Co-Director of the Public Disputes Program, Inter-University Program on Negotiation at Harvard Law School
Topics: consensus building, conflict assessment, neutrality, capacity building, trust
Interviewed by Julian Portilla — 2003
Listen to Full Interview
Listen/Read Selected Interview Segments on the Following Topics
- Consensus-Building Process
- Conflict Assessment Process
- Conflict Assessment Pre-Negotiation
- Maintaining Neutrality in Conflict Assessment
- Complex Problem Solving
- Diffuse Interest Problem Solving
- Self-enforcing Agreements
- Consensus Building in the International Context
- Consensus Building in the Middle East
- Becoming a Practitioner
- Success in Consensus Building
Q: So the first question I ask everybody is will you give me a brief overview of your work?
A: I spend a third of my time at my full time job at MIT, teaching environmental policy in the planning school. I spend another third of my time in my half-time job of running the Consensus Building Institute, a not-for-profit provider of mediation services around the world. Then I spend a non-existent last third of my time at the Program on Negotiation at Harvard, helping to maintain that ??? empty university consortium for research on negotiation. So, I do a lot of teaching and I supervise a lot research and I'm very engaged in practice, which includes training. I work around the world and I've been doing this for thirty-five years. So I have a fairly extensive, far-flung network of former students everywhere and that's pretty much what keeps generating more requests to get engaged in different places. I have a lot of books and a lot of teaching materials that I generated over the years. I've been in front of something between sixty and seventy thousand people, providing training or presenting ideas about complex public disputes.
Q: Okay. In the thirty-five years of inter-ranging trainings and mediations that you've been doing, are there few moments and a few interventions that stand out as particularly inspiring for you?
A: Inspiring in what sense?
Q: Well, it's in a very general sense. I mean moments when you've been very pleased with your work or maybe somewhat surprised by the success or colossal failure?
A: That's a hard question. I've been the responsible neutral in well over sixty very complicated cases around the world. I mean in almost every case there is a moment when I have to decide whether to go forward and take the assignment. Then, there's usually a crisis about whether we can get all the key parties to the table and figure out who they are. Then, there's a moment of jubilation when we get all the key parties to agree to come to the table and convince ourselves we got the right ones. Then, there's a period of great depression when it looks impossible now that everybody's there with regard to solving the problem. Then, there's a moment of a gleeful high, where my God, it looks like we came up with something that's going to resolve all these disputes and we try to put it in writing. Then, there's the moment of great agony when we try to put it in writing and people say, no, no, no that wasn't really what they meant anyway. Then, there's either a sense of satisfaction that something good came out of it that's allowed the people involved to feel that they moved forward with whatever the issue is. Or there's that sense of despair that all that effort has not been able to resolve whatever the difference is and you go on to the next thing. So, in every one of these fifty, sixty, seventy, very complicated disputes, there's that pattern.
So, the inspirational moments are those moments when you actually manage to get people who are combatants or potential combatants on some question or issue, to actually come and sit down around the table and to agree on what they're going to talk about. And how they're going to talk and get started. That's definitely a high. Whether you then generate an agreement or not, separate question. In many instances, I feel like we did the best we could. Sometimes a party has a better alternative away from the negotiating table then anybody can come up with to offer them at the table and it's appropriate for there to be no agreement. So I don't measure my sense of satisfaction or my sense of our contribution by virtue of everybody analyzing an agreement. Rather its based on whether we've done all that we can under the circumstances. So, there are these patterns in all these disputes.
I have worked on very small conflicts between community groups and builders or developer companies, where something minor has got worked out and it seemed quite worthwhile. I've written about these and written teaching cases based on them. It's basically a small issue, I don't know; a church in a residential area wants to lease part of it's space for a community mental health activity and the neighbors are petrified that crazy people are going to come and pillage and rape and we managed to get people to sit down in one evening and work it out and it's very satisfying. On the other hand, I've been involved with the World Trade Organization and the global and environmental community. With Cancun just coming up, I'm trying to come up with better ways of reconciling environmental issues with free trade questions. We spent years bringing these groups together and we've sort of been able to make very small bits of progress on tiny fragments of the larger question, and after three days of everybody beating each other up, to make tiny progress on a small fragment of the question actually seems quite wonderful. It's hard, I mean there's no pattern where the bigger the problem, the more visible nationally, the tougher the dispute, the more satisfying the result when you get agreement. There's nothing like that and I think there's a misconception about that.
