Getting Reluctant Stakeholders To The Table: Experienced Mediators Share Insights

Share:

“This article originally appeared in the July 1998 issue of Consensus, a
newspaper published jointly by the Consensus Building Institute and the
MIT-Harvard Public Disputes Program.”

Most mediators agree
that inclusion is a bedrock principle of public
dispute resolution, that everyone with a stake in
a dispute should be at the table helping to
resolve it. This principle helps ensure that any
consensus agreement reached will be seen as
legitimate by all parties and the public and will
have broad support when it is being implemented.

So what does a mediator do when a key
stakeholder is reluctant or even refuses to
participate in a dispute resolution process?

For this first in a series of articles on best
practices in mediation, we asked three
experienced mediators to tell us how they handle
this difficult though not uncommon situation. We
asked them to base their comments on actual
experience. We hope the answers of these
respondents – Gail Bingham, President of RESOLVE,
Inc. in Washington, DC; John Huyler, Senior
Associate at The Keystone Center in Keystone, CO;
and Susan Carpenter, of Susan Carpenter and
Associates in Riverside, CA – will help other
mediators and public officials gain insight into
how to deal with reluctant stakeholders.

John Huyler

As a “great believer in thinking
carefully about stakeholders” interests and
BATNAs (Best Alternative to a Negotiated
Agreement), Huyler said he believes that
“people should be at a mediation table when
doing so is better than their alternative.”
“When this is not the case,” he said,
“negotiations are likely to break down or be
sabotaged.”

When stakeholders are resistant, Huyler meets
directly with them or their boards of directors.
“If I felt that the stakeholder was
listening and that I had adequately described the
mediation ahead and the stakeholder was still
unwilling to participate, I would talk to other
stakeholders to assess whether the mediation
could proceed with integrity without the person.
It the answer to that question in my judgement
and the judgement of others was ‘yes’ or
‘probably,’ I would seek out another stakeholder
representative to come to the table.

“But may antennae would remain extended
higher than usual t be sure that the replacement
was, at the beginning and throughout the process,
legitimate.”

Huyler recalls a situation in which a county
transportation department and a large corporation
were attempting to decide how road access would
be provided to a 4,000-person building the
company had refurbished in a suburban area.

“The other players were two neighborhoods
that abutted the office building property, each
of which was represented by an active and vocal
neighborhood association,” he said, adding
that the situation looked like a classic NIMBY
(Not In My Back Yard).

“When I was called in to mediate, I
discovered that both neighborhoods were
suspicious of the county, of the corporation, and
of each other. They were afraid the deck would be
staked against them, since the county would be
making the final decision. They saw little
likelihood of a ‘win-win’ solution.

“The key to moving forward was to design
a consensus-based process in which the
neighborhood representatives could deal with each
other in a mediated format, without either being
dominated by, or seeming to be dominated by, the
county or the corporation.

“Thus, we allowed each of the
neighborhoods to select four representatives to
come to the table, while the corporation selected
just one and the county attended only as
observer. With this format, the neighborhood
representatives no longer felt outnumbered and
defensive.”

In this case, the effort to include reluctant
stakeholders succeeded.

“The group negotiated a package of
transportation improvements that addressed all
the hot-button issues, such as safety, scheduling
of work shifts, and traffic volumes in such a way
that both neighborhoods realized they had
achieved a negotiated agreement far superior to
what would have happened had they gone it alone.
The county and the corporation were only too
happy to implement the deal.”

Susan Carpenter

Carpenter would first seek to determine why
the stakeholder group opposed participation.
“Was this decision based on a
misunderstanding of the mediation process? If,
for example, I learned that the stakeholder group
was afraid of being ‘out-voted,’ I would want to
describe to them in greater detail how consensus
decisions are made and then see if they were
willing to reconsider,” she said.

“If the key stakeholder did understand
the process and still decided not to participate,
I would explore with all parties whether another
group representing the same set of interests
would be an acceptable substitute. If this
strategy was not acceptable, I would encourage
the agency and the other parties to decide
whether they wanted to proceed, and if so, in
what fashion.

“The agency may decide to go ahead with
mediation, believing that the potential gain of
bringing the remaining parties together outweighs
the risks involved in losing one voice,”
Carpenter said. “The agency may also decide
to change its goal from achieving a mediated
agreement to developing multiple options through
a series of workshops or joint consultations.

“But in other cases, absence of a key
stakeholder may cause the parties to decide not
to proceed with mediation. If this occurs, I like
to leave the agency and other parties with an
agreement to explore the possibility of mediation
at a later time.”

