Jones, Robert M.

English

Research Papers in Economics

COLLABORATIVE  DISPUTE  RESOLUTION
PROCESSES
Robert M. Jones
Florida  Growth Management Conflict Resolution Consortium
Florida  State University
People are generally better persuaded by the reasons which they have
themselves discovered than by those which have come into the minds of
others.
-Blaine  Pascal
Importance of Collaborative  Dispute  Resolution
Public Problems in a Democratic  Society
In his remarks  at  the  1992  National  Public  Policy Education  Con-
ference,  Michael  Briand  from  the  Kettering  Foundation  discussed
public  problems  in a  democratic  society.  He  said  there  is  no single
standard,  rather multiple  perspectives  on what  is  the "public  inter-
est."
Shared Power Context. As described by John Bryson and Barbara
Crosby,  no one institution or organization  is in a position to find and
implement  solutions to the problems that confront us as a society-in
other words,  no  one is  in charge!  Their book, Leadership  for the
Common Good: Tackling Public Problems in  a Shared Power World,
sets forth how to think and act more effectively  in a shared power
context. Dimensions of a shared power context include:
* Increased complexity,  uncertainty,  turbulence and risk.
* Fragmentation,  division and separation.
* Individual versus society-competition  versus cooperation.
* Declining capacity  to  manage  and  to  govern  changing role  of
elected leaders.
* Solutions  that  can be  implemented  only  when  a  critical  consen-
sus is created and sustained.
Public Decision-Making Trends. In their  work on  consensual  ap-
proaches  to  resolving public  disputes,  Lawrence  Susskind  and
Jeffrey  Cruikshank suggest  that this country's  public policy  process
is in the throes of decision-making paralysis  when it comes  to taking
action on important and controversial  public issues. Another deci-
sion-making trend is new mandates for public participation in 70s/80s
(with tools for this evolving).
93Emerging Collaborative Leadership Models.  An effective  public
leader will realize that the solution does not lie outside the public but
within it. What should be done becomes  clear only as members  of
the  community  deliberate  together.  Effective  public  leaders  do  not
assume the  problem  is already  defined,  but  solicit  a variety  of per-
spectives and seek to integrate them into a new genuine  community
perspective  on  the problem.  A  community  leader  is one  who  helps
the community  find its voice and set its direction.
Goal of Public Policy  Education
The goal of public policy education  is to increase understanding  of
public issues and policy,  as outlined by Barrows and Danielson.
Collaborative  Dispute Resolution Efforts. Over the past decade,
dispute resolution processes  such as mediation, negotiated rule mak-
ing and policy  dialogues have  become more common features  upon
the  public  policy  landscape  at every  level  of government.  These
processes,  which are sometimes referred to by catch-all titles such as
Alternative  Dispute  Resolution  (ADR)  or  Collaborative  Problem
Solving (CPS), have been most commonly used on an ad hoc basis to
resolve  conflicts  that arise during policymaking  or policy implemen-
tation.  These  are  structured  public  learning  processes  achieved
through  face-to-face  engagement  in defining  problem(s);  generating
alternative ways to solve the problem(s);  and selecting  a solution that
addresses  the  interests,  needs  and  values  of the  different
stakeholders.
Common Roles. Collaborative  dispute resolution  efforts  and public
policy education share a focus on the role of convener,  promoter of a
sound process and neutral process manager.
Collaborative  Dispute  Resolution Processes
Definition
The traditional use of litigation and administrative and electoral
procedures  for dispute  resolution  has not always produced  fair and
wise  solutions.  Litigation can be time consuming  and expensive.  Di-
rect participation,  for the most part,  is discouraged  and communica-
tions become  distorted.  Adversarial  relationships  make  compliance
and implementation problematic.  Although  a winner is declared and
a decision is rendered,  the dispute may  not be resolved and the los-
ing interests may redirect their efforts to block decisions.
Collaborative  dispute  resolution  is a  voluntary  process  that in-
volves  many interests  in a facilitated-or  mediated-face-to-face  ne-
gotiation.  The impartial facilitator,  often selected by the participants,
assists  in defining  issues,  exploring the  parties'  mutual interests and
those that divide them, generating  and assessing options,  and reach-
94Figure 1. Stages  of Consensus-Building  Process.
GETTING STARTED  JOINT  ANALYSIS  MAKING  DECISIONS  DOING IT
See an  issue  Mutual  education  Create criteria  Present for ratification
or  adoption
Identify  the parties  Create joint  knowl-  Apply criteria  Prepare for  renegotia-
edge  tion
Make  initial contacts  Jointly  define  issues  Make  preliminary  choices  Monitor and evaluate
Think it through  Jointly define  prob-  Test  Celebrate!!
lems
Develop  a process  Generate  visions  and  Package
options
Ground  rules
Logistics  Develop  implementation  plan
Timing
PROCESS  THE  PROBLEM  THE SOLUTION  PRODUCT
~  AGREEMENT  ON
ing an acceptable  solution.  The  agreements  are reached by consen-
sus, not by majority decision (Figure 1).  These processes supplement
conventional  dispute resolution forums,  and they are most often initi-
ated when the normal  decision-making  process has proven  ineffec-
tive.  Building consensus  through negotiation  may be motivated by a