Q: Okay, well let's talk about the beginning of that. The pattern that you just went over, getting people to the table in disputes that are very contentious for people don't trust each other or they may even hate each other. How do you begin to go about that and maybe you can contextualize that with an example from your experience?
A: Well, I have written quite explicitly about this in the Consensus Building Handbook. In fact, a large part of what I consider to be my contribution to the practice of public dispute resolution was the invention of the technique of conflict assessment. The formalization of tools of how to do it and the sort of production of good prototypes for what that should look like. At this stage, I feel we know what it takes to get the right parties to the table. It takes the preparation of a conflict assessment by a neutral party. That means that some convener needs to identify a neutral and commission them to give a conflict assessment. The neutral then needs to interview one on one, not for attribution, rather, trying to get at what their issues are, what their concerns are, how they scope the problem, what information they wished they had, who they think should be at the table and then that set of actors suggests a second circle of actors who weren't necessarily obvious to the convener. Then, another round of interviews needs to be done the same way. Then, it needs to be public that this process of assessment is going on, so a third circle of people can step forward.
By the time you're done with those three circles of interviews you should have the neutral maps of the conflict. The map includes an explicit formulation of who are the major stakeholders, who might represent them, what ought the agenda to be, what should the ground rules be given that agenda, what should the timetable be and what should the work plan be. A draft of that synthesis goes to everybody interviewed and the question is if that is what is proposed, would you play? Their reaction to that allows the neutral to have a very clear sense that can be then given in written form to the convener of who needs to be at the table. Everyone who gets to the table has had a hand in deciding who needs to be at the table and what's going to happen when they get there. Absent of that kind of assessment, in my view, it is almost impossible to get right who should be at the table.
Q: And that sort of public awareness of the process, how does that go about? I mean through newspapers, through newsletters? How do you get the word out that this is happening?
A: Well, typically the convener makes public the fact that they're hiring an assessor since it's used ??? public funds and the public disputes world can't be secret anyway. So that whatever way a decision by governmental body is publicized they publicize the hiring of the convener and the neutral. The neutral then prepares a press release with the concurrence of the convener and the neutral puts out the press release the way they put out any press release, at which point the press responds or doesn't respond. The interviews stimulate dialogue between the people interviewed and the constituencies they represent and that gets sort of word moving through informal channels. The document produced, the thing I am calling an assessment, the assessment is both a process and a product. The product I am calling an assessment is a public document. Once you distribute it to seventy, eighty, ninety people that you have interviewed, it's out there. So you publicize the process, but you also publicize the assessment as a product.
Q: So the process and product of assessment, is that often enough to get very, very untrusting parties to the table or is there more than these to have to happen after that?
A: If in the dialogue between the neutral and the parties, one party says no way I'm participating in this and the neutral says so your assessment of your next best option is as follows and the party says yeah I get a pretty good option away from the table. Which could be either going to court or relying on my friends in the political arena. And the neutral says what would it take to get you to the table and the party says, there's nothing, I don't see any way anyone's going to offer me something at the table with certainty better than what I think my options are by staying clear of this. The neutral reports that in this written document called an assessment, which may include a recommendation from the neutral don't go forward, you can't get a key party to the table. Or it might be, I think you should go forward, but this party isn't going to be there representing this constituency and you may go the following route to try to make sure the same stakeholder group is represented.
Following the production of that report, I don't think the neutral has any leverage to try to get someone to come to the table. One of the other parties seeing the report might say oh this is ridiculous we're already going, this one category of actors isn't prepared, what can we gather up to offer this party, what other issue can we put on the agenda, what other commitments can we make to them informally to get them to change their calculation. If the parties do that it's great, but I didn't see any other role for the neutral following the production of an assessment in which the neutral says under the current circumstances I see no way to go forward.
Q: In your experience does the publication of that assessment say hypothetically the" ??? has refused to come? Is it your experience that that publication of the assessment and then other parties willingness to come to the table might leverage the difficult party to come back?
Q: Not even inÃ?Â?Ã?Â?
