Best Practices: When A Convenor Takes Too Much Control Of The Process . . .
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"This article originally appeared in the April 1999 issue of Consensus, a newspaper published jointly by the Consensus Building Institute and the MIT-Harvard Public Disputes Program." |
The word "convenor" typically applies to the person who is sponsoring or organizing the dispute resolution process. The convenor may come from a government agency, private company, foundation or nonprofit group. the convenor often has substantive knowledge of the issues in debate, and may also have the authority to implement a group's consensus recommendations.
Convenors do not typically have process expertise, and thus seek out mediators or facilitators to design and run appropriate dispute resolution processes for them.
The division of labor between these two roles may sound simple, but in practice it often turns out to be difficult. Why? Because a convenor, particularly if mew to collaborative decision making, may not be clear about what his or her role should be, and may, inadvertently or not, usurp the mediator's role as process designer, meeting facilitator, or mediator. At the least, this can be awkward; at the worst, it can be detrimental to the prospects for consensus.
For insight into how to handle a difficult convenor-mediator relationship, we asked three experienced mediators what they do when a convenor tries to take too much control of a process.
Our respondents include Alice Shorett, President of Triangle Associates in Seattle, WA; Scott McCreary, Principal-in-Charge at CONCUR, Inc, in Berkeley, CA, and Rosemary Romero, President of Western Network in Santa Fe, NM.
Alice Shorett
Alice Shorett said her firm's approach to handling the mediator-convenor relationship is to address it up front, when the firm is hired. In particular, she suggests adding some or all of the following elements to the mediator's contract with the convenor.
First, she recommends a clause regarding "neutrality and independent work" that would read something like this: "The mediator serves at the pleasure of the mediation participants. Products such as the convening report, issues assessment, interim report, and draft and final mediation agreements will be prepared by the mediation team independently and reviewed by the participants jointly."
Shorett explained: "Our experience has shown that document preparation has to be the mediator's domain, and no participant in the mediation has 'first review.' This is a difficult concept for a client accustomed to having a final review and editing authority in dealing with planning consultants. We ask potential clients to talk with past clients about how this has worked if there are questions or concerns." A clause regarding "fiscal responsibility" should also be included in the contract, Shorett said, in order to head off disagreements about finances. Sometimes, she said, Triangle Associates suggests creating a fiscal review group, made up of representatives from the negotiation group, whose role is to review monthly reports and invoices.
"In cases where one of the parties is paying most or all of the mediation fee, it is wise to have representative participants review the mediation team expenses," Shorett said. "When a mediation case is large and involves numerous parties, we have used a second method for fiscal accountability - an independent, third-party bank trust or financial agent whose whole job is to review invoices for accuracy and audit. That way, month-to-month decisions about how much and what type of work should be done by the mediator are shared by the mediation participants without bogging down the whole process."
Finally, Shorett recommends including what she calls "go-no go" points. "Triangle Associates always structures mediation contracts so there are at least two such decision points where all of the mediation participants jointly determine whether or not to proceed to the next step," Shorett said. Typically, those points come after the convening report is completed and again when there are alternatives on the table.
Even after carefully negotiating a contract, Shorett said, a convenor may still attempt to control or dominate a mediator's work. "That is human nature," Shorett said, "and no matter how many rules are in place, out job as the mediator is to roll with it, keep a sense of humor and perspective, and be alert."
Shorett described how she handled one difficult moment with a convenor. "During my second mediation ever, I completed the interviews with the parties and presented the convening report to the mediation sponsor, a local government board, during an evening meeting. While I was describing the recommended composition of the mediation committee, there was a big silence. Finally, one of the staff members said, 'We can't have someone from that organization on the mediation committee, they sue us all the time.' I quietly pointed out that part of the reason this situation had become a 'dispute' was because the organization had filed suit.
"I countered, 'If you do not include this organization in the mediation, will there be an agreement that holds up over time?' I explained that all parties involved in a conflict who have potential to block implementation of a settlement should be included in the mediation committee."
Shorett persisted, explaining that her role as mediator was to recommend participants, the scope of issues, and an appropriate process. the local government board could agree to go forward with her conditions or decide not to proceed with mediation.
"In the end, the local government passed a resolution sponsoring the mediation, with the full set of mediation committee members," Shorett said, "and the process resulted in an agreement."
Scott McCreary
Scott McCreary began by describing what he felt was an example of an effective convenor-mediator relationship. It involved work he did with the CALFED Bay-Delta program, a 16-agency consortium in California aimed at improving the quality of the San Francisco Bay and Delta ecosystems and improving the reliability of the water supply to 22 million people.
"CALFED is not a single dispute resolution process," McCreary explained, "but rather, many, many intersecting processes. It involves large public workshops, task forces, technical work groups, and so forth. It is staff-driven, but the CALFED staff is wise enough to know that they need help from mediators every now and then."
