Getting Beyond “So-So”

Lessons Learned from Mediated Negotiations and Environmental Conflicts

Panel members: William F. Lincoln, Polly Davis, and Maralise Hood of the Conflict Resolution, Research and Resource Institute, Inc. [CRI]

Purpose of the Workshop

If our profession is committed to the continual development of best practices then all of us must discontinue accepting practitioners’ shortcomings as merely the intrusion of external causal factors over which we have no control or even influence.  Such excuses and rationalizations must stop. 

When the mediation efforts produce results that causes all parties to be dissatisfied we have to ask ourselves what did we do or not do that contributed to that dissatisfaction.  No more saying “It must be a good agreement because no one’s happy.”  Thus, in this presentation our efforts to contribute to the enrichment of the field’s knowledge base and the perfection of the practice of mediation will be candid in disclosing “what went wrong” in three of our cases.  We hope you will be equally candid in the subsequent group discussions.

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Description of Our Approach to the Topic

Among the cases we’ve mediated over the years there were three environmental conflict resolution settlement agreements from which some disputants emerged with low levels of satisfaction.  The three scenarios are briefly described below:

§         The practice of wheat stubble burning by eastern Washington farmers was before federal court with assertions by the grassroots health and environmentally focused Save Our Summers (SOS) advocacy group that the State of Washington’s Department of Ecology’s burn permitting process was in violation of the American Disabilities Act since it allegedly caused severe adverse effects for persons with chronic lung disease such as asthma and cystic fibrosis. The US government feared that if the case was ruled in favor of the plaintiffs the ruling could “gut” the practicalities of the Clear Air Act, and if not ruled in favor of them then related laws did not apply to protect the health of the most sensitive persons among the citizenry.

§         The US Secretary of Transposition created a federal commission to develop the Puget Sound Long Term Oil Spill Risk Management Plan co-chaired by the US Coast Guard and the State of Washington’s Department of Ecology, and which was comprised of twenty stakeholders, some of whom were long term “myopically issue-focused adversaries.”  Panel members included elected county, state and federal legislators; tribal government leaders; environmentalists; representatives of the fishing industry, the freight shipping industry, oil refinery and shipping industries, and the towing and maritime pilots associations.

§         Trendwest, Inc., a well known vacation time sharing corporation with world wide facilities, was committed to developing a significantly large destination resort MorningStar (mow called Suncadia) on approximately 7,500 forested acres of the rural, historic and economically depressed town of Roslyn, film site of the popular “Northern Exposure” television series.  The original Master Plan Resort enjoyed broad local business community support yet was continually challenged and delayed by RIDGE, a local grassroots environmental activist group —at a daily cost of $14,000 to Trendwest in interest charges plus expensive and seemingly endless litigation costs.

Summary of Commentary

We, who have very high dispute settlement and agreement compliance rates, are either very courageous or very foolish to document our shortcomings in these three cases just described.  Remember, in each case a resolution was achieved.  Nonetheless, as stated above there were varying levels of dissatisfaction by the parties, and we believe that in some form we contributed to those dissatisfactions in three general categorical ways, i.e., procedurally, substantively, and psychologically.

               1.            Procedural Dissatisfaction:

Procedural satisfaction is achieved through a process that was what ever each disputant wanted that process to be, e.g., focused, business-like, amicable, thorough, efficient, orderly, etc. The test for procedural satisfaction is simple: Regardless of substantive results, under similar circumstances would disputants use this process again?  In these three cases did the parties acquire procedural satisfaction?  We don’t think so. 

·         In the oil spill risk management case we evidently were unable – thus ineffective -- to assist the parties to realize and accept the mediators’ role functions.  Consequently the mediators were expected to exert more effort than the parties who continually looked to the process’ co-chairs [U.S. Coast Guard and Washington State Ecology] to make determinations for the entire group. 

·         We did not always customize the mediation process to meet the parties circumstances in terms of comfort level, confidence, organizational and personal realities or the case’s legal status, e.g., the oil spill risk management case had two formal quasi legal co-chairs [U.S. Coast Guard and State Ecology] who themselves developed the agenda and related work plan in the interest of bureaucratic efficiency thus depriving the group of process equity, process ownership and process trust. 

·         In the wheat stubble burning case it was difficult for farmers to participate each week for two consecutive days of mediation 150 miles from their farms, and parent members of the opposing Save Our Summers [SOS] had inflexible schedules related to medical care, daycare, or educational classes. 

