Well done – to get this far you have identified the opportunity for consensus building, got the key stakeholders on board and identified the main issues. But now your first meeting is about to commence, and you are concerned about how you are going to hold all of this together.
Adopting a Consensus Building Approach (CBA) for your problem sounded great in theory – getting all the parties around the table to work through the issues in a series of constructive open and transparent meetings. But how do you ensure that actually happens? How do you prevent individual agendas and old grievances from flaring up again and hijacking your process?
The answer is to go back to the fundamentals of interest-based facilitation. Problem-solving by consensus is an interest-based exercise. It is not the place for a competitive win/lose style of negotiation. Some of your stakeholders may start that way, but they need to be guided away from that style of discussion and negotiation.
The key is to encourage the participants in the CBA process to build a problem-solving mindset – both individually and collectively.
Individually, the participants need to be encouraged by the facilitator to engage in the process in a non-judgemental fashion. Don’t mistake this for the participants simply being nice to each other. There will be issues of substance that invoke strong disagreement. Deliberation and debate need to be had about these points. But the debate can be held in a constructive way that does not judge others or focus on their motives. It is a classic application of the need to both hear and be heard.
As the late Stephen Covey would say “first seek to understand before seeking to be understood”. Seeking to be understood means to give reasons for the positions that you take. Requiring reasons can help gently test the positions that the participants will take during the negotiations and to separate positions from their actual interests (which are usually, at least initially, not well articulated).
As with any good mediation or negotiation, the participants must also separate the discussions that deal with option generation and ideas from that part of the process where they take options/packages to the various interest groups and seek commitment to an agreement. Everybody should participate in option generation – even if they are putting forward options that may not be in their best interest but may be of benefit to other stakeholders. Once debated, the options can then be tested to see whether they can be combined into packages that may form the basis of consensus. The facilitator asking open-ended questions such as “What if…”, and “How would it be if…” is a useful way to test the options in a non-judgemental way.
The role of experts
As discussed in an earlier article (LawTalk 923, November 2018), there are benefits in forming sub-committees to deal with specific parts of the process. There are also advantages in the whole group engaging experts who can help everyone to be better informed on any complex or specialised issues. These are bipartisan experts engaged to answer specific questions and advise the whole group on specialist topics. The use of neutral expert advisers also helps keep the deliberations non-judgemental. Everyone is working off the same information and nobody can hide behind experts that have been appointed to protect certain interests.
Transparency is essential. One way to ensure transparency is to issue written summaries of all meetings. The participants should be given the opportunity to comment on these written summaries before they are finalised. In addition, the facilitator should draft a single document that records the progress of the group towards consensus. Having a single text avoids multiple copies of the same document being in circulation. It also provides transparency and the participants can use it to easily track progress towards consensus. The facilitator should update the single text and keep it in circulation after every group meeting or subcommittee/stakeholder meeting.
One of the benefits of CBA is its flexibility. Rather than living and dying by hard and fast rules regarding, for example, the conduct of meetings, the group can elect to modify both their agenda/issues and the ground rules as the process develops. For example, if a new issue arises during brainstorming, or it becomes clear that an important interest group has been left out of the discussions, then expanding the issues or the group can be easily accommodated. In a similar fashion, if the ground rules that the group has established and agreed become unmanageable or no longer suit the processes, they too can be modified to suit the interest of a consensus-based outcome.
A CBA engagement will benefit from a firm deadline to conclude the negotiations and, if possible, reach a consensus-based agreement. Interim deadlines may also be needed throughout the process – for example, to bring an end to the brainstorming phase. There are no hard and fast rules regarding the duration of any particular phase or the overall process. Occasionally an external deadline might drive the conclusion of the process. With internal milestones, it will probably be obvious to the facilitator when it is time to move on. For example, when the meeting notes following brainstorming sessions do not add anything new to the development of the single text, that probably indicates it is time to move on.
The facilitator needs to work on getting the most out of the group so that collectively they can find solutions that are better for all members of the group. For seasoned negotiators used to win/lose negotiation tactics, this can be a bitter pill to swallow and they may be sceptical of the process. By focusing on the mutual gains to be had from the CBA process the facilitator can slowly break down that scepticism. The participants need to be encouraged to see what is possible, where mutual gains can be found during the negotiation and the trades that will normally take place. The process does not talk about compromises as is often seen in a mediation or negotiation. Rather, we are talking about genuine trades across issues – the trades being used to generate mutual gains for the benefit of all.
Finally, if you want to get the most out of your CBA process then seek out the assistance of a skilled facilitator. Somebody needs to manage the discussion between the parties in a way that meets the aims and objectives set out in this article. The best way to do that is with an independent facilitator who can manage the discussion, ensure all participants are treated fairly and keep the group to its agenda and timetable. The facilitator can also be responsible for ensuring that a written record of all the meetings is provided and that the document tracking progress is kept up-to-date.
Paul Sills email@example.com is an Auckland barrister and mediator. He specialises in commercial and civil litigation and is an AMINZ Mediation Panel member. This is the fourth in a series of articles on building consensus. Read Part One, Part Two, Part Three and Part Five.