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Open Source Negotiation Of Public Works

by Victoria Pynchon
February 2010

From Settle It Now Negotiation Blog

Victoria Pynchon

You might recall an earlier post in which I reported the (both expected and astonishing) results of an open source project in which researchers "opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists," resulting in the resolution of one-third of the problems that the research labs had been unable to solve without assistance.  See Collaboration Creates Better Science, with a link to the Harvard Working Knowledge article reporting the research.

This morning, thanks to google alerts (all praise google) I found this article about a public dispute over the demolition of a Dallas church that may or may not be entitled to historical monument protection - Judge Orders Mediation in Church Demolition Case.

 A Dallas judge on Friday ordered the Dallas school district and the Old Oak Cliff Conservation League to mediation in their dispute over the proposed demolition of the former Oak Cliff Christian Church building.

The DISD wants to raze the vacant building at 300 E. 10th St. to make way for a new Adamson High School. The league wants to save the 96-year-old structure and is asking a court to block the demolition at least until a review of potential alternatives.

To support his case for saving the church, league attorney John McCall Jr. on Friday projected two pictures of the church for courtroom viewing.

Before ordering mediation, state District Judge Martin Hoffman asked whether a compromise could be reached on the "beautiful old building. ... Is there a way to include this in DISD's plans?"

After conferring briefly with school district representative Lee Simpson, attorney Robert E. Luna told the judge: "The information I have is the building has to be torn down."

And when the judge asked about mediation, Luna again heard from Simpson before replying: "There's nothing here to mediate."

What intrigues me here is not so much the Court's order to mediate or one party's belief that mediation would be a waste of time.  What draws my attention are the comments to the story, many of which appear to be well-informed and to contain useful information and reasonable differences of opinion on the either/or choice as well as pointers in the direction of an interest-based resolution.  

Some issues, as mediators often hear, are simply not open to compromise.  Courts, the media and the public, however, continue to associate negotiated and mediated resolutions as necessarily requiring compromise.  Though every person interested in negotiation in the English speaking world has heard the story of the two girls and the single orange so many times that it has become tiresome, I remind my readers once again that when you ask a sufficient number of diagnostic questions underlying supposedly unyielding principles, you find the true needs, interests, desires, and fears that give rise to "principles that cannot be compromised."  Once you do that - ascertain the source of people's principles - you can often satisfy all parties without requiring any of them to compromise.

If you're among the handful of people unacquainted with the Getting to Yes orange-splitting story, it goes like this:  two girls each want the single orange in the fruit bowl and petition mom for their "right" to have it.  Though mom might make a "fair" decision - splitting the orange in half; awarding the orange to the girl who didn't get her way the last time, etc. - she asks a "diagnostic question" to determine whether both girls' interests could be satisfied at the same time.

Sure enough, one girl wants the orange skin for "zest" to make her cake and the other wants to eat the fruit inside. No need for either to compromise.

In the Dallas public debate, the Court - an open public forum - serves its most cherished role of adjudicating disputes in the presence of anyone who wishes to attend (and can fit inside).  Cameras have enlarged the potential audience for court proceedings and, of course, the working press reports on its day-to-day operations.  Mediation, on the other hand, is conducted in secrecy, a process that is at odds with public decision making in a democracy.

 

Here we see the extra value added to public decision-making by Internet 2.0 (the public conversation).  Anyone with an interest can leave their thoughts on the newspaper's blog, creating the potential for the same type of super-charged "open source" solutions that solved the scientific problems this post opened with.

You own thoughts? particularly about mediated resolutions to public problems.

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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Website: www.settlenow.com

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