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Using Facilitated Negotiation to Avoid Claims and Litigation

Using Facilitated Negotiation to Avoid Claims and Litigation. Robert A. Shearer, J. D. Jeanne D. Maes, Ph.D. University of South Alabama and JR Consulting LLC Susan Thibodeaux, MBA, CFCM IAP Worldwide Services April 24, 2007 ADR Track No. WC07-211. Dispute Management Curve. War. Appeals.

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Using Facilitated Negotiation to Avoid Claims and Litigation

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  1. Using Facilitated Negotiation toAvoid Claims and Litigation Robert A. Shearer, J. D. Jeanne D. Maes, Ph.D. University of South Alabama and JR Consulting LLC Susan Thibodeaux, MBA, CFCM IAP Worldwide Services April 24, 2007 ADR Track No. WC07-211

  2. Dispute Management Curve War Appeals Time and Expense Litigation Partnering Process Arbitration Mediation Facilitated Negotiation Loss of Control/Damage to Relationship Negotiation Prevention

  3. The Process . . . • Neutral facilitator uses mediation & partnering strategies to help diverse stakeholders achieve collaborative solutions to issues or problems.

  4. Desired Outcomes . . . • “Partnering” agreements • Policies & procedures • Rules, regulations, enforcement • Licensing & permitting • HR management • Inter-agency cooperation • Time & cost efficiencies • Public-private cooperation

  5. Applications . . . Complex public policy issues: • Growth Management • Environmental • Water Management • Transportation • Zoning • Development • Labor relations • Health care issues • Insurance issues

  6. Why Collaborate? • Draw on collective wisdom • Secure buy-in

  7. Collaboration is used to….. • Build cooperative relationships between/among diverse groups to achieve specific business or other objectives. • Blend key stakeholders into an effective, problem-solving team with common goals and a commitment to resolving issues expeditiously and seeking mutually beneficial outcomes.

  8. Key Elements • Commitment • Shared Vision • Common Goals • Shared Risks/Rewards • Cooperation • Group Decision-Making • Open Communications • Win-Win Problem solving • Principled Negotiation • Synergy

  9. Two Steps to Synergy • Willing to search for solutions better than what has been proposed? • Agree that no one can make his/her point until he/she has restated the other person’s point to his/her satisfaction? • Source: Covey. Principles of Leadership: From Effectiveness to Greatness

  10. Role of Facilitator/Mediator • Help define issues and clarify objectives • Help identify the parties who need to participate • Educate participants about collaboration process • Work with the group to establish “ground rules” • Assist participants in setting an agenda • Help make “physical” arrangements for meetings

  11. Structuring the Facilitation • Welcome and Introductions • Team building exercise • Develop vision • Present and synthesize common interests • Identify critical issues • Develop action plans to address critical issues • Present and discuss action plans • Develop an issue resolution process • Develop action plan to monitor and wrap-up

  12. Identifying Common Interests • What are your group’s interests and expectations on this topic? • What are your expectations of the other stakeholder groups?

  13. Identifying Issues and Challenges • From your group’s perspective, list the five highest priority issues, challenges, problems, etc. on this topic.

  14. Action Planning Process • State the issues/problem in clear, concise terms. • Analyze the issue/problem • Brainstorm for options • Select a solution & action plan • What needs to be done • Who will be responsible? • What is the time frame? • Where will the plan be implemented? • How will results be measured? • Other?

  15. Principled Negotiation • Separate the people from the problem • Focus on interests, not positions • Seek creative options for mutual gain • Insist on objective criteria

  16. Dreading the Dredge • In Santa Coasta, USA, the local economy depends heavily upon the military, tourism and commercial fishing. • On February 1, 2007, US Navy (USN) contracted with the U.S. Army Corps of Engineers (USACE) to oversee a dredging project in an environmentally sensitive area with the goal of widening and deepening a channel for Navy vessels; cruise ships and commercial fishing boats will also benefit.

  17. Dreading the Dredge (cont) • Total contract value = $5 million. • Navy funds 80% • Local government sponsors fund 20% • February 10, 2007, USACE has awarded a contract to DDF (Dig Deep and Fast, Inc.) dredging company. Contract calls for a 120-day project completion schedule.

  18. Dreading the Dredge (cont) • Environmental impacts of dredging area • Contains number of coral reefs and endangered species • Schedule overlaps nesting seasons for many endangered species • A few years earlier, different dredging contractor caused reef and wildlife damage • Much larger equipment and fewer monitoring systems used

  19. Dreading the Dredge (cont) • State and local environmental regulators concerns • not enough protection for ecology in the contract • Threaten to delay project if additional safeguards are not implemented

  20. Dreading the Dredge (cont) • Commercial fishing interests complain project is too long and will disrupt their ability to work in key areas during dredging • Contractor complains of unreasonable delay in issuing permits to begin work (primarily due to political pressure of environmentalists) • Two week window to begin work; otherwise, hurricane season will become serious factor.

  21. Dreading the Dredge (cont) • USACE’s position – • Safeguards are adequate • Additional measures would exceed amount of funding • USACE Contracting officer has told the Contractor that notice to proceed begins February 28, 2007 (with official hurricane season beginning on June 1)

  22. Dreading the Dredge (cont) • The Navy and local sponsors want the project completed within the 120-day schedule in order to • Meet military and commercial vessel commitments • Avoid an increase of funding

  23. Stakeholders include: • US Navy • USACE (Corps) • City of Santa Coasta and local sponsors • Environmental regulatory agencies • Commercial fishermen

  24. Group Assignments • 1. What are the goals of the various members of your group? • 2. What are the particular concerns and issues of the various members of your group? • 3. If the stakeholders do not reach consensus, what is the likely outcome? • 4. What is your group’s proposal for an interest-based resolution?

  25. Conclusion • What kinds of issues might be addressed by these processes? • Do you have any specific issues that you’d like to discuss or have ideas that you’d like to share?

  26. Contact Information • Jeanne D. Maes, Professor Robert A. Shearer, Professor Mitchell College of Business University of South Alabama Mobile, AL 36688 251/460-6737 251/460-7947 jmaes@usouthal.edu rshearer@usouthal.edu

  27. Contact Information Susan B. Thibodeaux Asst. General Mgr/ Contract Adm Mgr Regional Base Operations Support Contract I IAP-HILL LLC (IAP World Services Inc) P.O. Box 77 NAS Jacksonville, FL 32212O (904) 542-3356F; (904) 542-4164 Email thibodeauxsb@iaphill.com

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