A: No, because they're saying no and it's based on some rational calculation of what their next best option is. It's highly unlikely that they made a foolish error about their own interests.
Q: Rational seems like the key word there?
A: Well, self-interested.
Q: And I mean what about situations where there is an emotionally charged value differences that keeps a party from coming to the table?
A: One of the nice things about the method that I just described is when I meet with a party; it's not for attribution. It's purely private. If they're very emotional about it, they can yell and scream about it. They can do so; it doesn't have any affect on me. After a while they calm down and we sort of go through and ask, "So do you have a good option?" If we don't go forward and if the answer to that is no ??? and if people would agree to come on your terms you don't want to proceed and they say no if they would come on my terms which includes this and this and this then I'd been proceed and I say okay fine let me check with the others.
Q: So the BATNA check there really seems like...
A: It's the one-on-oneness, not for attribution ???, yelling and screaming to the paper is fine, but that's not what this is. I'm offering people a chance to make a calculated judgment, a strategic judgment about how to pursue their own self-interests. Most people are pretty good at making a decision about their own self-interests. I'm certainly not as good as they are about making a decision about their self-interests. The problem, I think, for a lot of people in the field is they think there is an option of whether they do an assessment. They confuse the mandate of the convener with the product of a conflict assessment. They think a conflict assessment is something where the assessor has a few private conversations with a few key people and if those people say go forward you go forward. I think that has dramatically held back the application of dispute resolution in the public arena. This is because the decision to go forward is a big deal and the parties have to be engaged in structuring the ideas about going forward and now finally we know how to do this. It takes an investment of time and money and energy and effort to form an assessment, but if you do, then I expect that when we go forward it will be with some very good chance of getting the parties to be there and of getting a useful result.
Q: What about the convener? How does a neutral come in, convene by someone, sometimes I am sure they are a party to the conflict, how do they still maintain legitimacy with other parties?
A: I think the sort of three or four ingredients in professional strategy as a neutral deals with the fact that the person convening it is anything but neutral. The person convening it has a huge stake in making something happen. When someone calls me and says, "I'm a party and would you be the neutral?" I say only so far as producing an assessment is concerned. Whether it goes forward beyond that is purely a function of the results of the assessment. The fact that there is a method and the method is explicit and the decision about going forward is in the hands of all the parties is one of the most important tools that I have to distance myself from the bias of the convener. The second is that I stand for a professional code of ethics and I make those explicit. I say, you may be convening this thing, you may even be paying for the assessment, but you don't get to call the shots, I do. If you don't like that, call somebody else. It's very important. The third thing is I have a track record, my organization has a track record. If somebody wants to know why you're being hired by this convener slash stakeholder, and how can we trust you to be fair. I say, well, I have done this a couple hundred times, tell me what kind of group and what kind of contacts you'd like to talk to and I'll give you their name and number and you call them or you go look on our Web page and you see the things that we've done.
So we have track record. We subscribe to a code of ethics. We have a method that is quite transparent and explicit and finally to the extent that we can we ask several of the key parties to be co-conveners or at the very least, we ask several of the parties to contribute to the cost of convening so that to some extent it might deflect concerns about the convener calling the shots. Those are the tools that we use. It doesn't always work. There are still instances in which people say you look just like the convener, you don't look like me, no way I can trust you. In which case I may have to make an adjustment in the staff. We work in teams so we have co assessors and we often try to match the membership and the assessment team. I am working right now between the Bedouins and the Israelis government and we have to have Bedouin, at least Arab, but preferably Arab Bedouin members of the assessment team or there's no way that Bedouins are coming to the table. They couldn't take any money from the Israeli government to do this, so I have to go and raise the money from philanthropic sources to support this even though the government is the convener.
Q: It also sounds like one of the underlying assumptions here is that you don't actually advocate for engagement in the process in the beginning.
A: Quite explicitly not. We say this is a two-stage process. There's an assessment, if the assessment produces a clear indication that mediation or some other form of dispute resolution or consensus building makes sense, then great. If it doesn't then great, that's fine and that's what we mean. My own view is that when the whole profession of public dispute resolution subscribes to this and the methods of conflict assessment, it's going to be a lot easier for everybody to understand that the neutral is not an advocate of mediation in the interim, in the beginning. The neutral is an advocate for exploration of alternatives, and the parties have to make and facilitate the decision.