McCreary was asked to assist in designing and mediating a consensus building process on the issue of water use efficiency in agriculture. "Tom Gohring, the program manager from CALFED, came to us and sought out our advice," said McCreary. "He asked us to serve as process designers and facilitators."
Throughout the process, which involved none meetings and the drafting and editing of numerous versions of a single-text document, Gohring and McCreary (and his fellow mediators) "worked as an integrated team," McCreary said.
He said Gohring deferred to the mediation team's process expertise and allowed them to mediate. Gohring focused on monitoring and weighing in on the substantive issues in debate, and reassuring participants that their work product would have an impact on the direction of the preferred alternative.
The group ultimately reached consensus, and their final report was incorporated into CALFED Phase II report.
Why did the convenor/mediator relationship work so well in this situation? "(Gohring) understood how our expertise could complement his own expertise," McCreary said. "He looked to us for process design and facilitation expertise - for the logical sequence in which to consider issues, for example.
"We also suggested a simple innovation that
was something of a departure from CALFED's
earlier work - the use of a single negotiating
text. We had a lot of strategic planning
conference calls with him, to jointly plan our
approach. We would write up an agenda, talk
through the options with him, and come to a
resolution on how each step should be done."
So, what can a mediator do if a relationship with a convenor doesn't work so smoothly?
McCreary suggested that the two parties write up a protocol for sharing responsibility. "We draft a written statement describing the division of responsibilities - a list of tasks that the convenor and mediator will be responsible for. These are sort of ground rules for interaction between a mediation team and a convenor." The mediator and convenor then monitor and revise this protocol together through an ongoing process of strategic planning, he said.
Such protocols are often used, McCreary said, when the convenor's budget is tight and he or she wants to handle some of the administrative tasks involved in a process. "In that case," he explained, "we'll write up a list of administrative and analytical tasks and the level of effort involved, and let the convenor pick out the ones they want to do. Then we work to hold them accountable for doing those things."
The key, McCreary said, is "to have a clear conception of the entire process form the beginning, so you know what's involved and who will do it. That pays tremendous dividends in the end."
Rosemary Romero
Rosemary Romero recalled how a convenor-mediator relationship turned sour in a process she was facilitating, and how she handled it.
"I was chosen by a state agency to facilitate a community involvement plan for a hazardous waste remediation project in New Mexico," she said. "The project was convened by the agency, which was represented by a project manager. Also involved were the mining company responsible for the cleanup and a variety of interested community members.
"The agency's project managers took over the project after we had been awarded the contract. When we first met with him, he indicated that he wanted to create a good working relationship with the community and other stakeholders. What he didn't say, though, and what became clear through the process, was that he really did not want to relinquish too much control." For example, in the meetings involving the key stakeholders - where the real negotiation took place - the project manager did most of the facilitating. As a result, those meetings were very formal and often included presentations of technical information and updates about remediation progress.
"The community meetings, which I facilitated, tended to be more energetic and interactive," said Romero. "The agency representative had asked me to 'really facilitate' and work through the issues." When Romero did that, the results were some heated but productive interactions between community members and the state agency and mining company representatives. These meetings also often involved technical presentations, however.
Romero explained: "The community members were skeptical and often hostile toward the state and mining company representatives, and even toward each other. The agencies didn't understand that the technical information they were presenting was, perhaps, being viewed as an exertion of power by agencies over the community members," who weren't as knowledgeable about the issues and found all the new information daunting. Romero said she saw it as her role to play "translator" between the various sides in order to ensure everyone understood the meaning and implications of what was being discussed.
"After one particularly challenging meeting," Romero continued, "(the project manager and I) met to discuss several issues. It became clear in the discussion that his concept of facilitation was very different from mine. He thought that the facilitator should simply be a process monitor - that I should just record information and agreements and only intervene when the situation looked like it might get out of control. Also, he felt that he could easily facilitate all of the sessions - even though the state was the lead agency for cleanup and so he couldn't possible be viewed as neutral.
"I explained my thoughts about true public participation and facilitation, and said that sometimes allowing people to 'passionately' discuss issues of concern was appropriate."
The project manager would not be convinced, however, and the two decided to "agree to disagree." Romero excused herself from further facilitation of the process, although her organization continued to provide administrative support.
Despite having to step down, Romero said, "It was good for me to be clear about my role."
Her general advice draws from this experience: "When working with convenors, be clear about your style of facilitating and the different types of interventions you are likely to use. Make sure your sense of your role meets the convenor's expectations.
She added: "As mediators and
facilitators, we should also always challenge
ourselves to consider whether or not we are the
appropriate person for the job, in terms of
personality and experience. I found that in this
instance, perhaps a more passive facilitator
would have served the agency better."
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