Best Practices: When A Convenor Takes Too Much Control Of The Process . . .

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“This article originally appeared in the April 1999 issue of Consensus, a newspaper published jointly
by the Consensus Building Institute and the MIT-Harvard Public Disputes
Program.”

In a multistakeholder

public dispute, the roles of the mediator and the

convenor sometimes become blurred – often to the

detriment of the resolution process.

The word “convenor” typically

applies to the person who is sponsoring or

organizing the dispute resolution process. The

convenor may come from a government agency,

private company, foundation or nonprofit group.

the convenor often has substantive knowledge of

the issues in debate, and may also have the

authority to implement a group’s consensus

recommendations.

Convenors do not typically have process

expertise, and thus seek out mediators or

facilitators to design and run appropriate

dispute resolution processes for them.

The division of labor between these two roles

may sound simple, but in practice it often turns

out to be difficult. Why? Because a convenor,

particularly if mew to collaborative decision

making, may not be clear about what his or her

role should be, and may, inadvertently or not,

usurp the mediator’s role as process designer,

meeting facilitator, or mediator. At the least,

this can be awkward; at the worst, it can be

detrimental to the prospects for consensus.

For insight into how to handle a difficult

convenor-mediator relationship, we asked three

experienced mediators what they do when a

convenor tries to take too much control of a

process.

Our respondents include Alice Shorett,

President of Triangle Associates in Seattle, WA;

Scott McCreary, Principal-in-Charge at CONCUR,

Inc, in Berkeley, CA, and Rosemary Romero,

President of Western Network in Santa Fe, NM.

Alice Shorett

Alice Shorett said her firm’s approach to

handling the mediator-convenor relationship is to

address it up front, when the firm is hired. In

particular, she suggests adding some or all of

the following elements to the mediator’s contract

with the convenor.

First, she recommends a clause regarding

“neutrality and independent work” that

would read something like this: “The

mediator serves at the pleasure of the mediation

participants. Products such as the convening

report, issues assessment, interim report, and

draft and final mediation agreements will be

prepared by the mediation team independently and

reviewed by the participants jointly.”

Shorett explained: “Our experience has

shown that document preparation has to be the

mediator’s domain, and no participant in the

mediation has ‘first review.’ This is a difficult

concept for a client accustomed to having a final

review and editing authority in dealing with

planning consultants. We ask potential clients to

talk with past clients about how this has worked

if there are questions or concerns.” A

clause regarding “fiscal

responsibility” should also be included in

the contract, Shorett said, in order to head off

disagreements about finances. Sometimes, she

said, Triangle Associates suggests creating a

fiscal review group, made up of representatives

from the negotiation group, whose role is to

review monthly reports and invoices.

“In cases where one of the parties is

paying most or all of the mediation fee, it is

wise to have representative participants review

the mediation team expenses,” Shorett said.

“When a mediation case is large and involves

numerous parties, we have used a second method

for fiscal accountability – an independent,

third-party bank trust or financial agent whose

whole job is to review invoices for accuracy and

audit. That way, month-to-month decisions about

how much and what type of work should be done by

the mediator are shared by the mediation

participants without bogging down the whole

process.”

Finally, Shorett recommends including what she

calls “go-no go” points. “Triangle

Associates always structures mediation contracts

so there are at least two such decision points

where all of the mediation participants jointly

determine whether or not to proceed to the next

step,” Shorett said. Typically, those points

come after the convening report is completed and

again when there are alternatives on the table.

Even after carefully negotiating a contract,

Shorett said, a convenor may still attempt to

control or dominate a mediator’s work. “That

is human nature,” Shorett said, “and no

matter how many rules are in place, out job as

the mediator is to roll with it, keep a sense of

humor and perspective, and be alert.”

Shorett described how she handled one

difficult moment with a convenor. “During my

second mediation ever, I completed the interviews

with the parties and presented the convening

report to the mediation sponsor, a local

government board, during an evening meeting.

While I was describing the recommended

composition of the mediation committee, there was

a big silence. Finally, one of the staff members

said, ‘We can’t have someone from that

organization on the mediation committee, they sue

us all the time.’ I quietly pointed out that part

of the reason this situation had become a

‘dispute’ was because the organization had filed

suit.

“I countered, ‘If you do not include this

organization in the mediation, will there be an

agreement that holds up over time?’ I explained

that all parties involved in a conflict who have

potential to block implementation of a settlement

should be included in the mediation

committee.”

Shorett persisted, explaining that her role as

mediator was to recommend participants, the scope

of issues, and an appropriate process. the local

government board could agree to go forward with

her conditions or decide not to proceed with

mediation.

“In the end, the local government passed

a resolution sponsoring the mediation, with the

full set of mediation committee members,”

Shorett said, “and the process resulted in

an agreement.”

Scott McCreary

Scott McCreary began by describing what he

felt was an example of an effective

convenor-mediator relationship. It involved work

he did with the CALFED Bay-Delta program, a

16-agency consortium in California aimed at

improving the quality of the San Francisco Bay

and Delta ecosystems and improving the

reliability of the water supply to 22 million

people.

“CALFED is not a single dispute

resolution process,” McCreary explained,

“but rather, many, many intersecting

processes. It involves large public workshops,

task forces, technical work groups, and so forth.

