Denver Construction Mediation Getting Past Go

Posted by Larry Cerrillo on April 02, 2013  /   Posted in Construction Mediation

GETTING PAST GO

Abstract

 Regardless of your endeavor—mining, oil and gas, water, housing, roads, lumbering, raising llamas or raising cane, you most likely cannot get past go until all real and perceived stakeholders are happy. You may have acquired all the requisite permits, licenses and bonds, but the local municipal or county regulator bolstered by NIMBY minions can cause you interminable and costly delays. One of the cards you can play is the ADR or Alternative Dispute Resolution card; preferably viewed as collaborative problem solving. Employing one or more of ADR tools early-on in your proposed project will save considerable time and money as you approach GO. Most applicable of these tools are facilitated collaborative processes and mediation. For those familiar with “partnering”, collaborative processes may be viewed as similar.

 

The Why

Before talking about collaborative processes, I believe it is helpful to understand why we consider using these processes. There has always been a gap between science and the public perception of risks and hazards. As a result, what we normally see when we attempt to have a community meeting is anger and conflict. Anger we are told is a normal human emotion that can vary from mild irritation –someone cuts in front of you at the checkout line—to violent rage such as we read about  regarding “road rage” or “going postal”. Anger is considered a secondary emotion because something usually precedes anger. It may be called a trigger, such as fear or fear connected with need. Consider your reaction when your teenager does not return home at the agreed upon hour. You pace the floor, check your watch for the umpteenth time, drink your fourth cup of coffee, etc. When the teenager finally does arrive home, what is your reaction? Chances are you shout, rant and rave about being irresponsible, carry-on about privileges that will be denied, perhaps say things you regret the next morning. What really occurred was your fear that something had happened and your need to know they were ok. Psychologists tell us that anger, being an emotion, is something we can control. Unfortunately, we often do not do so.

 

The What

Conflict, often confused with anger, is something altogether different. Conflict is defined as “…an expressed struggle between at least two interdependent parties who perceive incompatible goals, scarce resources, and interference from others in achieving their goals.” (Wilmot & Hocker, 2001). There are a few operative words in this definition. They are interdependent, perceive and incompatible. Unless there is a dependency between two or more parties, e.g. spouses, or, co-workers on the same project, there really is not a conflict per se. You may have a disagreement with a governmental agency with respect to some issue that prevents you from getting a permit, but you are not in “conflict” with the general public that simply opposes your project. This does not mean they have no influence on whether you get to proceed, and that you do not need to deal with them. It may seem a matter of semantics as to how these confrontations are labeled, but theoretically you are not in conflict but simply in disagreement as to how something is done or not. (For purposes of this paper, I will use the word conflict to denote any differences between parties.) We often hear that perception is reality. This is no where more true than in situations where a risk or hazard is perceived to exist in association with some activity. All the scientific data and professional opinions will not change people’s perception. As a result, what is perceived is often the root of conflict. Incompatible is also at the root of many conflicts. Minerals mined are needed in the products desired by most people. How those minerals get to be incorporated in those products is incompatible with those desires.

 

The Cause

            Another aspect that needs some clarification is the question of what causes conflict. It may be enough to say interdependence, perception and incompatible goals; but is it? Theories abound as to the causes of conflict. I attribute two factors that are interrelated; cultural differences and generational differences. Cultural differences are more prevalent than we often acknowledge. Cultural differences are usually known and acknowledged when doing a project in a foreign country, but rarely acknowledged in the US. In areas of the US where minerals are known to exist, but have yet to be mined there are a number of cultural differences. Historically the land may have been used for ranching, and now is surrounded or partially owned by city dwellers that recently purchased their piece of paradise. Throw environmentalist (although we should probably qualify that term) recreationalist, true ranchers, merchants, regulators, and personnel from various agencies into the mix and we have a cultural cauldron. (Actually, this same mix occurs in foreign lands as well).