Q: It must be a lot more complicated on the ground. I mean, I don't know if we can talk about this later and I can erase this later if you like but in terms of the Mexico City contamination thing, I mean that is just such a huge, I mean I am sure you have dealt with a lot of huge things but you know the idea in my mind in dealing with Mexican bureaucracy companies etcetera in a structure whose regulation is pretty loose, this must be incredibly different from the neatness of the conversation were having. How do you deal with the ??? people, the reality of it?
A: There's nothing so practical as a good theory. The way we intervene in Mexico can be explained in simple declarative sentences. Anybody can check to see that we always do the same thing and the way we cope with the complexity and the messiness and the confusion and the difficulty is by adhering rigidly to these absolutely crucial key elements of the process. When the conveyor says well we don't have time for you to really do that many interviews and really want to get started with the mediation, we say then get somebody else. We can only proceed if there's a credible, legitimate, written assessment that anybody will be able to pick up and say well that made sense for the why they went forward and why they chose those parties and scope the issue that way and we say go slow to go fast. If some convener says I want to skip over this and in real life we go right to this and we can't get two contracts, one for assessment and one for mediation, we just give you the contract for mediation and if you say this is the organizational part that's fine, NO, we mean it, get somebody else, we don't do that. We don't short change assessment. They might say don't you want this work, and we say only if these conditions can be met.
So I mean either you believe in the procedure that you use or not. If you do however, I agree with you there is messiness out there in the world, there's gaps, there's pressure, there's misconceptions, there's people pulling their strings for their own ulterior motives, all that's going on. The only way to survive is to hold tight to what you believe is the right way to do it meaning that you have a theory to put ???. So as messy as things get and I can tell you boy, they do get messy, the messier they are, the harder I push on the key principles that guide what I do.
Q: In conflicts, there are often very well-defined parties and then very nebulous parties. Say for example, if they're siting a new airport in Mexico City and there's government and there's contracts, and there's business and then there are residents who may not have an association who may not be banded together in any other sense than that they live in the same neighborhood, and yet they're a party to a conflict. Who comes, who do you talk to, who's their representative when there is no, you know, Citizens, Inc. to come and sit at the table, what do you do?
A: In the process of preparing the assessment we identify categories of stakeholders some easily representable and some so diffused as to be impossible to represent. We then make a proposal in the assessment regarding each category of stakeholders about the method of selecting representatives for that category of stakeholders. We will say it's obvious that so and so has the elected association, so for category one they should be invited. And so and so is in the position of whatever in the government, that's the relevant agency they, their senior designee should come, end of story. In this category of small business owners, there is an association of small business owners but there are a lot of people who are not members. Therefore, we suggest the following procedure for caucusing small business owners.
The convener should invite to a specific event facilitated by us or some other neutral for the purpose of selecting ad hoc representatives for the upcoming exchange if there is going to be one. Invite the association and let them bring five people. Invite the following four small business owners who've been quite critical in our interview of the association. Invite the three other people who are university people in the school of business in the area who've been quite critical of the existing association and ask those three groups if they can think of a fourth that they want to invite. Keep the total number to twenty-five and invite them in an evening where people can come after work. Convene them and ask them to choose a representative jointly, so that for each category we will in the assessment recommend a technique for representing hard to represent groups. Either that will be a kind of vote among the potential existing representatives or it will be a selection by potential surrogate representatives, who may not even at the moment know that they're a surrogate for generations yet unborn. We need generations yet unborn at this table to be represented at this table. The following three NGOs really do have a very long term perspective and if they would be willing to come in the role of surrogate representative for this category, one of these three or let them choose amongst themselves would be very good.
Each category of stakeholders will have to address exactly these questions. You can use surrogates. You can use coalitional representatives. In some instances it's perfectly clear and so sometimes you get started. However sometimes you think you've got everybody there, you think you've done this the right way, criticism is raised and somebody comes forward and says, "Nobody here is representing me. I don't care what you say and we're a stakeholder." If we miss somebody in the conflict assessment, then we miss somebody, but my general sense is that the procedure I'm describing allows you to handle the diffuse interest problem.
