Maa-78.3360 Maankäytön suunnittelun erikoistyö (2014) - Aalto Course on Negotiation and Dispute...

Maa-78.3360 Maankäytön suunnittelun erikoistyö (2014) - Aalto Course on Negotiation and Dispute Resolution

Jonna KangasojaAalto University

7.5. and 12.5.2014

Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

Background: conflict research

7th and 12th May 2014


The background – environmental conflict resolution in the US

• Research visit to Boston 2012-2013

• Working at CBI, getting to know their work & people, interviewing practitioners

• Studying (public policy) mediation at Harvard PON and MIT w/Larry Susskind

• Ongoing work on the mechanisms of environmental dispute resolution in the US and possible lessons for Finland.



Conflict is a messy knot

• In conflicts, parties interrupt, disturb or obstruct each others’ actions toward their goals

• Interdependence – the knot will not open by pulling harder

• Interpretations of the situation are an essential element of conflict


Cyclical character of conflict

1. Causes of Conflict

2. Visible phase of conflict

3. Consequences

of conflict

Goal incompatibility

Conflict communication; expressions hostility

Escalation / resolution


Escalation vs. de-escalation



Options in conflict?



Three basic reactions in conflict

• Voice: Interaction• Loyalty: silent approval• Exit: retreat

• Fight• Freeze• Flight

Hirschmann, A. O. (1972). Exit Voice and Loyalty: Responses to Decline in Firms, Organizations, and States, Harvard University Press.


Traditional vs. Alternative Dispute Resolution (ADR)

Traditional Collaborative

Outcome Declared winners and losers; Loss of trust

”Mutual gains” (win-win), enhanced trust

´Style of interaction Indirect (e.g. formal statements in a legal setting)

Direct: face-to-face meetings

Decision process Universal – same rules for all problems

Tailor-made, ad hoc rules suited to the setting & problem

Costs Initially low, higher in the long run

Initially high, lower in the long run

Representation Same set of representatives (e.g. political bodies)

Ad hoc; chosen specifically for the process and problem at hand

Susskind, Lawrence & Cruikshank, Jeffrey (1987). Breaking the Impasse: Consensual Approaches to Resolving Public Disputes. Basic Books, New York.


Why is mediated negotiation not practiced for solving public problems in Finland?

• ”Neutrals act as surrogates for trust” (Peter Adler)

Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute

Resolution7th and 12th May 2014

Cultural / institutional differences between Finland and the United States

Finland• More trust in government• Public policy strong on

”public interest” • More homogeneity, more

collectivist culture• Consensual politics• Nordic legal culture of social

protection• ”Low context” – less need or

appreciation for process & communication skills

United States• Low trust on government• Private (”special”) interests

infiltrate public policy• Highly fragmented society,

individualism• Divisive politics• Common law tradition and

legal culture of litigation• High context: need for

communication between groups


Resolution7th and 12th May 2014


The roots behind Consensus Building…

A tradition of negotiation and mediation theory and practice



Two persons want the same orange – how to solve the conflict?

Position:”I want the orange”

Interest: Thirsty for orange juice

Interest: Need to garnisha dessert dish

Position: ”I want the orange”

COMPROMISE



PROBLEMPositional Bargaining: Which Game Should You Play?

SOLUTIONChange the Game — Negotiate onthe Merits

SOFTParticipants are friends.

The goal is agreement

HARDParticipants are adversaries.

The goal is victory.

PRINCIPLEDParticipants are problem-solvers.

The goal is a wise outcomereached efficiently and amicably.

The idea of principled negotiation in Getting to Yes

Naive idea of Consensus Mature idea of Consensus7th and 12th May 2014


Informal problem-solving

• Negotiation• Facilitation• Conciliation• Mediation - assisted negotiation



What is mediation?

• A voluntary and guided process in which a skilled mediator helps the parties to negotiate the settlement of a dispute.

• The process is not binding unless or until the parties reach agreement.

• A facilitative process in which a mediator works with parties (one on one and with all together) to find solutions to underlying concerns.



What is facilitation?