·          In all three cases we permitted the parties to develop unrealistic issue agendas to be addressed within unrealistic schedules which at times caused exhaustion, “brain drain”, and discouragement on the part of all participants. We failed early on to cause the parties to reassess and revise their unachievable work plan.

·          We underestimated the needed time for parties to disseminate, discuss, comprehend, and resolve technical data ¾ particularly in the oil spill risk management and wheat stubble burning cases.

·          One person in the oil spill risk management case constantly complained about her time and economic burdens of process participation, but we did nothing to assist her or even think about trying to mitigate her inconvenience -- due in part because this person was exceedingly uncooperative and not easy to liked.  In summary, we ourselves were unable to “separate the person from the problem.”

·          We have never liked mediating cases in public ?and there we were again in the oil spill risk management case in the presence of constituent groups, observers, and the news media.  Furthermore, the ground rules established to govern the public’s presence were seemingly unenforceable since panel members would interact with the audience.

·          We still don’t know how to deal with the oxymoron of “consensus minus two” which was the federal commission’s “guideline” for decision making by the Puget Sound Long Term Oil Spill Risk Management Planning Panel. 

·          In some instances, such as with the parents in the wheat stubble burning case, many of the disputants did not know how to negotiate ¾ they only knew how to fight, how to argue, how to manipulate, how to beg ¾ thus making the mediation very difficult, and we hadn’t trained them how to do otherwise.

·          The oil spill risk management case involved over twenty parties and twenty-five issues ¾ a seemingly perfect scenario for several working groups.  Yet we couldn’t make it happen ¾ the disputants always wanted to know what “all the others are doing”, and thus insisted always meeting in plenary session. 

·          In the Trendwest rural destination resort case the parties wondered if the process was ever going to end ¾ and we also openly shared our own impatience, frustration, and dissatisfaction with meetings occurring on a string of summer weekends.

               2.            Substantive Dissatisfaction:

Substantive satisfaction is achieved when the topical issues addressed resulted in the disputants’ respective interests, i.e., underlying principles, being satisfied at acceptable levels, e.g., as in ‘all things considered’ with regard to economics, time, reputation, professionalism, health, self esteem, security, inclusion, acceptance etc.  Were the parties satisfied?  In some instances, “yes.”  In other instances, “so-so.” 

·         In the oil spill risk management case the parties couldn’t agree as to the purposes and conditions for why they were empanelled on the federal Puget Sound Long Term Oil Spill Risk Management Panel – despite their individual acceptance and official signatures on a federal document.  We still don’t know what else we could have done to make several parties remember why they were “commissioned” and why they accepted the commission i.e., to develop recommendations to manage (reduce) the risk of oil spills and not how to respond to oil spills. 

·         When we entered two of the mediation scenarios we did not dissuade disputants’ high expectations of results.  In both the oil spill risk management and the wheat stubble burning cases various parties were overly optimistic that they would get everything they wanted because of their own perspective of their case merits and the “morality” of their proposals.

·          In the wheat stubble burning case the opposing Save Our Summers [SOS] parents literally did not know what they wanted as demonstrated by the competing proposals among their own team members ¾ and we were ineffective in helping them become a unified team.

·          In the oil spill risk management case many of the issue agreements achieved involved commitments to additional complex technical planning and/or regulatory review.  Therefore there was no immediate gratification in terms of changing the status quo, and no satisfaction with an elusive certainty although some parties kept looking to the co-chairs [Coast Guard and State Ecology] to provide best maritime management practices and standards of care.

·          Due to the parties’ [and the mediators’!] eagerness to gain closure on specific issues there wasn’t always confidence that their own principles (interests) were truly or at least fully being met whether such be safety, health, economic, aesthetic, political or whatever. 

·          In the rural destination resort case the parties came to clearly understand substantive agreements, but became concerned and confused when the attorneys translated the clearly understood settlement language into legal terminology ¾ while we insisted on the appropriateness and need for us to extricate ourselves in part to control our expense bills which already exceeded what the parties had anticipated.

·          We were kind of dismissive of some parties who continued to wonder whether or not they could have done better in court.

·          In the wheat stubble burning case the Save Our Summers [SOS] parents and attorneys were unconditionally dismissive of the farmers’ economic, lifestyle, and personal interests ¾ we were deficient in skills to cause any transformation of such attitudes and behaviors.

·          In the wheat stubble burning case all parties including the Attorney General’s Office continually reassured us of their authority to negotiate, but after the agreement was signed Washington State Ecology claimed its negotiators were not authorized ¾ at that point we stopped mediating and began arguing.

