, would end
conflict and obviate need for conflict process?
– Often, critical questions are not evident
– Formal conflict may be over an EIS or quota,
but the real source of the conflict may be fear of
losing some important right or access; or losing
an irreplaceable or meaningful resource
– Finding the real source of the conflict is
essential so that the right issues get attention,
and needed parties are present and engaged.
Who are the parties?
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Source of conflict determines who to engage
 Three kinds of parties
– Direct--must be at the table
– Indirect--consulted, may have to approve, comment
– Interested--need to be informed
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Anyone necessary for implementation or who can
undo an agreement must be involved at a level that
will allow them to accept the outcome
 Otherwise, they may work against resolution, or
important input may be lacking
What are the interests of each party?
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Interests are different than positions
– Position is an end point; hard to negotiate over
– Positions lack context; interfere w/solutions
– Interests are concerns or needs that must be
addressed to resolve conflict. Once identified,
can be explored, in open, creative ways.
– Interest-based negotiation is among the most
successful for policy and environmental
disputes, and also in labor and commercial.
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Positions may be incompatible; noncompeting interests can form agreement.
What is the power of each party to
influence the outcome?
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Thus, to know how to arrange a negotiation,
assess the relative power of key parties
– to each other
– to this conflict (power is conflict-specific)
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Examples of power
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Legal standing
Access to media, direct action
Personal stature, knowledge, respect
Personal contacts among parties, outside
Real power is exercised away from table
What is the power of each party to
influence the outcome?
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Mediation forum must equalize the power
of the parties within the forum
 Can pool power for joint gains
 Consensus rule equalizes power; Not votes
 If not satisfied w/participation parties may
use power away from table
 Ground rules to cover use of external power
What is their BATNA?
“Best Alternative to Negotiated Agreement”
 Not, “what’s my final position”, but “what
could I actually achieve on my own?”
 As long as the process offers more than the
BATNA, parties will normally stay engaged
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Features of Successful
Collaborative Processes
Cormick’s Principles
Strengths / Risks
Purpose-driven
A reason to be there, clear goal
Inclusive
Constituents with “significant interest”
involved
Voluntary
Constituents willing to come to the table
Self-Design
No preconceived ideas / solutions
Flexibility
Able to adapt process to meet needs
Equal opportunity
All involved parties have equivalent access
Respect for Diverse
Interests
Lots of listening
Accountability
Representatives are accountable
Time Limits
Deadlines, assessment points
Implementation
Must have reasonable guarantees, recourse
re: implementation
Building an Agreement
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Choosing an acceptable convener
Convening the parties
– Determining representation
– Ensuring true representation
 Developing ground rules
– To equalize the power
– To create certainty
– Set deadlines
– Preserve rights
– Creates the first agreement among the
parties
Building an Agreement 2
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Create safe forum
 Start with areas of agreement
 Constructively explore interests
 Role of the convener
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Jointly selected
Works ahead of meetings
Gets to know the parties
Gets to know the issues
Build trust with and among parties
Set plan and agendas; get agreement on agenda
Prepare parties for each meeting
Building an Agreement 3
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Exploring issues jointly, e.g.
– Joint data collection
– Joint exploration
– Jointly specify assumptions of any studies
– Use joint committees
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Use only agreed upon experts
 Neutral staff crucial to large, ongoing issue
Some Dynamics
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Deadlines matter, create movement
Best offers often in worst language, so
– Listen for the whole presentation
– Respond to the offer, not the insult
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Help representatives be effective
Progress begets trust, begets progress
Settlement aided by making problem bigger
Settlement requires giving, not hoarding, info
– others must know what you want (interests)
– you must know what they want (interests)
– But be cautious how you reveal your interests
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Agreement won’t resolve underlying differences
Getting Closure
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Hardest conflicts often within groups, not among
May require different public than private positions
Strike when hot: No buyers remorse, sellers regret
Capture agreement in writing
Don’t let anyone “get theirs first.” Even the
agreement must recognize the mistrust
Drawbacks, Cautions, Oppy’s
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Not always cheaper
Not always faster
Can be especially difficult for some groups to
keep people and resources tied up
May cause criticism from own constituency
Often estranges members from their groups
Ongoing forums like NW Straits, NRC overcome
many, not all of the drawbacks
Systems or ongoing forums are insufficiently
utilized
A Few More Observations
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Collaborative approach not always best
Note importance of power in creating opp’y
Recognize limits of legal compulsion; power of
voluntary action
– Opp’y for enforcement via voluntary, peer action
– More can be done when people are not forced, and
when the response respects their circumstances
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Needs to go from informal to structured
Scale and breadth must reflect scale of issues,
influence and authority
 Note informal spin-offs that help future problems
 Trust is a result, not an ingredient
Why choose collaborative
principles for problem-solving?
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When faced with a choice between two
evils
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Try the one you haven’t tried…