Q: And presumably if the process that you would recommend when that assessment doesn't take place, you wouldn't move forward. And if it does take place but doesn't yield the results that you had hoped for, you also wouldn't move forward?
A: Let's take the two different options you just mentioned. One option is we prepare the assessment, we give it to the convener and the convener says great, let's go. The convener then sends a letter to everybody asking them to do what we describe; to choose representers to come to the first meeting.
First meeting's held; two key groups aren't there. It's our responsibility, that of the neutrals, to go see those people and say, "What the hell happened? We thought you were going to be part of this." And they say, "We changed our mind." We ask, "Well, why didn't you communicate that to anybody? What's your problem?" They respond by saying, "We're not coming if they're coming." We ask, "Well, under what circumstances would it be okay for them to be present?" And they respond, "Well, they can't have any more votes at the table than we do, so if they're coming with three people, we get to come with three people." We respond, "So if they come with one, then you'll come with one?" "Yes, but we heard they were coming with three and we were only getting one and so we're not coming." I said, "Well, would you come to the next meeting if we could address this question at the very beginning of the meeting, and if you weren't satisfied within the first fifteen minutes that the issue is addressed then you could leave. "Well, we have to have the same number of people as they do." "Okay fine, you go talk to the other people and say you have to have a lead representative and your other people can watch, but only one person at the table, otherwise we can't get this other key group to come."
So we may be involved in some remedial efforts if something goes off the track. It's not a question of do it our way or else. If they don't show it's not all over, there's room to explore what's going on. Sometimes people get the wackiest notions in their head and they don't talk to anybody. So they have engaged in self-sealing, you know, self-confirming behavior. So nothing happens and then we have to go talk to them. I remember one mediation I did on the siting of low-level radioactive waste facilities in the state of Maine and there was a campaign to close down all nuclear power plants. It was literally a referendum campaign and the referendum committee was invited to come to the table to talk about where the low level red waste should go from the nuclear power plant in Maine. They said were not coming to that table. We don't want there to be a solution. We want to close down the damn power plant and one of our strongest arguments is there's no place to put the remaining waste. Therefore weren't coming to this thing to help to put all these other people ??? very concerned like you are about the risks of nuclear power, they said that may be but we're not coming to the table.
Okay, fine. We wrote the assessment and everybody said, well, let's go ahead without them, the hell with them. So these guys show up at the meeting and they say well, we're not coming to the table but we're not going to not be at this meeting. Well exactly what does that mean? We're going to watch everything that goes on. Okay, fine so sit around the back over there and if you have a question, raise your hand I'll recognize you, but don't sit at the table, I understand, fine, okay. So then everybody says well they're at every meeting so as far as were concerned they're at the table. And as far as they're concerned there is no way they're participating in this process except that they want to be present at every meeting and they have no hesitations about raising their hand and asking to be recognized. Okay, fine, so you can be inventive to sort of respond to what goes on.
Q: That's a great story. You do work in this country in environmental disputes and other kinds disputes and you do work around the world. So I wonder how different it is to work in a place where the regulatory structure has a lot more holes or is a lot more difficult to enforce, than it might be in a country, and I'm thinking of Mexico or a lot of developing nations where either the government doesn't have the resources to enforce certain regulations or you're dealing with corruption or things like that. How does that change your process or does it?
A: It doesn't. Also, being weary of the sort of one to one correlation that you've made, I mean you go work in Singapore and there is more enforcement then there is anywhere else in the developing world. So it's not that you don't get enforcement in the developing world, it depends which countries were talking about. You throw a gum wrapper on the ground in Singapore and you're going to jail.
Q: Sure ???
A: But in general in the place we've been able to move dispute resolution forward is almost exclusively in the democratic context. There's a legal system that works and people are fed up that the legal system or the political system is not producing any answer. Having no answer is not great for a lot of the parties and we come and describe the process of dispute resolution. Of course, it's very hard to fathom because there's no tradition of public participation, no tradition of public dialogue, no tradition of collaborative problem solving. They want to know what this is, and so we don't ever bring an American model to another place and expect them to do this following the model here.