Generational differences occur within all of these cultural pots. Demographers break us down by generations into traditionalists, boomers, xers, millenials, etc. (Lancaster & Stillman, 2002). These generational differences mixed with the cultural differences further feed the conflict cauldron. Christian Daughton (2004) posits that “Communities with a high social/cultural diversity face the greatest challenges in agreeing on what constitutes hazard.”

 

The Solution

            So what is the solution to initiating and sustaining a project with minimal conflict? My biased answer is to initiate a collaborative process early-on. Most folks do not care what you are about until they feel they have been heard. Unfortunately, all too often so-called community meetings consist of the suits getting upfront and talking about how great and wonderful their project is and how the parade of experts have done everything humanly possible to insure an environmentally safe and efficient operation. The floor is then opened for attendees to express their concerns in three minutes or less. There is little to no dialogue, no exchange of ideas and thus no buy-in by the public. In most instances they go away madder than when they arrived. Daughton (2004) makes several good points when writing about communication with the public regarding water reuse and groundwater recharge. A few of these are worth noting as I believe they apply to most projects, and beg for the use of a collaborative process.

  • “…advancement of knowledge regarding contentious issues laced with perceived risk often will not assuage the concerns of the public –but exacerbate their concerns.”
  • “Regardless of how sound the science may be, its influence on perception of risk may be minimal.”
  • “In large part, it is irrelevant that perceptions do not necessarily correlate with reality.”

 

The Processes

Ok, so what about these collaborative processes? Facilitated collaborative process sessions enable you to identify and deal with NIMBYs and other concerned citizens early in your planning. They are processes that enable all stakeholders to vent and have a part in the project. It enables you, the project proponent, to know what issues may become road blocks that you can prepare for in advance. Most roadblock issues are most always those unanticipated.

 

Facilitated processes are conducted by a third party neutral or neutrals depending upon the needs of issues being addressed. Facilitated processes are collaborative processes that have some commonalities, namely that all stakeholders and persons with an interest be involved in the process, and that there is commitment and support from all involved. For this reason, facilitated processes are generally utilized when major projects are being planned that require buy-in by a number of different governmental agencies across jurisdictional, and geographic boundaries. In the mix are the general public and the many special interests groups. Collaborative processes have been championed by such organizations as the National Policy Consensus Center, the US Army Corps of Engineers (USACE) and UNESCO. Three facilitated processes are briefly described here as examples of what can be employed. These are collaborative problem solving, shared vision, and future search.

 

Collaborative Problem Solving

Collaborative problem solving (CPS) was promoted by the National Policy Consensus Center (NPCC) at a colloquium in 2002 specifically to address watershed management issues (NPCC, 2002). They noted that there are some 3000 multi-stakeholder watershed groups in the US. Most of these groups were formed to address some legal, regulatory or policy gridlock within the watershed. There are numerous reasons for consideration of using CPS. These include reduction in costs, building goodwill, time, and establishment of future working relationships. Additionally, CPS can help leverage scarce resources, promote innovation, integrate economic, environmental, and community objectives that produce benefits to all parties involved. CPS has been used in a variety of complex issues associated with water resources. These include agricultural runoff and development in Montana’s Big Spring Creek, fire protection issues in Santa Fe, NM, habitat protection in Oregon, flood flow issues in Arlington, Texas, and the usual plethora of issues typically associated with divergent needs and interests within a watershed.

 

Shared Vision Planning

Perhaps one of the more involved collaborative processes is the shared vision planning process (SVP). It is noteworthy in that it was implemented within the Niger River Basin of Africa (Andersen, Dione, Holder, Olivry, 2005). A vision for sustainable management was able to be realized among nine countries within the Basin. The geographic, geologic, topographic, climatic, and political differences could not be more complex. These nations were able to come together to forge a plan and an on-going Sustainable Development Action Program (SDAP). Naturally its continued success will depend upon the commitment of the heads of state and the various stakeholders within these countries.

