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.
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."
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."
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.