It is staff-driven, but the CALFED staff is wise

enough to know that they need help from mediators

every now and then.”

McCreary was asked to assist in designing and

mediating a consensus building process on the

issue of water use efficiency in agriculture.

“Tom Gohring, the program manager from

CALFED, came to us and sought out our

advice,” said McCreary. “He asked us to

serve as process designers and

facilitators.”

Throughout the process, which involved none

meetings and the drafting and editing of numerous

versions of a single-text document, Gohring and

McCreary (and his fellow mediators) “worked

as an integrated team,” McCreary said.

He said Gohring deferred to the mediation

team’s process expertise and allowed them to

mediate. Gohring focused on monitoring and

weighing in on the substantive issues in debate,

and reassuring participants that their work

product would have an impact on the direction of

the preferred alternative.

The group ultimately reached consensus, and

their final report was incorporated into CALFED

Phase II report.

Why did the convenor/mediator relationship

work so well in this situation? “(Gohring)

understood how our expertise could complement his

own expertise,” McCreary said. “He

looked to us for process design and facilitation

expertise – for the logical sequence in which to

consider issues, for example.

“We also suggested a simple innovation that

was something of a departure from CALFED’s

earlier work – the use of a single negotiating

text. We had a lot of strategic planning

conference calls with him, to jointly plan our

approach. We would write up an agenda, talk

through the options with him, and come to a

resolution on how each step should be done.”

So, what can a mediator do if a relationship

with a convenor doesn’t work so smoothly?

McCreary suggested that the two parties write

up a protocol for sharing responsibility.

“We draft a written statement describing the

division of responsibilities – a list of tasks

that the convenor and mediator will be

responsible for. These are sort of ground rules

for interaction between a mediation team and a

convenor.” The mediator and convenor then

monitor and revise this protocol together through

an ongoing process of strategic planning, he

said.

Such protocols are often used, McCreary said,

when the convenor’s budget is tight and he or she

wants to handle some of the administrative tasks

involved in a process. “In that case,”

he explained, “we’ll write up a list of

administrative and analytical tasks and the level

of effort involved, and let the convenor pick out

the ones they want to do. Then we work to hold

them accountable for doing those things.”

The key, McCreary said, is “to have a

clear conception of the entire process form the

beginning, so you know what’s involved and who

will do it. That pays tremendous dividends in the

end.”

Rosemary Romero

Rosemary Romero recalled how a

convenor-mediator relationship turned sour in a

process she was facilitating, and how she handled

it.

“I was chosen by a state agency to

facilitate a community involvement plan for a

hazardous waste remediation project in New

Mexico,” she said. “The project was

convened by the agency, which was represented by

a project manager. Also involved were the mining

company responsible for the cleanup and a variety

of interested community members.

“The agency’s project managers took over

the project after we had been awarded the

contract. When we first met with him, he

indicated that he wanted to create a good working

relationship with the community and other

stakeholders. What he didn’t say, though, and

what became clear through the process, was that

he really did not want to relinquish too much

control.” For example, in the meetings

involving the key stakeholders – where the real

negotiation took place – the project manager did

most of the facilitating. As a result, those

meetings were very formal and often included

presentations of technical information and

updates about remediation progress.

“The community meetings, which I

facilitated, tended to be more energetic and

interactive,” said Romero. “The agency

representative had asked me to ‘really

facilitate’ and work through the issues.”

When Romero did that, the results were some

heated but productive interactions between

community members and the state agency and mining

company representatives. These meetings also

often involved technical presentations, however.

Romero explained: “The community members

were skeptical and often hostile toward the state

and mining company representatives, and even

toward each other. The agencies didn’t understand

that the technical information they were

presenting was, perhaps, being viewed as an

exertion of power by agencies over the community

members,” who weren’t as knowledgeable about

the issues and found all the new information

daunting. Romero said she saw it as her role to

play “translator” between the various

sides in order to ensure everyone understood the

meaning and implications of what was being

discussed.

“After one particularly challenging

meeting,” Romero continued, “(the

project manager and I) met to discuss several

issues. It became clear in the discussion that

his concept of facilitation was very different

from mine. He thought that the facilitator should

simply be a process monitor – that I should just

record information and agreements and only

intervene when the situation looked like it might

get out of control. Also, he felt that he could

easily facilitate all of the sessions – even

though the state was the lead agency for cleanup

and so he couldn’t possible be viewed as neutral.

“I explained my thoughts about true

public participation and facilitation, and said

that sometimes allowing people to ‘passionately’

discuss issues of concern was appropriate.”

The project manager would not be convinced,

however, and the two decided to “agree to

disagree.” Romero excused herself from

further facilitation of the process, although her

organization continued to provide administrative

support.

Despite having to step down, Romero said,

“It was good for me to be clear about my

role.”

Her general advice draws from this experience:

“When working with convenors, be clear about

your style of facilitating and the different

types of interventions you are likely to use.

Make sure your sense of your role meets the

convenor’s expectations.

She added: “As mediators and

facilitators, we should also always challenge

ourselves to consider whether or not we are the

appropriate person for the job, in terms of

personality and experience. I found that in this

instance, perhaps a more passive facilitator

would have served the agency better.”