Negotiation has come a long way. A once purely adversarial, one-time event has evolved into a relationship-based, ongoing process that puts a premium on empathy and co-operation. This author, an expert educator who has played a critical role in improving negotiators’ skills and the results they achieve, discusses the substantial changes that have occurred in how negotiations are conducted today.
Ivey Business Journal, July/August 2004Linda Stamato
There is a new day in Morningside Heights since Lee Bollinger took over the presidency of Columbia University. Pressed by the need to expand but aware of the spectacle of 1968 when his predecssor, seeking to expand into Harlem and build a gymnasium in Morningside Park touched off a campus rebellion and opposition among local residents, Bollinger decided to establish a 40-memberr community advisory council as it prepared to embark on its plan to creatae a new campus on 18 acres bound by 125th Street, Broadway, 12th Avenue and 133rd Street. It sponsored town hall meetings to solicit comments and worked with Comunity Board 9 whose district includes West Harlem. Columbia is seeking to be “part of building the community” according to Bollinger (New York Times: 4/21/04, B8), and has incorporated a number of design principles that came from the community discussion,s notably retaining current streets and building designs that invite pedeestraisn to move west toward the river, enlivening 125th Street as a gateway to the Hudson River waterfront, aligning with city and state efforts to improve the piers for recreation and commuting purposes. At the same time, Bollinger is working with the community to create job traing programs and to provide both construction and technical job opportunities. He is also looking to work with the community to expand ways in which Columbia can provide space for community arts, theater and dance as it expands.
Inclusive, participative processes that seeks to broaden and deepen the links between institutions, developers and communities reflect another significant dimension of the field of negotiation and conflict resolution, that having to do with improving processes for decision-making, involving those who are part of and likely to be affected by decisions, and attempting to produce outcomes that are satisfactory, even optimal, and that sustain and build relationships that last.Linda Stamato, Sanford Jaffe
A major development, concerning the management of negotiations to create a trust fund to compensate people made sick by asbestos exposre, brings mediation to the national legislative process. Unable to agree on the terms for creating the trust fund, U.S. Senate leaders have agreed to enter mediation. A federal judge, Judge Edward Becker of the U.S. Court of Appeals for the Third Circuit in Philadelphia, is mediating.
In agreeing to participate in the mediation, Tom Daschle (D-S.D.), the Minority Leader, wrote the following to Bill Frist (R-Tenn.), the Majority Leader: “An inclusive approach holds the best promise for moving toward a consensus solution of this very contentious and consequential issue.”
The legislation is needed, advocates for victims and insurers agree, as a wave of lawsuits clog the country’s courthouses. Roughly 730,000 asbestos claims have been filed, including over 110,000 last year, according to a study by the Rand Institute for Civil Justice (reported in The Star Ledger, 4/23/04, pg.6). The cost of the litigation is approximately $70 billion and almost 70 companies have filed for bankruptcy protection under the weight of the lawsuits. The legislation, under consideration, aimed to create a trust fund financed by businesses and insurance companies. Officials from both political parties agree that something needs to be done to improve the system but they disagree on what to provide, in structure and financial resources.
The clear and pressing need for a resolution motivates the parties, and, certainly, the agreement to engage in mediation to reach a legislative compromise is a new and intriguing turn in the dispute resolution field.Linda Stamato, Sanford Jaffe
Conflict resolution is being used with increasing frequency to supplement, and, in some cases, supplant traditional decision-making processes at all levels of government. By emphasizing process over partisanship, conflict resolution has enabled advocates of seemingly irreconcilable political views and conflicting agendas to develop policy and legislation. Agreements have been reached on broad issues such as education and transportation policy as well as on more discrete issues such as highway location, port development, urban renewal plans, and the siting of power-generating plants.
CONFLICT RESOLUTION AND CULTURAL CHANGE
Conflict resolution seeks to resolve a conflict in ways that satisfy the objectives of all the parties through a cooperative, voluntary process. It generally involves joint fact-finding, analysis, and discourse to devise solutions. Conflict resolution encompasses both direct negotiation and, as is frequently the case, mediation by which a neutral facilitator helps the parties reach agreement. In some instances, however, mediators are not disinterested neutrals at all, but rather, conveners with a compelling interest in the outcome.
The conflict resolution trend has some twenty years experience now. Still, there remains a sense that conflict resolution is something that takes place at the margins — a peripheral process — that has yet to be incorporated into the public policy and planning culture. This perception persists despite a number of impressive success stories, including those in state legislation and policy-making, land use and community development, economic development, and environmental protection.
State Legislation and Policy-Making
In some states, legislatures are employing problem-solving approaches in the development of legislation by bringing affected groups into the process. In Wisconsin, for instance, beginning in the mid 1980s, committees of legislators from both sides of the aisle and representatives from industry, environmental groups, and executive agencies joined to produce major state laws on such controversial issues as metallic mining reclamation, regulation of stationary sources of air pollution, solid and hazardous waste disposal siting, and groundwater management. The inclusive nature of the consensus-building legislative process tends to produce a better outcome, leading to more effective legislation and broader acceptance of it.
Land Use and Community Development
In the area of land use and community development, the Atlanta Neighborhood Development Partnership (ANDP) illustrates the value of conflict resolution in urban revitalization efforts — a particular challenge where the lack of the financial, political, and community wherewithal often presents an impediment to a sustained planning and implementation process. The ANDP provides funds and technical assistance to community development corporations in more than a dozen neighborhoods in the Atlanta area. Its success lies in bringing together and generating the active support and participation of grass-roots groups, corporations, foundations, and government agencies to develop and implement land use decisions. Through these collaborative efforts, ANHP has built more than 5,000 units of affordable housing. This required reaching consensus on ends — to preserve historic neighborhoods and build new affordable housing — and means — to generate investment dollars, revitalize community organizations, and maneuver efficiently through zoning, building, and land acquisition regulations.