Carpenter cites a statewide, land-use
mediation in which two of the most critical
interest groups – the environmentalists and the
developers – had serious reservations about
participating. “Both groups were
distrustful, if not hostile, toward the opposing
individuals and were uncomfortable with a process
that proposed bringing diverse parties
together,” she said. “Both thought the
legislative and court venues might be more
productive ways to proceed.”

Carpenter’s mediation team decided to organize
two large informational receptions, one for each
reluctant interest group, in order to present the
mediation proposal, answer questions, “and
to encourage candid discussion among the
attendees regarding the merits of participation.
We wanted to draw as many key leaders and opinion
makers from each interest group as we
could.”

To boost attendance at these receptions, the
team succeeded in persuading the governor to drop
in for part of each session. Nearly 30 people
showed up for one reception and more than 50 for
the other.

“By engaging in a critical mass of
like-minded leaders in an internal discussion, we
found ourselves not having to persuade parties to
participate, but rather watching a consensus
unfold as individuals debated the issues and
began to advocate for participation,”
Carpenter said. “The two receptions produced
a good understanding of the mediation process,
with its risks and potential benefits, and laid
the foundation for the involvement of
representatives from both key groups.”

Gail Bingham

This question gets to core issues “of
efficacy and ethics,” said Bingham. “Is
an agreement that excludes a key stakeholder
likely to stick? Ultimately, will it pass the
tests of legitimacy and fairness to which public
decisions are held? This questions also
challenges mediators to practice what we preach –
to focus on interests not positions, to address
people problems directly and not make the people
the problem, to develop options, and to use
objective criteria.”

When a key stakeholder refuses to participate,
Bingham asks them why. Reasons vary, from fear
that the stakeholder’s issues are not on the
table to a feeling of being outnumbered to a
belief that their BATNA is strong.

“Participation challenges are common,
sometimes come in clusters, and when not resolved
adequately contribute to the breakdown of
dialogue,” said Bingham. “The tough
call is whether (or when) to take participation
concerns as a signal that a consensus process
isn’t appropriate at that time or whether at
least to try.” Bingham cites a recent
example in which the decision was to try.

“A city government faced with decades of
controversy about how to provide and treat
potable water supplies reached out to stakeholder
groups and neighborhood leaders to design a
consensus process on the question of what quality
of water the city should be providing and at what
cost. But representatives of one key citizens’
group expressed considerable reluctance to
participate for several reasons: The process
didn’t include the issues they cared about; they
didn’t trust government officials to listen; and
they felt they could not afford to hire the
expertise that other stakeholder groups would
bring to the table.

“Over a period of a few weeks, I played a
form of shuttle mediation that resulted on the
city agreeing to a technical fact-finding meeting
focusing first on issues of importance to the
citizens’ group,” Bingham recalled.
“The goal was both to address the group’s
actual concerns and to begin to rebuild trust by
providing a forum to listen and be
responsive.”

One member of the group did attend and
contribute to the fact-finding discussion, but
most others picketed the meeting, reflecting what
many people had argued – that this dialogue had
broken down years ago. The outcome was poor,
Bingham said. “Other stakeholders were
frustrated by putting time into another effort
that did not succeed. No future consensus
building steps are being planned, and future
fights through the electoral process are on their
way.”

As this case shows, Bingham said.
“Resolving a participation challenge does
not automatically guarantee success. But more
examples of successfully working through concerns
about participation exist than do failures.”
She cites a case several years ago in which a
stakeholder already at the table was reluctant to
add another stakeholder to the process.

In this western water rights allocation
dispute, federal, tribal, state, local, and
private groups disagreed about whether to add a
group of water rights holders in the upper
reaches of one of the rivers. “One party at
the table felt it represented these groups
already and didn’t want the mediator to contact
them because of the fears that might be
generated,” Bingham explained. “Other
disagreed, because they saw the water from the
upstream reaches as a key component of any
regional solution.

“The negotiations were convened without
these issues being resolved, but over the course
of several meetings these concerns were worked
through. The entity ‘blocking’ the participation
of the additional groups also agreed to approach
this group themselves and invite them as
observers. It turned out that the group very much
wanted to participate. And, although the central
issue of the negotiations was not resolved, the
agreements that were reached included this
particular group’s concerns.”

In general, Bingham said, “My strategy is
to mediate among the potential parties about
these process interests. Once their reasons are
clearer, discussions of options for overcoming
these concerns for a fair and effective process
can be productive. More often than not the
mediation of process issues leads to an agreement
about how to modify the process so that all
stakeholders’ interests are met. Sometimes it
leads to an agreement that a mediated negotiation
isn’t feasible at that time. Always, it makes the
process more transparent and more consistent with
the norm that the process belongs to the parties.