               3.            Psychological Dissatisfaction:

Psychological satisfaction is achieved when each disputant feels some sense of relief, e.g., achieved ventilation of emotions, the matter is over, closure, confidentiality, lost but not as much as feared or as possible, high level of procedural satisfaction, high level of substantive satisfaction, etc.  Were the parties psychologically satisfied?  If so, then just barely.

·          The whole idea that “the truth will set you free” can backfire, e.g., we and the oil industry reminded parties that although risk factors could be mitigated nonetheless some oil spills most likely would still occur.

·          Persons didn’t feel they received the individual pastoral attention from the mediators that they needed.  Much of the interaction with each other over the years caused mistrust now ingrained in them.  Parties came out of the process at nearly the same level of mistrust for one another in which they entered.

·          In the rural destination resort case an agreement with the RIDGE environmentalist party alienated a significant portion of the developer’s own constituency, e.g., a group of citizenry not at the table but to whom the developer said it would keep fully informed.  We were not always diligent in monitoring the developer’s vertical negotiation responsibilities.

·          We were unable to diffuse anger or to lift the spirits of parties when adversely effected by external variables, e.g., when the US Supreme Court ruled that the US Coast Guard ¾ not the states ¾ has the jurisdictional authority to regulate shipping along the nation’s coasts, or when the Al Gore campaigning for the presidency had money taken from the Coast Guard’s budget without prior notification in order to provide an escort tug for the mouth of the Puget Sound.  The tug and monetary support was the most contentious issue of all, not desired by the oil industry, shipping industry, or the Coast Guard.

               4.            Other Contributing Factors to the “so-so” Assessment and Feelings:

·          Due to our own organization’s heavy workload we should never have accepted the opportunity to mediate these cases.  Our appreciation of the nature and the seriousness of these three conflict scenarios hindered our making an honest and realistic assessment of our available time and energies.

·          In accepting our selection as mediators we paid little attention to various contractual precisions including confining time frames, burdensome reporting systems, significantly inadequate funding provisions, and geographical distances between parties as well as from ourselves. 

·          Our inability ¾ due to the two factors identified above ¾ to fulfill a mediator’s function which we have done so thoroughly well in countless other cases, e.g., pastoral functions? which are primarily comprised of frequent private quasi social moments shared by the mediator and the individual disputant.  Such instances are separate from caucuses for the purposes of background-data gathering, conflict assessment, remedy explorations or reality testing.  Instead these individualized instances of “getting to know you better” are experiential demonstrations of acknowledgement, attentiveness, acceptance of personhood, and caring—as impartial as such may be.  While the genuine intrinsic nature of pastoral functions must be valued in and of themselves, one cannot discount likely utilitarian results of such expressions of attentiveness, i.e., increase “likeness” of the mediator as a person, increased trust of both the process and the mediator, a sense of “being accompanied” throughout the process without role compromise, appreciation of their perspective, a clear acknowledgment of this extra effort beyond the formal process, and more empowerment for the mediator to do her or his job.

What We Will Do Differently to Getting Beyond “So-So”

·        Assess the availability of our organizational and individual professional capabilities and resources in the context of current and near future responsibilities and involvements as well as all contractual provisions.

·        Insist that prior to multi party mediation all parties will fully participate for a minimum of two days of training in negotiations [collaborative planning and cooperative problem solving] as well as the role functions of a mediator and the responsibilities of the parties.

·        Assist the parties (i) in designing the logistical aspects of the mediation process to be responsive to their particular realities in ways that are practical and equitable within the realm of “all things considered” and (ii) in developing with the parties an achievable work plan ?while remembering we are the people with people with the experience and professional perspective to help others to decide what is “achievable.”

·        Adhere to our philosophy and normal practice of frequent and quick “process checks” as a means to determine levels of procedural satisfaction and whether or not there are needs for refinement.

·        Manage the processes of data exchange in efficient ways without sacrifice to thoroughness or comprehension ?with particular attention to determinations of relevancy and the prevention of redundancy.

·        We, too, must (i) separate cause from blame, (ii) separate “people from the problem”, and (iii) separate ourselves from any overarching influences ?it’s “not” about us. 

·        Diligently and impartially perform the mediator’s pastoral role functions as described above.

·        When ever necessary reach out for additional resource assistance without hesitation or apology.

·        Be ever mindful that while we have obligations to the parties we also have responsibilities to the problem itself.  As practitioners we are not merely facilitators of the process, but are stewards of the process as well.

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