Intergovernmental Mediation

Negotiations in Local Government Disputes

Roger Richman

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367008383
• eBook ISBN: 9780429711671
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

Disputes between government bodies are usually settled through either political bargaining or litigation, but a third method has been successfully utilized in Virginia. Since 1980, a number of municipal annexation disputes have been settled using formal mediation as a tool. The authors draw on their experiences in mediation and local government to

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Theory and Practice

In this book of theoretical and case studies we hope to help establish a new linkage between theory and practice in the field of conflict and dispute resolution. Our intention is to add to the material available for the training and continued education of effective mediators and, in doing so, to revise and expand the perspective for viewing the relation of concept to action, theory to practice, in the professions that apply social science knowledge.

The prevailing viewpoint on how theory should link to practice is founded in the modern behavioral social science approach that seeks causal explanations founded on empirical data (preferably quantified) and elaborated through logical deductive reasoning. This framework depicts the proper role of theory as the production of reliable predictions, so that those seeking to act can make valid judgments about the probable outcome of various lines of action. Predicting outcomes through analysis and then choosing actions that seem most probable to lead to desired results while avoiding negative possibilities make up what is generally regarded as the rational approach.

This scheme of rational action involves many difficulties, not the least of which is that social science knowledge—even in those fields based on quantified data and highly simplified axiomatic assumptions, such as economics—has a great deal of difficulty living up to its requirements. One response to this problem is to adopt a highly eclectic approach to theory application; the field of psychology seems to be characterized by this response. Another is to continue the attempt to find reliable explanation—even in face of highly mixed results. This response seems to be the one of choice in sociology, economics, and political science, perhaps because application of knowledge in these fields is more general and programmatic than specific and clinical.

Still another response is to eschew theory altogether and to claim instead that a given field of practice is not amenable to theoretic analysis and must be carried out ad hoc, situationally, or intuitively. Judging from a literature review on negotiation, and particularly on the role of mediation in negotiated dispute resolution, one would conclude that this last choice is the most prevalent response among practitioners and researchers in the field. Practicing mediators see dispute resolution as a highly dynamic process of deal cutting, in which the mediator exerts pressure on the parties to split the difference separating them. Relations between parties are depicted as purely adversarial; disputes are seen as sublimated war. In this view conflict resolution is rather predictable and mechanical—a matter of arriving at the right price. Mediators picture themselves as operating intuitively, by the seat of their pants; they tend to deride the idea that mediation can be explained theoretically.

This viewpoint is unfortunate, derived more from the dilemmas of behavioralism than from the nature of negotiation and mediation as phenomena. By excessively emphasizing surface-level aspects of social process, behavioralism seeks to reduce a social process like dispute resolution to only these more easily apprehensible variables. Although this approach would seem to simplify the task of explanation and prediction, it actually complicates it vastly—perhaps, indeed, making it ultimately impossible.

Our study and practice of dispute resolution strives to formulate an approach that joins deep-level institutional or structural factors with surface-level behavioral or dynamic factors. Our aim is to describe each type and suggest, at least in an implicit and preliminary way, how they interact and affect each other.

Structure and Dynamics

Perhaps one of the best ways to illustrate the concepts of structure and dynamics is by looking at group dynamics. Group facilitators are aware that the behavior of every group is fundamentally conditioned by a number of structural elements. Two of the most obvious and powerful of these are the spatial arrangements of the group members and the stages that groups experience as they proceed from formation to task performance and completion. Such elements are structural in that they operate on the behavior of group members in ways that lie beneath their conscious awareness. These deep-level structural elements are the basis for behavioral patterns in the sense that they potentiate behavior in given directions. Seating members in a circle, for example, disposes the group toward harmony and consensus, whereas a line of two chairs facing each other sets up the potential for confrontation. Similarly, definite behavior patterns characterize each of the stages that groups undergo as they develop. This process of development itself at least potentially induces the behavior.

Furthermore, the facilitator knows that certain elements will come into play through group interaction. Like the structural elements these dynamic elements push behavior in given directions. For example, the elements of accuracy and empathy in listening skills and sociometric patterns can produce states of harmony or dissension, depending on conditions. These elements are predominantly found at the surface level in the group and, therefore, can be consciously perceived by group members. These elements that group members consciously perceive increase the group interactions at the surface level since group members can respond to these elements by stopping them or changing their direction. These actions, in turn, can produce further changes in behavioral patterns.

The role of the facilitator is both defined and conditioned by these two levels of group reality. The levels define the facilitator's role in the sense that the facilitator's objective is to be aware of the power and effects of both the structural and dynamic elements and to intervene to raise the group's awareness of these so that any potentially negative effects of the elements on the group's work may be neutralized. The levels condition the facilitator's role in the sense that the structural and dynamic patterns characterizing a particular group will determine at least initially and sometimes finally the scope of the facilitator's action that the group considers legitimate. The role of the facilitator has an edge on these elements because (1) it is somewhat marginal to the group and, hence, partly out of the range of its structural and dynamic influence, and (2) it involves a deeper awareness of the laws of structure and dynamics in groups. With this leverage, the facilitator can work toward positive results.

The Contribution of This Work

An approximate likeness can be drawn between the picture we have just sketched and the process of dispute resolution. First, in intergovernmental disputes of the sort we have worked on and studied, a definite pattern of structural elements has appeared. Typically, there is an external frame, specified to a great extent by the law and by the arrangement of governmental institutions, that heavily affects the process of negotiations. In addition, those cases familiar to us have revealed a rather consistent developmental pattern, with its own logic and internal order. This developmental pattern gives the negotiation process a life of its own, with a synergistic power to produce outcomes beyond the initial intentions of each concerned party.

