“This article originally appeared in the April 1997 issue of Consensus, a
newspaper published jointly by the Consensus
Building Institute and the MIT-Harvard Public
Convening different parties in a consensus-building process
without first doing a conflict assessment is like inviting a group of football players
from the U.S., Canada, and Australia to play a game together without any forethought or
planning,” explains Charles Pou, a partner at the Washington-based dispute resolution
firm of Harter & Pou and former director of the dispute resolution program of the
Administrative Conference of the United States.
“All the players will show up with different balls, different equipment, and a
different set of rules. Chaos will reign.”
Pou’s belief that a conflict assessment is the necessary first step in any
consensus-building process is shared by other practitioners. Whether they call it
“conflict assessment,” “situation assessment,” or a “convening
report,” practitioners agree they should start work on a case by conducting a series
of interviews with the parties, then preparing a recommendation about what kind of
process, if any, should be undertaken. Doing an initial assessment dramatically increases
the chances that a consensus-building process will succeed. Not doing one invites
Conflict assessments come in all shapes and sizes. When Bob Barrett of Barrett &
Associates in Palo Alto, California, worked with Clean Sites to help the Environmental
Protection Agency (EPA) set up a national advisory committee on urban stormwater
management, he spent more than 200 hours interviewing more than 100 stakeholders across
the country. At the other extreme, he has completed assessments in a single day, using a
group interview format.
While interviews may be conducted in a variety of ways, Barrett and other practitioners
report a number of standard elements.
Practitioners usually issue their recommendation to conduct an assessment when they are
approached by a public agency or some other kind of organization and asked to help parties
resolve a dispute or make a contentious decision. Usually, its done under a separate,
fixed price contract.
The initial list of people to interview is typically assembled by asking the sponsoring
agency to provide the names and phone numbers of all the parties to the dispute. But the
list expands throughout the process. A standard question practitioners ask is, Whom else
should I talk to? “You start by talking to the host organization,” says Charles
Pou, “and then you move out from there in concentric circles until you have talked to
as many people as you can.”
Howard Bellman, a Wisconsin-based solo practitioner, says that in-person interviews are
far superior to telephone contacts. Bellman has several open-ended questions (an
“interview protocol”) that he is ready to ask, including:
But Bellman notes that it is in a rambling, free-flowing conversations that he learns
the most. Sometimes a single question will set an interview in full motion, and he can sit
back and just listen. “I set the scene and get people going with an initial question,
and then I let them tell me what I need to know.” In contrast, other practitioners
stick closely to a standard set of questions, to ensure that they are covering the same
ground with each person.
Getting to know you. Interviews are like detective work, because they provide
intelligence about the different parties. “It’s terribly useful to sit in
someone’s office because it gives you a sense of who someone really is in their
organization,” says Bellman. “When you are talking on the phone with someone,
they may sound like a big shot, but when you arrive, you may find them sitting on boxes in
a room with no windows.”
Practitioners also depend on interviews to give them a sense of what each party cares
most about, a key piece of information for designing the agenda of issues that will be
covered in the meetings, and getting an early sense of where there might be room for
Building trust in the process. Practitioners emphasize that these conversations are not
just for gathering information; they also help educate the parties about the
“What we most fear is the unknown,” says Pou. “During the conflict
assessment, you can prepare people to make an informed decision about whether to
participate by explaining what is meant by ‘consensus,’ describing what the
process will look like, and reporting on where it has been used by others. This goes along
way towards relieving the anxiety about what is unfamiliar.”
Susan Podziba, a solo practitioner in Boston, describes another way that the interview
process ays the groundwork for a later negotiation: “It gives you [i.e., the
facilitator] an opportunity to begin building a relationship with each of the people
likely to be at the table.”
Testing the willingness to negotiate. One of the most important things to explore in an
interview is whether or not the interviewee is willing to work with other parties to find
a mutually beneficial solution. This interview data is the raw material for the
practitioner’s recommendation about what kind of process, if any, should go forward.
Parties may tell you they are supporters of convening a consensus-building process,
even though they have serious reservations about its value, because they are trying to
maintain good relations with the agency sponsoring the assessment.
To get parties beyond posturing, Jim Arthur, coordinator of the Washington Dispute
Resolution Project, says it is essential to persuade them he won’t betray their
confidence — a sometimes difficult task.
To encourage candor, Arthur may tell parties he won’t write a report unless he
thinks the conditions are right for a negotiation. For that reason, Arthur works to get
the agencies funding conflict assessments to agree that the process doesn’t have to
yield a written report.
Another way to test if parties really want to come to the table is to set up a trial
negotiation, such as over a set of ground rules. This helps him assess how people are
going to work together.
Most practitioners prepare a report summarizing the findings from their interviews.
These reports typically cover what was done; what was learned (that is, a description of
the issues, and the main points that were made without attribution to people or
organizations); and the practitioners recommendation about whether to go forward with a
dispute-resolution process, what kind of process it should be, and which stakeholder
groups should participate.
Many practitioners prefer a written version that can be submitted to the agency paying
for the service. Bellman says an oral report, however, is cheaper and leaves more funding
for the process itself. An oral report also gives a practitioner more latitude to be
candid with all the parties.
Whatever the report’s format, delivering the final recommendations can the
toughest part of the assessment. Podziba notes that it can be especially challenging to
convince the sponsoring agency not to shoot their messenger: “Sometimes the advice
you’re telling them is something they don’t want to hear. You might have to tell
them, for example, that a consensus-building process they want to do is not likely to be
successful. Or you mayhave to tell them that there are some intra-agency conflicts they
need to clean up first.”
Jim Arthur identifies another challenge: resisting the temptation to always recommend
convening a negotiation. “This situation is wide open for a conflict of
interest,” he says.
While more consensus-building processes are being convened, the convening organizations
aren’t always willing to fund an assessment process, let alone wholeheartedly endorse
One reason for that is cost, especially the expense and time required to track down
people for interviews. Worse, the field has typically used the kind of conflict
assessments that were first developed for federal negotiated rulemakings, a model that
Bellman says “tends to be richer than the resources of other levels of government can
afford.” The field should look for lower-cost ways to do quality assessments, he
says. Pou offers a second reason. In Washington, D.C., he sees more agencies launching
into attempts at consensus building without an assessment phase in pursuit of quick
results. “They think, This ain’t rocket science; let’s do it,” says
But just as hockey may look easy to people sitting in the bleachers, Pou says, once you
get on the ice the game can be treacherous.
Practitioners are working to persuade public agencies and other organizations of the
fundamental importance of conflict assessments. They agree: doing consensus building
without assessing the situation first is just asking for trouble.
New and experienced mediators seem to have different but equally tough challenges to face. Ask a new mediator, fresh from a basic mediation training, what he or she thinks about...By Giuseppe Leone
Arbitration BlogThat was the assessment of Constantine Partasides QC, founding partner of Three Crowns, during his keynote address to the joint ITA-IEL conference. According to Mr. Partasides, there is a...By Vernon Cassin