Working Paper 93-17, December 6, 1993(1)

By Todd Bryan


(1) This paper is an edited transcript of a talk given by Todd Bryan for the Intractable Conflict/Constructive Confrontation Project on April 10, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: crc@cubldr.colorado.edu.

© 1993. Conflict Resolution Consortium. Do not reprint without permission.

I am a dispute resolution practitioner. I have worked in the past for organizations like the Nature Conservancy and have done environmental regulatory work in trying to protect wetlands and water resources. I currently am working with the Environmental Protection Agency to try and get agencies that don't ordinarily cooperate to cooperate with each other in trying to pool their resources to solve problems.

In terms of talking about some of the problems of intractable conflict, and ways to get beyond those conflicts, I want to identify two things. One is the difference between competition and cooperation. My background is more biological rather than sociological. In a Darwinian sense, we have all evolved a competitive strategy and a cooperative strategy. It takes both of those strategies to solve problems. All animal species basically do the same thing. We tend to think, when we think of survival of the fittest, that all animals are competitive and they evolve competitive strategies. Well, they also evolve cooperative strategies--they have to work together to solve problems. So, both of those strategies are part of our problem-solving nature.

The problem is that now that resources are becoming more finite, we need to evolve and to use more of our cooperative strategies. At this point we tend to be using more of our competitive strategies. Thus, there is the need to push our political systems and our problem-solving systems (legal systems) into the mode of cooperation. I see that we need to do four things to work toward such an evolution.

First, we need to change the decision-making process. For example, typically in local land-use decisions the process involves a board--a City Council, a planning board, or a decision-making board--that was elected to hold the power to make decisions. Also, there is the developer who wants a permit and citizens or activists who have their own agendas and their own needs that need to be met.

I would argue that this set-up is a bad one. I've argued this with city and town council people all over the country. Some of them recognize that this is a bad process, other don't. This is basically an arbitration, conflict resolution kind of procedure, where the board hears the developer's case and hears the citizens' case and makes a decision. Someone wins and someone loses. There's opportunity for compromise, certainly, in this but for the most part this becomes a win/lose situation.

I would change this process by having the board say to the developer and the citizen activists that they have to work out their differences and come before the board only after they have a joint proposal. This type of system fits in with neighborhood organizations so they can help make decisions that affect them.

If they can't agree to a joint proposal, then nothing gets done. I believe such a process would prevent most environmental land-use conflicts at the local, state, and even the federal government level. It could be part of a potential local land-use and public-hearing process.

This type board exists in almost all forms of government--that is really one of the major problems. I want to introduce a process of dialogue between these groups to establish what I would call a public involvement process. There are many ways that this can be done. The idea is to push the decision-making power back down to the people. There's a book called Community and the Politics of Place by Daniel Kemus who is the mayor of Missoula, Montana. In this book, he defines this problem very well. Kemus talks about how governments need to push the decision-making power back to the people and that administrative procedure is part of the problem.

This can be done without having to change legal administrative procedures at the local, state, or federal government level. One of the problems is that officials in these positions don't want to give up that power. So, politicians have to recognize that they are giving up power, but that it is also a good political move for them because they actually don't have to take sides. They must also see that this is a way to solve a problem in a democratic way.

The second move toward a cooperative strategy is intervention. This process needs a facilitator or mediator to guide it--I think that's a very important part of it. A third party will help balance the power between the developer and the citizens' groups. If a board does have the power to control what happens, the board can provide the incentive for a joint proposal to happen. If the board wasn't there the balance of power would not be there. If the Board says, "Don't come back unless you have a resolution," and if the citizens truly don't want the project then the project is dead. A third party facilitator will help this process.

The third part of the cooperative strategy is training in negotiation. In disputes that are not terribly controversial you may not need this step. Many citizens' groups and developers in such situations or other kinds of conflicts don't have any training in negotiation; this slows the process down. Training people in interest-based negotiation is a real important part of this process before they actually get to solving the problem. This way they will be using the same negotiation/conflict resolution skills. If the people in a dispute know how to negotiate with each other, they will get a lot more done.

The fourth and final part of such a strategy involves creating incentives for negotiators. This ties into what Alan was talking about--creating a market for a good project.3 Citizens may not have the incentive to negotiate if the BATNA is not perceived as beneficial. If the developer is serious about the project then the developer must look at what incentives can be offered to get citizens to the table. You could think of that as a bribe, but I don't think it is. If the developer asks, "What do you want? How could we compensate you?" and the citizens' groups say, "We want a park," this is not a bribe, but rather an incentive. The developer has to look at this in only one way---how to make the community indifferent to the project, or, even better, what to do to make them want it? (This assumes that this is a good project; if it is not be a good project, that is a larger public issue.) The citizens may still find that they don't want it, but they have an opportunity to say at this point, "We will take this project if you do X, Y and Z." The developer may say, "That is extortion; it is way out of line." But through such negotiations, the greater public good is being served. If such strategies are done right, communities around the state will then start competing to get the projects because the benefits of receiving them are so great.

To answer the question of distributing responsibility when it comes to poor communities competing for projects under such a system where in essence this is perceived as coming close to distributing bribes, I would propose, rather than looking at it in terms of responsibility, one should really look at the market for a nasty, dirty project. If a poor community is willing to take such a project at a particular price the rest of the state is going to do something for them. The responsibility is coming out of the pockets of people in other places. In a sense it's saying "What are you willing to pay not to take this?" So you are not talking about responsibility, you are talking about truly compensating people for the social costs of receiving the facility.

Even if I do use money as an example, what I'm saying is that the developer must go to the community and do a community-based involvement project to find out what they want. This is the end result of such a cooperative strategy.


3 See CRC Working Paper 93-37 by Allan Wallis.

2 NIMBY stands for "not in my backyard" conflicts.