desire to advance  a shared  vision through an exchange  of informa-
tion or by a need to resolve conflict to produce  a joint agreement,  or
both.
State Dispute Resolution  Programs
At least sixteen states have created,  or are in the process of creat-
ing, statewide  offices of dispute resolution or similar entities.  The
purpose  of these offices is to provide and promote the use of new
dispute resolution  and collaborative  decision-making techniques  and
to help states cooperatively  manage,  resolve and prevent conflicts
that  occur  within  government  and between  government  and  the
public.
These  state dispute resolution  programs share  a broad mission of
bringing new  tools  and approaches  for  difficult public  policy  dis-
putes. Florida is one example,  with state centers focused on the pub-
lic  policy area and on the courts.
Florida's CRC
The  Florida Growth  Management  Conflict  Resolution  Consortium
(CRC)  brings Floridians  together  to  build collaborative  solutions for
95growth  management  problems  through  the  use  of mediation  and
other conflict resolution tools.
Based in Florida's state  university system, the CRC serves  as  a
publicly-funded,  neutral resource  for public  and private participants
in  land use,  environmental  and  growth-related  conflicts.  The  CRC
offers direct assistance  and mediator referral in specific  conflicts,
help in designing new approaches  to handle  recurring  growth man-
agement problems and facilitation  of policy development.  It provides
training and public education  on using collaborative approaches  and
it sponsors documentation  and evaluation  of these efforts.
Growth Management Context. Growth  management  in Florida is  a
legislatively-created  system  that regulates  the amount,  timing,  loca-
tion  and character  of development  through comprehensive  planning
on the local,  regional and state level.  It is a decision-making process
that seeks  an acceptable  equilibrium between  development  and en-
vironmental  conservation;  between  the demands  for public  services
generated  by growth and by the supply of revenues to  pay for those
demands;  and between progress and equity.  Reaching and main-
taining this  equilibrium  is an inherently  conflictual  activity that calls
for new collaborative  tools and approaches.
A consensus has emerged within Florida's growth management
community on the value and need for better approaches to resolving
growth-related  conflicts.  Mediation  and facilitation have a special
role  to  play in  the implementation  of comprehensive  plans,  in inter-
governmental  coordination,  and  in resolving  environmental  and so-
cial problems brought on by rapid growth.  In the past, the growth
management  system  directed  such conflict to adversarial  last-resort
forums  such as  administrative  appeals,  the courts or the  legislature
to declare  winners and  losers.  In contrast,  the CRC  is  dedicated  to
helping  parties  focus  on reconciling  their interests  through joint
problem  solving  negotiations,  often assisted  by  a mediator  or  facili-
tator.
Program Orientation.  The  CRC  serves as a  catalyst  for helping
build a better system for meeting the growing demand  for collab-
orative  services  with an adequate  supply  of highly qualified  and
competent  mediators  and facilitators.  In  light  of lessons  from  other
contexts,  the  CRC  does not see the  development  of a public  sector
mediator corps as the long-term solution to handling increased  use of
collaborative  approaches.  However,  in  the future,  many  profes-
sionals within the public sector will be called upon to assist in design-
ing  and facilitating  collaborative  group  processes.  Both strengthen-
ing the market  for  mediator/facilitator  services  and developing
greater internal collaborative  skills  and  resources  are critical  to the
ultimate  success  of this  experiment.  During  the  first  five  years,  the
CRC  has focused  on demonstrating  collaborative  dispute  resolution
approaches.  This has led  to greater use and institutionalization  of
96these  processes.  Over  the next five years the  CRC will focus  on the
supply  side by improving  the quality  of mediation  services,  continu-
ing to demonstrate consensus  policy development and helping  de-
sign appropriate  systems for handling recurring disputes.
Casework. Through its involvement in growth management con-
flicts,  the CRC seeks to demonstrate better ways for Floridians  to
build  consensus  on growth  management  issues,  solve problems and
resolve  conflict.  Its goals include:  resolving or promoting  the resolu-
tion  of  growth  management  disputes  through  collaborative  dispute
resolution methods;  designing and promoting implementation  of col-
laborative dispute resolution in recurring conflicts;  and promoting
consensus-based  policy  development,  including  legislation,  agency
rules and local planning  and regulation.  The CRC manages  a refer-
ral listing of mediators and facilitators.
Education and Training. The CRC's education efforts  seek to fun-
damentally  change the perception  of growth  management  as an  in-
herently  combative  and  adversarial  process  to one  that  seeks  to
solve problems and equitably balance  compelling  claims through col-
laborative  dispute resolution  processes.  Its  goals include:  informing
decision makers about the nature,  value and  appropriate  use  of col-
laborative  dispute  resolution;  training  professionals  representing
public  and  private  interests  in  growth  management  conflicts  in  the
skills necessary  to effectively participate in collaborative  dispute res-
olution;  enhancing the practice  standards of professional mediators,
