A Community Guide to Using Alternative Dispute Resolution to Secure Environmental Justice
Now we turn to the fundamental principles of negotiation strategy. You should be aware of these principles as you develop your own strategy and know that the other party will also be using them, particularly if it is a private company with the resources to hire professional negotiators.
Know your priorities and options
It is not enough to enter ADR with only a general idea of what the problem is or what you want. Since you will probably not obtain everything you seek in a negotiation, the community should be prepared for some give-and-take. Be sure to think through these issues carefully with your community:
- What are your main interests? You might rank them in order of priority.
- Are there any issues that are non-negotiable? Is everything else on the table? The community must agree as to exactly what is on the table.
- What is a desirable range of outcomes? The ADR outcomes that make sense for you will depend on a detailed analysis of your alternatives. This alternatives analysis includes:
- The Best Alternative to a Negotiated Agreement (BATNA)—write down all of the alternative courses of action you might pursue if ADR fails. Then, decide which one is best; this course of action is your BATNA. This decision may involve several complicating factors. For instance, some people in a community may argue that a lawsuit is the best alternative because there is a chance that it might result in a shutdown of the polluting facility. Others could respond that the chance of winning big in a lawsuit is very small and that the process is expensive and time-consuming, so the best alternative is another organizing strategy that is more likely to result in at least some change.
- The Worst Alternative to a Negotiated Agreement (WATNA)—turn back to your list of alternative courses of action. The result at the bottom of the list, the worst thing that would happen without ADR, is your WATNA.
- Which of the alternative scenarios is most likely? It is possible that the most likely alternative is neither the best nor the worst possible outcome.
- "Reservation point." This is the bare minimum that you will accept in an agreement. If you cannot get it, you will walk away. If you are certain you can achieve your BATNA, you probably will not accept an agreement that is significantly worse than that. However, the possibility that you might wind up with another alternative, like your WATNA, will influence your reservation point.
- What "concessions" can the negotiating team make? A "concession" is something that one side gives up in order to meet another party's demands. For ADR to be successful, each party must make one or more concessions. Write down a list of possible concessions. Be creative. For example, a community group could "concede" its right to file a lawsuit in exchange for obtaining an agreement from the company to perform certain actions, even if the group had no actual ability or intention of filing a legal action.
- Is the other party likely to want something that you may be willing to give at little or no cost? You might be able to obtain a large concession from an opposing party by giving up something that is important to them, but you believe is of minor interest to your group. Using the example above, giving up the ability to sue, if that option is not viable for you, may be a small concession for which a company would be willing to give up a great deal in return.
- Are trade-offs possible? Think about specific trades that might appeal to everyone.
Research the other party
Researching the other party or parties is an essential part of developing your negotiation strategy. In general, you want to know everything you can about the individuals, government agencies, and companies with whom you are negotiating. Here are some tips for identifying the most important information.
You are more likely to be successful in achieving your goals if you can identify the interests that motivate the other party. Companies or organizations that agree to enter into ADR with community groups generally have some goals that you can use to inform both your negotiating strategies and the content of your proposals:
- They want to save time. For companies, time is money. If a dispute can be resolved rapidly, the total costs can be determined and factored into the company's budgets and financial targets. If a dispute drags on, the uncertainty and length of time can cost the company money—not only in terms of staff time and attention, but possibly in terms of interest on money borrowed to carry out projects. They want to maintain a positive public image. Companies and other organizations, including government agencies, may have an investment in a public brand or image that they want to maintain. Being seen as responsive, "green," community-minded, or socially responsible may represent part of the party's value, and negative publicity may hurt not only its reputation but also its actual investment in brand identity.
- They may have differing goals at different management levels. Sometimes a regional or local part of a larger organization may have different values and practices than the parent organization. Determine whether you should be dealing locally or should involve someone from headquarters. It may be the case that a local operation is being managed in a way that is not consistent with the company's overall policies and procedures. If corporate environmental health and safety policies are not being followed at a particular facility, involving corporate management may be an easy solution.
- They want finality. Often the primary concern will be to resolve a dispute once and to not have it popping up again and again with different concerns, different people, and different requests or demands. Recognizing this desire for finality, a company or organization may be willing to give more in a settlement if it can be certain that the dispute will not re-start later.
What about the other party's BATNA, WATNA, and reservation point? Although it is impossible for you to know exactly what the other party intends to achieve through ADR and what its motivations are, you should be able to make a good prediction based on everything you have learned in your preparations. Write a list of each of the other party's needs and interests, and rank the importance of each one. Then try to put yourself in their position and do the same exercises described above to determine their BATNA, WATNA, and reservation point. Does the community have leverage over the other party that can help shape how that party views its alternatives to ADR?
Communication style and personality. The flow, and sometimes even the success, of a negotiation can depend in part on the personality of the people involved. Learn everything you can about the people who will be representing the other parties. Hopefully, you can use this knowledge both to improve your professional relationship with the other people at the table and to predict how they will behave.
A great way to study someone's personality is to see him or her in action. If a representative for one of the other parties is scheduled to speak in a public setting, such as a government hearing or a meeting, prior to your ADR process, you should ask a community member to attend and observe the person's style and temperament.