What we do is we usually have a partner or a partner organization and through them we interpret. We try to come up with something like a convener, something like a conflict assessment, something like a team of neutrals, something like a collaborative process and something like an ad hoc procedure for implementation. But it's very highly tailored to the circumstances and on any of the pieces I described it could look very different from what people are used to seeing in the US. That's why we almost only work with partners and then backstop those partners. That is why the process looks so different and takes different amounts of time. In general if you step back far enough and squint, it'll look like some kind of collaborative problem solving with ad hoc representation of all the stakeholders and something like a neutral or a team of neutrals producing a written document that takes the form of advice or recommendation. But it doesn't substitute for formal governmental decision-making. So in one respect you could say we don't change the model. Yet in another respect, we can say we highly tailor the way the model is developed and applied in each context, and we get the help we need to do that in each place.
Q: So, sort of the underlying problem that I'm thinking of behind that question is a situation where there is some sort of corporate entity that is more willing to bend environmental regulation or pollute at their will, if it is some how cost efficient for them to do so and where the power structure to prevent them from doing that is fairly weak. If they were to get in a collaborative process maybe for public relations purposes or something like that, then I mean it seems like the enforcement mechanisms for keeping them from breaking these regulations is very loose.
A: In the United States, when we work in environmental justice disputes in the Southeast United States and for example, you have a poor community of color taking on a major Fortune 100 corporation that's polluting disproportionately this neighborhood living nearby, and they work out a good neighbor agreement in principle through an ad hoc negotiation of some sort. The neighbors are never convinced that this company is actually going to make the reductions in emissions that they promised or follow through over several years with the investment of mitigation or community compensation that they promised. The fact that there's a written agreement, that everybody had lawyers, that it's the United States, that there was state officials sitting at the table not withstanding, there are inevitable concerns about implementation of these informally negotiated agreements. So what we have learned to do is to construct what we call "Nearly Self Enforcing Agreements". I would say this would be as much on my concern in a brown ??? fields mediation in a northeastern city of the United States as it is in Manila, when we go to Mendenow and were concerned about what their global mining interests are and aren't promising the Muslim minority on that island.
Nearly self-enforcing agreement, what makes an agreement nearly self-enforcing? First, that all the contingencies are spelled out in the agreement, so that everything doesn't come to a complete halt when step one by one side isn't followed precisely by step two from the second side because the condition changed. "Oh and that wasn't spelled so I'm not suppose to do what I said I was going to do," and then everything falls apart. Yet, if I put down even in the unlikely circumstances such and such would happen, that step two still includes this, but if this happens then step two changes to that. The more contingencies you spell out in the agreement, the more likely the agreement is to be self-enforcing. Secondly, if I build monitoring into the agreement so that there's a neutral monitor who calls up the second side and says "It's your turn they did step one". Although you may not think they did step one, but I say they did step one and now it's your turn to do step two. You are building in neutral monitoring to the agreement to make it more likely that it's self-enforcing and most importantly is you ask both sides to put up a stake that they'd sacrifice if they don't do what they promised. So if you say I'm going to build this thing in and I promise you it isn't going to reduce any of your property values, just wait and see. Then they go I don't want you to build it. I'm too worried. No, no, no, it's not going to hurt you. Okay fine, buy me property value insurance for the next ten years. Guarantee me the value of my house goes up equal to all of the property after you build. If not, I sell my house and I dip into this insurance fund. Well no wait a minute you don't really think that you could make me buy that insurance? Well you're telling me that you're never going to have to spend it. You're telling me not to worry, hold me harmless. Well, will I get all my capital that I invested in the policy back at the end of the ten years? Yeah fine with interest. It's in a bank account. But I have no risk then; Nearly Self Enforcing Agreement.
So we have learned in all context not to rely on regulatory enforcement as the sole guarantee of the commitments people make in negotiated agreements. But rather to design nearly self-enforcing agreements, and that's true here and other parts of the world. How you pull it off, what instrumentalities or institutional connections you lean on, is different in every circumstance. But if you take the idea of nearly self-enforcing agreements seriously, it produces a very different product.
Q: I just find it amazing that that could work in a context where the power differential would be so great and the regulatory magnet is so weak ???
