New Zealand Law Society - Consensus Building, Part 5: Reaching agreement and holding the parties to it

Consensus Building, Part 5: Reaching agreement and holding the parties to it

Consensus Building, Part 5: Reaching agreement and holding the parties to it

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In this final article on the Consensus Building Approach (CBA) to dispute resolution we look at the last two steps in the process: reaching agreement and implementation – holding the parties to the commitments that they have made. Too often participants are focused only on getting to an agreement so they can report their success to their constituents. In the rush to say “we did it” the representatives can forget to look closely at the practicality of implementation and whether the agreement reached is one which the various interest groups are likely to keep.

An example might be where warring factions rush into agreeing the terms of a ceasefire. That news is of significance to both sides, and the negotiators and politicians want to be able to say they have made a breakthrough in the war. However, matters can become worse if little attention is given to how to make the ceasefire actually work. All too often a return to hostilities happens quickly, which significantly impacts the morale of both factions and makes a further ceasefire all but impossible.

Let’s look at how to tie these two steps together to give any agreement reached a greater chance of long-term success. When the facilitator thinks that the groups are nearing agreement, they should consider the use of straw polls to ascertain how close the various interest groups are to each other. Armed with that information the facilitator can work on the strategy for getting the participants into a position of unanimous (or nearly unanimous – 80%) consent.

Moving to commitment

As the CBA process nears an end, the facilitator needs to move the group discussion from option generation to commitment to a single text agreement that will be signed by all parties. If a straw poll or other process used by the facilitator indicates that not everybody is yet in agreement, the facilitator may opt to work with the parties on conditional commitments. These are useful where, for example, one interest group thinks a contingency is likely to occur, but the balance of the group thinks it is highly unlikely. The agreement entered into by the parties can take account of this unlikely contingency by factoring it into the terms. That contingency would be recorded as an ‘if/then’ statement.

On the other hand, if the work of the facilitator reveals that it is not contingencies that are causing a party or parties to resist reaching agreement but the fact that they remain unhappy with the terms, another approach is required to get an agreement across the line. In this instance the party or parties who object to the agreement in its current form need to first articulate why they object. This should reveal to the other participants what interests the objecting group has that they feel are not being met. Secondly, the objecting party or parties must suggest changes to the agreement that would meet their interests but at the same time will not result in the agreement as amended becoming unacceptable to the other groups. That is, they need to put forward amendments that – if agreed – would result in them saying yes to the agreement but will not result in others who were in a “yes” position to now say no. That is, an agreement that meets the interests of all.

Before the agreement is signed the participants need to consider challenges that will arise post-signature and during the implementation phase that could derail the agreement. That is, they need to identify the obstacles that are likely to arise and how to deal with those obstacles. Both the participants in the CBA process and the agreement itself need to be up to this challenge. Put another way – how do you get an agreement that both the participants and the stakeholders that they represent would rather have succeed than look for ways to make it fail?

Ensuring interests are met

The first and most obvious point is to use the process to ensure that everyone’s interests are being met.

A key step to achieving this is to ensure that the representatives are, in fact, checking in with their interest groups throughout the negotiation process, keeping them informed, and bringing their interests to the table. The facilitator should also be checking that the representatives of the groups are personally committed to both the process and the agreement that they are negotiating. For example, if the facilitator suspects that a particular participant does not have his or her heart in the agreement, for whatever reason, the facilitator needs to be able to address that issue directly with the stakeholder group and, if necessary, get the group to agree to send a new negotiator.

Another tool is to get the agreement ratified by the interest groups. As part of this process, the facilitator would check with each group that they understand the terms of the agreement and are committed to its final form. It is key during this process that those with the mandate to act on behalf of any of the interest groups ratify the agreement. For example, if one of the interest groups is the legislative body and one of the steps following agreement will be a change in public policy, it is pointless having the agreement ratified by anyone other than the person or persons within the group who can effect the legislative change. To do otherwise risks an immediate veto of the agreement. Rather than reach agreement on something that may be vetoed, it would be better to reconvene the CBA process to discuss further modifications that may be necessary to get those in authority across the line. That is, it is essential to know whether those in authority agree and will support what is put before them before the agreement is finalised and the process brought to an end.

A binding final agreement

Finding ways to make the final form of the agreement binding is critical for implementation. Again, if the agreement is on public policy then legislative changes, regulatory changes or public policy changes may result which would bring the agreement into law – ensuring it is enforceable. Even if the negotiation is about a private matter, consider making the negotiated agreement into a binding contract that each of the interest groups legally commits to. Make sure that a dispute resolution provision is in the agreement in the event of issues arising.

The parties to an agreement reached by the CBA process should build into the agreement regular monitoring of implementation, thereby enabling issues to be addressed as soon as they arise. The facilitator can have an ongoing role in that respect by acting as the neutral person running that monitoring process and managing the communication that needs to stem from it.

The idea of monitoring the progress of an agreement and testing the health of the relationships between the parties as time progresses is not unique to the CBA process. The next article will look at this idea of monitoring agreements to keep relationships healthy and prevent issues from building up and becoming unnecessary conflict.

Paul Sills is an Auckland barrister and mediator specialising in commercial and civil litigation. He is an AMINZ Mediation Panel member. The first four parts of this series on CBA have appeared in LawTalk 921, 922, 923 and 924.

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