Conflict Resolution and Mediation in Environmental Disputes: Lessons from the US

1. Maa-78.3360 Maankäytönsuunnittelunerikoistyö (2014) - Aalto Course on Negotiation and Dispute Resolution Jonna Kangasoja Aalto University 7.5. and 12.5.2014

2. Background: conflictresearch Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

3. The background – environmentalconflictresolution in the US • Researchvisit to Boston 2012-2013 • Working at CBI, getting to knowtheirwork & people, interviewingpractitioners • Studying (publicpolicy) mediation at Harvard PON and MIT w/Larry Susskind • Ongoingwork on the mechanisms of environmentaldisputeresolution in the US and possiblelessons for Finland. Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

4. In conflicts, partiesinterrupt, disturborobstructeachothers’ actionstowardtheirgoals Interdependence – the knotwillnot open bypullingharder Interpretations of the situationare an essentialelement of conflict Conflict is a messyknot Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

5. Cyclicalcharacter of conflict Goalincompatibility Escalation / resolution Conflictcommunication; expressionshostility

6. Escalation vs. de-escalation

7. Options in conflict? Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

8. Three basicreactions in conflict • Voice: Interaction • Loyalty: silentapproval • Exit: retreat • Fight • Freeze • Flight Hirschmann, A. O. (1972). Exit Voice and Loyalty: Responses to Decline in Firms, Organizations, and States, Harvard University Press. Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

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

10. Why is mediatednegotiationnotpracticed for solvingpublicproblemsin Finland? • ”Neutrals act as surrogatesfor trust” (Peter Adler) Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

11. Cultural / institutionaldifferencesbetween Finland and the United States Finland • Moretrust in government • Public policystrong on ”publicinterest” • Morehomogeneity, morecollectivist culture • Consensualpolitics • Nordiclegal culture of social protection • ”Lowcontext” – lessneedorappreciation for process & communicationskills United States • Lowtrust on government • Private (”special”) interestsinfiltratepublicpolicy • Highly fragmentedsociety, individualism • Divisivepolitics • Common law tradition and legal culture of litigation • Highcontext: need for communicationbetweengroups Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

12. The rootsbehindConsensus Building… A tradition of negotiation and mediationtheory and practice Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

13. Twopersonswant the sameorange – how to solve the conflict? Position: ”I want the orange” Position: ”I want the orange” Interest: Thirsty for orangejuice Interest: Need to garnish adessertdish COMPROMISE Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

14. The idea of principlednegotiation in Getting to Yes Mature idea of Consensus Naive idea of Consensus Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

15. Informal problem-solving • Negotiation • Facilitation • Conciliation • Mediation - assisted negotiation Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

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

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

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

19. The adversarialproblem • We accept an adversarial approach to decisionmakingwhen 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 Susskind, L. (2009) DeliberativeDemocracy and DisputeResolution. Ohio State Journal on DisputeResolution24 (3): 1-12

20. 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 mediatorencouragesparticipants 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, lectureRECONSTRUCTING COMMUNICATIVE PLANNING TKK, Otaniemi, 18.6.2004. Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

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

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

23. Exploring the space of Assisted/ Mediatednegotiation • Public PolicyMediation, a.k.a • Collaboration (collaborativenaturalresource management, collaborative science… ), a.k.a • Consensus Building • Sharedideas • voluntaryprocesses • negotiation (notdeliberation, dialogue, discussion) • Facilitated / mediatedbyneutralthird party • Addressing multi-party publicproblems • involvement of bothpublic and privateparties Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

24. One variant: Public Policy Mediation Aninteractive 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 Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

25. The Mediated Negotiation Process Assess the Potential Implement, Adapt & Learn Design & Decide on Process • convenor • assessor • stakeholders • assessment report Clarify Facts & Options Reach Agreement Seek Joint Gains Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution

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

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

28. The promise of mediatednegotiation "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. Jonna Kangasoja Maa-78.3360 - Aalto Course on Negotiation and Dispute Resolution