A: For example, we go to a poor island community where the national government has decided to give away certain rights to explore for minerals on this island. They didn't bother to consult the population and suddenly some corporation shows up from out of town with giant machinery to strip bare the place, looking for whatever it is. They claim now they have a contract to exploit and the community says, "No way." The community goes to some international body and demands an impact assessment be prepared. The government can't finesse it because it has too many other things at stake with this international body. At that moment, however unequal the power is between that national government, plus its ally in this international corporation, as compared to the island residents, it's maybe unequal, but if the government could do what it wanted there would be no negotiation.
Now there's going to be a negotiation because the government has decided that this group on the island has enough clout with it's ??? alliance, with the international agency, that it has to prepare the assessment and there's going to be a negotiation on whether the assessment was good enough. The assessment was prepared by the international corporation and it's submitted to the international agency. The international agency says to the island residents and their advocates, "Is this okay with you?" And they say, "Well, it doesn't forbid this thing and we don't want this thing." The government says, "That's not what this was about, this was about minimizing adverse environmental impacts. We don't have any environmental assessment law here on this island, but this international agency says this can be done in a way that is way more or less responsive to environmental concerns on the island. We'd like it to be more and if you guys would like to get some independent consultants to review this thing, then maybe you should do that." It's not about just turning this down, it's about producing the equivalent of the enforcement of an environmental impact assessment law in a place where one doesn't exist and as long as there is, there may be asymmetry. But as long as this national government doesn't feel that it can act with impunity and ignore everything, then there's an engagement.
Once there's an engagement, if there's a neutral process facilitating a negotiation, the fact that there are gaps in the regulatory system, the fact that there's political inequalities, I've never seen that, make it impossible to negotiate something. Remember we're trying to produce something better for both sides then no agreement. They should want this agreement to be implemented because the alternative is not as attractive to both sides, that's the point.
Q: If the new agreement alternative for the government ??? Or corporation is to act with impunity then that's what they'll doÃ?Â?Ã?Â?
A: Then why would they have this conversation in the first place?
Q: All right. So just to get an idea of how important and what portion of time the implementation self enforcing part takes in say the whole process, from assessment to intervention to the end of your work there. Very generally, I'm sure it's different in every case, but what percentage would you say is dedicated to self-enforcement creation in the implementation part?
A: In the international world the cases vary so much I'm not sure that the averages are going to be helpful.
Q: The only reason I ask is because I imagine that it is much longer then what most people would think it is.
A: We recently finished the first environmental mediation in Israel. It took us two years to get the parties to the table because it was both Arab and Israeli parties in the midst of the Intifada. Therefore getting them all to the table was extremely complicated. Two years to get them to the table, eight months to do the negotiation. The day the negotiation produced a written agreement everybody was convinced it would be implemented. The government of Israel decided to make a new park in the Galilee in the North. They just didn't tell any of the Arab neighbors living within the bounds of what is now the park. The well was within this compound of houses, which the Arab families have had for centuries or whatever was the focal point for people coming to the park. I mean the park was announced, just nobody told them. So people coming to this well, they came out with their guns and said what are you doing, go away this is my well. Of course they're speaking Arabic and the other people speak Hebrew and it caused all kinds of difficulty.
Ultimately they found out what had gone on. They said sorry "You can't do this," and the Arabs said, "This is our land", and they said, "Oh, you don't have any rights to this property in the first place, it's all illegal, so we don't have to talk to you." So we had the job of bringing together a team to mediate this, a bi-ethnic team. We trained the mediators and the mediators did the mediation. It involved many families of multiple generations on the Arab side, about who could speak for the Arab landholders. It involved the national government, environmental advocacy groups, groups advocating for Muslim Arabs within the country. I mean, endless complexity. We got the agreement and the national park services said, "Okay these are the new terms and we have to change the rules for people using this place." The family owners in the compound had to agree that this park was going forward. I don't think anyone doubts that the agreements' going to go forward, so it took a very long time to get everybody to the table and explain what mediation was. It took a modest amount of time, less then a year, with pretty much weekly interactions to get the agreement, and the implementation was a matter of weeks.
A: The difference is in different stories. I'm just trying to give you an international example where the front end is very, very, time consuming because there's no institutional awareness of the idea of mediating environmental disputes. You have to create the equivalent of the institutional commitment to do it. That's the up front. That's why the up front is so much more time consuming.
Q: Last question, and let me just play devil's advocate on that last example that you had. If I am an Arab resident of that park that was once my land and I say what good is this process, I didn't want this thing to happen, now there's a park on my land. Why should I ever involve myself in this kind of process again?