• Process of designing and running a successful multiparty process Including: – Creation of goals– Ground rules– Agendas– Management of meetings, information, agreements

• In order for constructive face to face dialogue and resolution of issues to be possible– Preceded by individual meetings with parties– Which is preceded by situation assessment



Mediator/Facilitator

• Someone who helps a group of people understand their common objectives and assists them to plan to achieve them without taking a particular position during the process or discussion

• Facilitator/mediator must be conceived neutral by the parties


• We accept an adversarial approach to decisionmaking when facilitated joint problem-solving would produce results that are – fairer in the eyes of the parties– more efficient from the standpoint of an independent

analyst– more stable as defined by the terms of the agreement,and – wiser, in retrospect, according to the parties and

independent analysts.• The adversarial format drives out joint problem-solving.

It also inhibits value creation, the invention of options, trades, or packages […] across interests to produce good outcomes for all sides

The adversarial problem

Susskind, L. (2009) Deliberative Democracy and Dispute Resolution. Ohio State Journal on Dispute Resolution 24 (3): 1-127th and 12th May 2014


Resolution

Moderator vs. Mediator• Stating arguments (moderator) vs. mediated action (mediator)

• Moderating arguments neutrally falls short of mediating practically crafted agreements about WHAT TO DO

• The mediator encourages participants to "make a proposal that would satisfy you" turns the conversation into future rather than concentrating on present disputes

• Mediators aim to get as much knowledge to front as possible• Even when there are deep value differences there can be practical agreements

made of the common interest • Mediation is especially needed when participants have radically different values!!

John Forester, lecture RECONSTRUCTING COMMUNICATIVE PLANNING TKK, Otaniemi, 18.6.2004.



Mediation

• “A process in with one or two neutral mediators help people in a dispute communicate with one another, understand each other, and if possible reach agreements that satisfy the parties needs.”

• Mediation focuses more on the underlying interests of the parties than on their legal rights – Interest-based approach “helps people reach their

own agreements, rebuild relationships and if possible generate lasting solutions to their disputes.”



Flexibility

• Mediation can address a wider range of issues• When helpful also engage other stakeholders• Mediation can help parties addressing a range of

related issues that may go beyond the problems enumerated in a specific instance



Exploring the space of Assisted/ Mediated negotiation

• Public Policy Mediation, a.k.a • Collaboration (collaborative natural resource management,

collaborative science… ), a.k.a • Consensus Building

• Shared ideas– voluntary processes– negotiation (not deliberation, dialogue, discussion)– Facilitated / mediated by neutral third party– Addressing multi-party public problems– involvement of both public and private parties



One variant: Public Policy Mediation

An interactive process, designed to reach an actionable and sustainable agreement to achieve a common public goal, that is rooted in a careful exploration and weighing of interests and options, which emanate from the perspectives and knowledge bases of a diverse set of individuals and organizations.

Susan Podziba: Introduction to Environmental and Public Policy Mediation. Workshop at the Centre for Urban and Regional Studies Helsinki University of Technology, 1-2 December 2004



The Mediated Negotiation Process

• convenor• assessor• stakeholders• assessment

report

Assess the Potential

Design & Decide on

Process

Clarify Facts& Options

Seek Joint Gains

Implement, Adapt

& Learn

Reach Agreement



Stakeholder assessment

• A good stakeholder assessment shapes the problem solving process– Define the issues to be addressed– Determine the representativeness of the

stakeholders– Clarify how the parties may be represented– Identify additional parties– Clarify procedural challenges– Determine suitability of problem-solving and

propose process design7th and 12th May 2014


Conducting a stakeholder assessment

• Choose an assessor– Credibility and competence

• Establish limits of confidentiality• Conduct interviews:

– Protocol– Number of interviews– Additional stakeholders Summarize information & offer recommendations decision to proceed with mediation/not to proceed



The promise of mediated negotiation

"mediated negotiation is attractive because it […]• allows for more direct involvement of those most

affected by decisions than do most administrative and legislative processes;

• produces results more rapidly and at lower cost than do courts; and

• is flexible and therefore more adaptable to the specific needs of the parties in a given situation.”

Susskind, Lawrence & Ozawa, Connie (1983). Mediated Negotiation in the Public Sector: Mediator Accountability and the Public Interest Problem. American Behavioral Scientist 27: 2, 255-279.


Maa-78.3360 Maankäytön suunnittelun erikoistyö (2014) - Aalto Course on Negotiation and Dispute...

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