Research the professional role of each person you are meeting in the ADR process. A person's responsibilities in an organization may shape his point of view and priorities. For example, the public relations director may look at issues with a different mindset than a company's financial officer.
Decisionmaking authority. Are you negotiating with a person who possesses the "authority" to strike a deal with you on behalf of the person or company causing the problem? If you do not know, you should ask this question directly. If you are not speaking to a real decisionmaker, avoid misunderstandings by asking several important questions: Whose approval is necessary? Can someone higher in the "approval chain" participate? How long will approval take?
What's really possible?
Once you have thought about the kinds of agreements that might be acceptable to both you and the other side, you can start predicting what an actual agreement might look like. Where is there common ground? The answer to that question will lead you to the zone of possible agreement—the solutions that would be acceptable to everyone at the table. In most negotiations, there is more than one solution that would satisfy everyone. Some of the possible outcomes will be better for you than others. Understanding the range of possibilities will help you reach more of your goals.
Avoid unrealistic expectations. Many communities understandably seek large-scale change—like driving the offending facility out of their neighborhood. Communities should understand from the start that they probably will not be able to achieve these kinds of goals through ADR. Thinking carefully about options within the zone of possible agreement can help you focus on realistic results.
You can use role-playing exercises to practice your negotiating skills. Have somebody on your team study the other parties' negotiators and positions. Then practice negotiating against your teammate. Even though you cannot predict exactly how the real negotiation will play out, role playing can help you anticipate what the other parties will say, plan out your responses, and become a more comfortable and effective negotiator.
Another part of your strategy will be figuring out how you can make the best use of any experts supporting your team. Many people want to have their experts with them at the bargaining table whenever they discuss a technical issue. If you take this approach with an expert, you must be confident enough in the person to be sure that he or she will not take over the discussions, or say something that is inconsistent with what your community is trying to accomplish. Moreover, the expert's time may be limited, so it may make sense to invite the expert only at critical points in the negotiation.
If you do not have an expert with you during negotiations, think about getting expert input at certain crucial stages. For instance, you can build time into the ADR process to consult with an expert outside of the negotiating room about proposals from the other side.
There are a few roles that lawyers can play in ADR. A lawyer can help determine whether a lawsuit or some other legal process is a good alternative to ADR. Even if you have not retained a lawyer to help you with your environmental problem, you might consider whether a lawyer can help when it comes time to write an agreement or review a draft agreement that the other side has proposed. Lawyers can look for problems with the wording of particular provisions that may allow for differing interpretations. They can also ensure that the agreement is an "enforceable" document and contains language that forces each side to stick to agreed-upon promises. If possible, have a lawyer review a draft of your agreement before you sign it. Although it can be difficult to find affordable legal assistance, you might be able to find a lawyer who is willing to volunteer for this limited role.
Even if there is a lawyer on your steering committee, you may not want to include her or him at the negotiating table. Some groups find that the presence of a lawyer at the table makes it difficult to speak openly and collaborate.
|The Maple Plains Community Develops a Negotiation Strategy
To prepare for the mediation, the community members met several times to discuss solutions that would be helpful to them. The first suggestion was to get rid of the drums altogether and to place them in another site that was not in a residential community. Someone pointed out that there was a waiting list of convalescent home residents waiting for garden plots, and that it would be ideal to be able to expand the garden into the drum storage area if it could be thoroughly cleaned up. Community members lit up with enthusiasm at this suggestion, agreeing that a garden would truly offer a benefit.
Next, they discussed other outcomes that would be acceptable, short of meeting all the community's demands. In the end, the community agreed it would be acceptable for Belvedere to find an alternative site even if the convalescent home was not able to obtain access to the space. The community also agreed on its "reservation point." As a worst-case scenario, the community agreed they would settle for the company repairing the leaking barrels and upgrading the storage site until they found a long-term strategy for relocating them. But under no circumstances would the community agree to Belvedere simply repairing the leaking barrels without finding an appropriate long-term solution for disposing of their facility's by-products.
The community did not want to accept any agreement that was worse than their BATNA (the best alternative to a negotiated agreement). They had several options they could pursue if they left the mediation without a deal—for instance, they could demonstrate at the plant, undertake a media campaign, file a lawsuit, or pressure local and state governments to take enforcement action that might lead to changes at the site.
In their preparations, the community gathered information from the internet about Fred Robertson, the manager who would be Belvedere's lead negotiator. They also asked about his reputation among workers at the plant. The steering committee heard a rumor that Fred wanted to be the next company president, and so they hoped that he would have a particular interest in reaching an agreement. Mary called Fred to find out whether he would have authority to make a final decision, and discovered that any agreement would require the regional manager's approval. They concluded their strategy would have to take Belvedere's national interest into account, not just that of the local Maple Plains mill. The community brainstormed plausible opening positions for Belvedere, and the responses they predicted Belvedere would offer to the community's complaints.
Mary and Ken volunteered to represent the community at the negotiating table, and the rest of the steering committee agreed that those two could legitimately represent their concerns because they had been the most active in community outreach. Mary and Ken practiced negotiating by going through a role play against one of the other steering committee members, who had become acquainted with Fred's style by watching him speak at city council meetings.