The SVP process has also been addressed by the USACE. They have proposed the following seven steps to the process:

1. Team development

2. Planning objectives

3. Defining the status quo/baseline conditions

4. Shared vision models

5. Performance measures

6. Formulating alternatives, and

7.  Evaluating and selecting alternatives.

 

It should be recognized that even though a seven step approach has been suggested by USACE, there is no cookie-cutter process to SVP. Like any process involving divergent interests, a plan will evolve based upon the assemblage of parties involved.

 

Future Search Conference

Future search conference (FSC) is also a planning process as well as a problem solving process. It is a collaborative planning method that takes a “whole system” approach. As with other collaborative processes, it requires including everyone needed to make change happen. There is most definitely a need for commitment upon the part of stakeholders to achieve measureable goals. Typically, an FSC can be accomplished within two and a half days following one or more planning meetings. The planning meeting or meetings consist of a steering committee of key people that can get everyone else to a meeting. This group may be the sponsors of the conference or be knowledgeable with identifying and bringing together the diverse entities needed. The objective of FSC is to assist diverse groups of stakeholders to find common ground.

FSC was successfully utilized to resolve issues with regard to water quality on the Upper Colorado River Basin (Weisbord, et al. 1992). In 1990, a water quality plan that could be periodically updated was required by the state of Colorado. After meetings with the regional planning agency responsible for a state water quality plan, 48 stakeholders were assembled in Winter Park, CO to dialogue, discover, and learn to find common ground.

 

It must be emphasized that in all the various processes for problem solving, the facilitator’s role is primarily to keep the group whole and working together. The facilitator is not a decision maker. Individuals or groups in conflict typically come to mediation or a facilitated meeting primarily to check where their adversary is coming from, and to prepare their positions. Many others view these processes as “touchy-feely” or just a waste of time. Facilitators must therefore keep parties on task, not to fix problems, but to create a safe environment where all can realize their differences and still integrate their capabilities for a common purpose.

 

Mediation is a process often incorporated in agreements made as a result of one of the facilitated processes. It allows disputing entities a means to resolve their concerns in a safe and controlled environment. Conflict is inevitable, litigation is not. You can avoid the high costs and delays of litigation and resulting costs and delays to your project by engaging in mediated settlements. These can be as binding as a litigated settlement, and are often transforming in regard to the subsequent working relationships. The time and costs of using these tools will be considerably less than the unanticipated costs of delays precipitated by an irate citizen or group of citizens with respect to an activity you thought was of little consequence. As an old commercial went, “pay now or pay later”.

 

 

REFERENCES

Andersen, Inger, et al, (2005). The Niger Basin. A vision for   sustainable management.     The World Bank, Washington, DC.

 

Daughton, C. G. (2004). Ground Water Recharge and Chemical Contaminants: Challenges in Communicating the Connections and Collisions of Two Disparate Worlds. Ground Water Monitoring & Remediation. NGWA, v.24, No. 2.

 

Lancaster, L. C. & Stillman, D. (2002). When Generations Collide. Harper Collins Publishers, Inc., NY, NY.

 

National Policy Consensus Center. (2002). Watershed Solutions. Collaborative Problem Solving for States and Communities. Portland State University.

 

Weisbord, M. R., et al, (1992). Discovering Common Ground. How future search conferences bring people together to achieve break through innovation, empowerment, shared vision, and collaborative action. Berrett-Kochler Publishers, San Francisco.

 

Wilmot, W.W. & Hocker, J. L. (2001). Interpersonal Conflict. McGraw Hill. Sixth Edition.

 

 

 

 

 

 

 

 

 


[a] Larry is a consulting hydrogeologist that included mediation/facilitation in his practice in 1998. He has numerous certificates of training that include environmental and public policy disputes, land policy disputes, and advanced study in alternative dispute resolution. He can be reached at 303-674-6484 or at cerrillo1@mindspring.com.

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