A: One, you've gotten compensation that you weren't getting before. Two, you've gotten formal agreement that it is your land, this segment within the park. Three, you've gotten guarantees that you can now, you know, both take to the bank and take to future governments in writing that say these our the terms under which people will use the park and the surrounding area but we have to promise not to impede their use of the park and so on and so forth. So I've come out ahead or I wouldn't have made the deal.
Q: Okay, and I presume that in the beginning you would of talked about alternatives to not doing these talks?
Q: One more question?
Q: Obstacles? Major obstacles to your work on a very general level. What are the biggest ones?
A: In the United States the major obstacles to our work are still a lack of awareness on the part of a great many public officials about the notion of ad hoc dialogue with people who are otherwise contending with those agencies. Therefore leading to proposals not decisions. You can't make an informal decision to displace a statutorily guaranteed allocation of responsibility. Yet the whole idea that you'd have this informal dialogue on a track that could lead to an informal understanding that would then become part of the formal decision making, is still a new idea to a very large number of public officials, whose first reaction is you can't take my authority away from me. So one big obstacle is still the lack of awareness on the part of a great many government officials. The second is that there is no government funding to speak of for most of this work. We are constantly having to scramble as neutrals to find a steady source of finances to underwrite the activity. And the third thing is that it just takes a lot of time to do good assessments and produce the right people at the right table.
There is great pressure once people think they know about this; understand it and want it, they just want to get going and we then have to hold them back. First we can't get them to go forward, then we have to hold them back to make sure that the assessment is done right so that the you increase the odds that the thing's going to be successful. So we have obstacles in the form of a lack of awareness at the front end. We have obstacles in terms of finding resources to support this professional mediation effort. We have obstacles which are getting the people in these processes to allow the professionals who know what they're doing, to move forward in an effective fashion because everybody's real anxious now to get it done.
In the international arena, the front-end obstacles are the most formidable. People don't know what the hell this is and they confuse mediation with arbitration. They think someone's coming from outside to tell them what to do and they don't want that. The whole conception of a democratic process seeking to produce an informed consensus takes an immense amount of time and energy to explain it and nobody is covering your costs when you're out there trying to explain that. Then you got to build partner organizations and their capacity, so you can tailor things to fit the cultural and institutional setting. That takes more time and resources before there's even any decision to go forward. The big institutional obstacles and difficulties is getting this stuff off the ground still.
Q: I imagine funding is even more of a problem in the international ??? arena.
A: Not necessarily. There are philanthropic organizations that fund places and particularly if there's an interesting issue in a place. We haven't had trouble finding resources for our work in Asia or in the Middle East or in Latin America. Africa has been very hard.
Q: Do funders and conveners generally coincide?
Q: Are they generally the same party or different parties?
A: Different parties. Philanthropic organizations have been very helpful, very valuable. Sometimes we've been able to work with international agencies on disputes in one country or another. With the federal agencies, it's possible here. With corporations, it's possible here in the United States and sometimes some combination. You have to be a genius about matching up the financing with the dispute. But I mean CBI is one of fifty or twenty consensus building institutes. One of fifty or twenty organizations in the two to five million dollar a year range doing this kind of work. So it's happening, both here and else where, but it's never easy to get the financing requests.
Q: Anything else on a very general level that we should include for people looking to learn about conflict and how to deal with it.
A: There's a lot of research. There's a lot of scholarly work. It's very important to keep practice in touch with the results of research and scholarship and likewise we're never going to train people to do this work if we think this is an academic pursuit. You can train them from books to be mediators, but there has to be a commitment to internships and a period of being a protÃ?Â?Ã?Â©gÃ?Â?Ã?Â© or an apprentice to be able to do this work. Which means all the organizations doing this work have to accept responsibility for making sure there's a next generation of skilled people as part of their normal operations. You can't say there's a lot of degree programs now and that we don't need to worry about this because that's not going to work. We can't say oh well I'm not here in practice, what do I care what they're doing in the University. You got to really keep the ties between theory and practice very, very close.
Q: Yeah, having lived that, I totally support that idea. Thanks Dr. Susskind, I really appreciate it.
A: Sure, sure.