facilitators  and  agency  staff  serving  as  neutral  intervenors  through
training.
Examples of Applications. Within  Florida's  growth  management
context,  CRC  has  assisted  in several  ways.  As  an  institutional
broker,  the  CRC  is a university-based  service  center promoting  the
use of collaborative  approaches  to  solving  problems.  In  its  service,
education and research/role,  it is  involved with research and curric-
ulum efforts  in urban planning,  public administration,  law and com-
munications.  CRC  has facilitated:  large group consensus  building on
policy  (ELMS  III);  community  problem-solving  and collaborative
planning,  by  convening  a dialogue  on balancing  economic  develop-
ment with conservation  (South Walton County);  and mediation  of
planning and environmental  disputes.
Collaborative  Dispute Resolution  Opportunities
Collaborative  dispute  resolution  processes  can  be  used  in  exten-
sion programs,  or other direct service,  to facilitate visioning proc-
esses  for  local communities  or problem  solving on  policy problems.
In the area of research, these processes can facilitate visioning proc-
esses for  local communities  or problem  solving on  policy problems.
In the area of research,  these processes  can facilitate  research eval-
uation and  documentation,  teaching  and student  involvement in  ac-
97tive learning.  The  President's  Commission  on  Sustainable  Develop-
ment also  presents new opportunities  in helping  build a sustainable
development  dialogue.
Collaborative  Dispute Resolution  Resources
National Institute for Dispute Resolution (NIDR),  1901 L Street,
N.W.,  Washington,  DC 20036  - (202)466-4764.  Contact:  Thomas Fee.
This private,  nonprofit institute  is the only grantmaker  in the United
States  devoted  exclusively  to conflict  resolution.  It offers  grants,
technical assistance  and information  in several program areas,  in-
cluding  public policy,  the  courts,  higher and professional  education,
community justice  and  innovation.  NIDR's  higher education  pro-
gram has  produced  a  large  inventory  of teaching  materials.  Pre-
pared for use in law schools and graduate  schools  of business,  plan-
ning,  public administration  and  public  policy,  some  modules  are
generic and may be modified for use in other  disciplines.  NIDR also
provides support for public policy  dispute resolution,  having helped
create  state dispute resolution programs in sixteen states.
National Council of State Dispute Resolution Offices.  Created  in
June,  1992,  at a NIDR-sponsored  leadership  summit in Columbus,
Ohio,  this council serves as a forum  for information exchange  and
technical  support  among the  staffs  of state  offices  of dispute  resolu-
tion  that promote  and  provide  dispute  resolution  services  within
state  government.  Although  not  all  of the  offices  are located  within
state agencies,  each has established  a clear relationship with at least
one  branch of state government.  The  relationship  between  state
governments  and  the  offices  distinguishes  them  from other  private
or nonprofit  dispute  resolution  providers.  The link between  dispute
resolution  and public policy can be very beneficial.  The offices are  a
proven,  effective way of institutionalizing this link.
University Centers. Fourteen theory centers/consortiums,  located
at major public and private universities  around the country,  were in-
itially  supported by the Hewlett Foundation.
Program  for Community Problem Solving,  1301  Pennsylvania  Ave-
nue,  N.W.,  Suite  600,  Washington,  DC 20004 - (202)  626-3183.  Con-
tact:  Bill  Potapchuk.  Housed  at the National  League  of Cities,  this
program provides  information  and assistance  for community  collab-
orations.
National Civic League,  1445 Market  Street, Suite 300,  Denver,  CO
80202-  1728  - 303-571-4343.  This league  also has  been a leader  in
promoting collaborative  efforts at the local level.
Conclusion
In conclusion,  consensus-building  approaches  are  not  replace-
ments  for the traditional methods  of resolving disputes.  They are
98creative  supplements  that engage  the  affected  interests  within  a
community  in  a legitimate  public  policy debate.  These  are not win-
ner-take-all  situations, but consensus-based  negotiations in which
the  agreements  must satisfy  all  participants'  interests.  These  ap-
proaches  have the potential  for broadening  the  options available  to
those seeking an acceptable balance between conflicting goals.
When dispute resolution  is appropriately  used  it can be a very  ef-
fective tool for addressing tough problems and crafting policy. Al-
though dispute  resolution is  by no  means  a panacea,  these  tech-
niques can result  in significant  savings  in time,  expense and rela-
tionships.  Even when dispute  resolution  is used and  full agreement
is not reached, the issues  demanding resolution  are usually more
clearly understood and outlined and the relationship  between the
parties  has  usually  improved,  thus  easing resolution through  an-
other,  more traditional channel.
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Building Consensus on Development Issues.&quot; Intergovernmental Perspective,

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Leadership for the Common Good: Tackling Public Problems in a Shared Power World.

Public Policy Education: Key Concepts and Methods.

To Inform Their Discretion: Policy Education and Democratic Politics,&quot; Increasing Understanding

COLLABORATIVE DISPUTE RESOLUTION PROCESSES

COLLABORATIVE DISPUTE RESOLUTION PROCESSES

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