Co-Director of the Public Disputes Program, Inter-University Program on Negotiation at Harvard Law School
Interviewed by Julian Portilla, 2003
This rough transcript provides a text alternative to audio. We apologize for occasional errors and unintelligible sections (which are marked with ???).
A: Part of what I consider to be my contribution to the practice of public dispute resolution was the invention of the technique of conflict assessment. The formalization of tools of how to do it and the sort of production of good prototypes for what that should look like. At this stage, I feel we know what it takes to get the right parties to the table. It takes the preparation of a conflict assessment by a neutral party. That means that some convener needs to identify a neutral and commission them to give a conflict assessment. The neutral then needs to interview one on one, not for attribution, the obvious player suggested by the convener, trying to get at what their issues are, what their concerns are, how they scope the problem, what information they wished they had, who they think should be at the table and then that set of actors suggests a second circle of actors who weren't necessarily obvious to the convener. Then another round of interview needs to be done the same way. Then it needs to be public that this process of assessment is going on, so a third circle of people can step forward.
By the time you're done with those three circles of interviews you should have the neutral maps conflict. The map includes an explicit formulation of who are the major stakeholders, who might represent them, what ought the agenda to be, what should the ground rules be given that agenda, what should the timetable be and what should the work plan be. A draft of that synthesis goes to everybody interviewed and the question is if that is what is proposed would you play? Their reaction to that allows the neutral to have a very clear sense that can be then given in written form to the convener of who needs to be at the table. Everyone who gets to the table has had a hand in deciding who needs to be at the table and what's going to happen when they get there. Absent of that kind of assessment, in my view, it is almost impossible to get right who should be at the table.
Q: And that sort of public awareness of the process, how does that go about? I mean through newspapers, through newsletters? How do you get the word out that this is happening?
A: Well, typically the convener makes public the fact that their hiring an assessor since it's use public funds and in the public disputes world can't be secret anyway. So that whatever way a decision by governmental body is publicized they publicize the hiring of the convener and the neutral. The neutral then prepares a press release with the concurrence of the convener and the neutral puts out the press release the way they put out any press release, at which point the press responds or doesn't respond. The interviews stimulate dialogue between the people interviewed and the constituencies they represent and that gets sort of word moving through informal channels. The document produced, the thing I am calling an assessment, the assessment is both a process and a product. The product I am calling an assessment is a public document. Once you distribute it to seventy, eighty, ninety people that you have interviewed, it's out there. So you publicize the process, but you also publicize the assessment as a product.
Q: So the process and product of assessment, is that often enough to get very, very untrusting parties to the table or is there more than these to have to happen after that?
A: If in the dialogue between the neutral and the parties, one party says no way I'm participating in this and the neutral says so your assessment of your next best option is as follows and the party says yeah I get a pretty good option away from the table. Which could be either going to court or relying on my friends in the political arena. And the neutral says, "What would it take to get you to the table?" and the party says, "There's nothing, I don't see any way anyone's going to offer me something at the table with certainty better than what I think my options are by staying clear of this." The neutral reports that in this written document called an assessment, which may include a recommendation from the neutral don't go forward, "You cant get a key party to the table." Or it might be, "I think you should go forward but this party isn't going to be there representing this constituency and you may go the following route to try to make sure the same stakeholder group is represented."
Following the production of that report, I don't think the neutral has any leverage to try to get someone to come to the table. One of the other parties seeing the report might say, "Oh this is ridiculous we're already going, this one category of actors isn't prepared, what can we gather up to offer this party, what other issue can we put on the agenda, what other commitments can we make to them informally to get them to change their calculation." If the parties do that it's great, but I didn't see any other role for the neutral following the production of an assessment in which the neutral says under the current circumstances, "I see no way to go forward."
Q: In your experience does the publication of that assessment say hypothetically on of the parties has refused to come? Is it your experience that that publication of the assessment and then other parties willingness to come to the table might leverage the difficult party to come back?
Q: Not even in
A: No, because if their saying no and it's based on some rational calculation of what their next best option is. It's highly unlikely that they made a foolish error about their own interests.
Q: Rational seems like the key word there?
A: Well, self-interested.
Q: And I mean what about situations where there is an emotionally charged value differences that keeps a party from coming to the table?
A: One of the nice things about the method that I just described is when I meet with a party; it's not for attribution. It's purely private. If they're very emotional about it, they can yell and scream about it. They can do so; it doesn't have any affect on me. After a while they calm down and we sort of go through and ask, "So do you have a good option?" If we don't go forward and if the answer to that is no, and I say, "If people would agree to come on your terms you don't want to proceed?" and they say, "No if they would come on my terms which includes this and this and this then I'd been proceed," and I say, "okay fine let me check with the others."
Q: So the BATNA check there really seems like...
A: It's the one on oneness, not for attribution ???, yelling and screaming to the paper is fine, but that's not what this is. I'm offering people a chance to make a calculated judgment, a strategic judgment about how to pursue their own self-interests. Most people are pretty good at making a decision about they're own self-interests.