Economic Development and Environmental Protection
An unusual partnership between upstate farmers, state and federal environmental officials, and New York City officials provides a national model for urban-rural cooperation on economic development and environmental issues. The partnership began as open warfare. The City, under pressure from the United States Environ-mental Protection Agency (E.P.A.,) issued a draft of proposed revisions to its watershed regulations. These regulations focused on upstate farms as a primary source of unwanted nutrients and intestinal parasites threatening the city’s water quality. The proposed regulations would have devastated farmers, removing significant acreage from grazing and planting. In response to farmers’ protests, upstate politicians forged a coalition to fight the regulations.
With the controversy mounting, a state deputy commissioner set up a forum where farmers and city officials could seek a “just peace.” A series of meetings followed yielding an ad hoc task force that sponsored programs to demonstrate to farmers the links between their fields and herds and the drinking water for 9 million people. Federal and county agricultural experts spoke about the concept of the “whole farm plan” in which experts tailor recommendations for each farm, projecting a reduction in the flow of pollutants that would also boost profits. At the same time, city and federal environmental officials were brought to several of the farms and shown how much land farmers would lose if the projected rules were adopted.
Gradually, a plan for the watershed began to evolve. The farmers insisted that it be run locally, be entirely voluntary, and financed by New York City. In return, the city held out for the right to reinstate stringent regulations if the farmers failed to recruit at least 85% of the 550 farmers in the watershed by fall of 1997.
The plan is being implemented successfully and monitored: the city has provided the funds; the number of farms signed on to the program is ahead of schedule; monitoring stations have been established at critical points to document changes in pollutants and hazardous microbes; and, federal funds have begun to flow into agricultural councils for detailed studies of pathogens in dairy herds. The plan has, moreover, helped to integrate a region that has been divided by water for years. The result adds weight to the theory that local, flexible efforts to cut pollution can be more effective than top-down, by-the-book regulations. It also demonstrates the potential — the intrinsic value-added dimension — of mediation, that more can be gained in meeting interests than in simply reaching a compromise.
MEDIATION VS. LITIGATION
While conflict resolution is not appropriate in all cases, it represents an appealing alternative in many situations. There are several reasons why. First, it is less formal and expensive than litigation and other formal adjudicatory processes. Second, it is likely to be more accessible. Third, and perhaps most importantly, it responds to problems underlying the disputes, attends to the interests of the parties, and can produce resolutions that are more efficient and enduring. The challenge is to fit the dispute to the appropriate forum or process.
Courts are clearly the proper forum for resolving constitutional matters, clarifying legal principles, and establishing a precedent of public importance. In contrast, mediation is appropriate for handling matters where:
- the litigants’ participation is needed to implement their agreement (i.e., compliance is a variable and modification may become necessary);
- there is no need or desire for precedent;
- a mix of decisions is needed;
- there are underlying issues present and resolving the dispute is more important than satisfying principle (e.g., cleaning up a toxic waste site;) and
- there are continuing relationships — such as in land use disputes — and a process that pits one against the other and determines a winner and a loser is ill-suited for devising remedies that work.
PREPARING FOR THE FUTURE IN NEW JERSEY
What needs to happen if consensus-based approaches are to be used to develop and implement land use decisions in New Jersey? Simply stated, a receptive climate, one that generates an informed, active, and participating citizenry is needed. Both executive and legislative branches of government need to be exposed to the potential that these approaches can offer in addressing land use (and other) needs. Reform also needs to be advanced in the courts to provide access to options for resolving disputes other than traditional adjudication — and, where they exist, to encourage their use. In addition, frameworks need to be created that encourage and support negotiation and mediation so that public institutions and private ones — as well as community-based organizations — will have a capacity to plan for the future and resolve land use disputes in less confrontational ways.
Much of the future use of conflict resolution rests on those procedural frameworks and their success in producing outcomes that work. The process needs to be grounded in a number of general principles:
- all legitimate stakeholders to a dispute (or decision) must participate in its resolution;
- parties must trust that the process is fair and inclusive, and agree to and act in good faith;
- parties must focus on their objectives (needs and interests) and remain flexible about how those objectives can be satisfied;
- implementation of agreements must be assured.
In New Jersey, there have been some important land use issues that have benefitted from conflict resolution approaches. The Council on Affordable Housing (COAH) now has over a decade’s experience with mediation. Under its rules, COAH conducts mediation when there is an objection to a municipality’s fair share plan. The State Planning Act established the “cross-acceptance” process to involve the “full participation of State, county and local governments as well as other public and private sector interests.” The Office of State Planning is now gearing up for its second cross-acceptance process. The cross-acceptance process illustrates how process can shift the focus of planning (and policy) from short-term crises to long-term concerns. In addition, the Department of Environmental Protection has set up an Alternate Dispute Resolution Program.
Planners may know of local or regional examples of consensus-based approaches to land use, either with respect to developing plans, on the one hand, or to site-specific disputes on the other. I encourage those who know these stories to talk about them here and elsewhere. Examples of consensus-based approaches need to surface and be shared. Widespread awareness of such precedents is necessary to bring about the cultural change that — along with the requirements set forth above — are essential for the unusual in land use planning and practice to become the ordinary.
Linda Stamato is deputy director of the Center for Negotiation and Conflict Resolution in the Bloustein School of Planning and Public Policy at Rutgers University. She teaches in the Department of Public Policy, writes and lectures on negotiation and mediation, and, on occasion, mediates complex disputes.
This article was originally published in the New Jersey Planners’ Journal.Linda Stamato