Second, intergovernmental disputes display a pattern of negotiation dynamics made up to a significant extent of speaking and listening dynamics, sociometric patterns, and so on, that are typical of any group process but which possess distinctive structural elements. These elements are represented at the level of dynamics in the way that they shape perceptions—namely, perceptions parties form of each other and of the mediator. Furthermore, these group dynamics are political and representational and reflect multiple, varied individual career goals. Group participants have diverse power bases that may not be consistent with their formal status, and they pursue various objectives according to the needs and wishes of their supporters while attempting to further their own varied career objectives. (In an organizational setting, the degree to which these characteristics applies varies.)

Third, the role of the mediator in intergovernmental disputes must be defined within the constraints set by these structural and dynamic elements. In this respect, the mediator is like a group facilitator; however, unlike the group facilitator, the mediator has an official status in the process. Because of this official status and the mediator's involvement with parties in reformulating the substance of issues, the boundaries of the mediator's role are less precise than those of the facilitator's role. Structure and dynamics interplay so heavily and closely that the rules governing the mediator's behavior are constantly changing. Sometimes the negotiation process demands that the mediator extend himself or herself beyond the intermediary role in negotiations; at other times much more distant kinds of role behavior are called for.

Under such ambiguous conditions, the mediator needs to consider such questions as; What structural factors are at work? How do they affect dynamics? How might dynamics alter perceptions of the structural factors? The answers to these questions might provide insight that will be useful to the mediator not so much in predicting the course of events but in formulating a next step in negotiations. The mediator who has a deep understanding of the negotiations process and who asks these questions can see disputing parties as much more than adversaries. Consequently, the parties can be moved from mere deal cutting toward collaborative problemsolving, in which the synergistic effects of negotiation can be obtained. In the complex and changing situation of negotiating, what to do next is the ultimate question. It cannot be answered well with conceptual tool kits that omit either structural or dynamic elements; thus, the main thrust of the studies in this book is to describe both these sets of factors and show their relation. By doing so, we hope to bring conceptualization directly into the arena of mediation practice.

The remainder of this chapter summarizes our findings by describing structural and dynamic elements at work in local government dispute negotiations and the mediation role as it emerges from our cases.

Structural Factors and Mediator Roles

The Framework of Law and Policy

The mechanisms of public policy (that is, law and administrative process) create conditions that establish adversary relationships in public sector disputes and institutions and processes (for example, mediation) to regulate and help resolve these disputes. In the disputes described in this book, the substantive issue of municipal annexation was (and in a sense still is) framed by statute as an adversarial process to be settled through judicial proceedings. This design resulted in very few negotiated settlements in annexation cases in Virginia in the seventy-five years that preceded the 1979 amendments to the state's annexation laws. In 1979 the legislature modified the statute by adding new procedures for both state agency administrative review and negotiation and mediation, while retaining the judiciary's decisionmaking role. Since the modifications, most annexation cases have been settled through negotiations,

The new statute called for the creation of a state agency to regulate annexation and directed the state agency to advocate negotiation as an alternative to litigation. That agency, the Virginia Commission on Local Government, has actively supported negotiations and the appointment of mediators in them, raising the possibility that local officials could negotiate in a policy area they had previously relegated to the adversary process. Thus the annexation process in the state has been transformed from one in which litigation predominated to one in which negotiated settlements are the norm. The advocacy of negotiations has encouraged local government officials expert in the local equities of annexation cases to craft their own settlements to these contentious issues.

As well as conditioning the external structure of disputes, laws indirectly influence the internal structure and dynamics of intergovernmental negotiations. The parties, of course, directly engage one another throughout the negotiations—in deciding to continue to negotiate, to make concessions, or to stand firm and prepare to leave the process. They also separately engage in a self-directed analysis about alternatives under the structure of law and policy. Negotiators continually test their alternatives to negotiation; they measure offers made and received against their conjecture of what litigation would yield. They do not, in most cases, objectify the odds of losing their cases; negotiators are predisposed to assume that the courts will support their position.

One of the primary roles of mediators is to clarify parties' options for either remaining in negotiations or pursuing litigation or delay. Parties in public disputes negotiate while testing (hypothetically) their alternatives to negotiation; therefore, mediators frequently review with these parties past decisions and clarify the influence of law and policy on the case, which helps the parties examine factors influencing their willingness to engage actively in the negotiation.

Mediators also help parties interpret the framework of law and policy because settlement concepts must be developed within the limits of existing policy as interpreted by both the designated state agency and by the special annexation court. Furthermore, our case experience indicates that a successful settlement system must be specially crafted to the statutory and administrative framework regulating the particular policy area. At the operational level, disputing parties must come to see, among other things, that a policy choice is available and that a negotiated settlement can be developed—that the statute regulating the subject enables the parties' interests to be balanced, and that the dispute resolution system does not hinder or restrict access to alternatives to negotiation—indeed it provides the possibility of relief from externally imposed decisions. In short, the parties must come to see the utility of negotiation as an alternative dispute settlement option within the given framework of law and policy.

The Evolutionary Stages of Complex Disputes

The least visible, though important, structural feature of complex negotiations that we have encountered involves what we have already noted as the autonomous nature of the negotiating process. We have seen across ten different cases a common process of negotiation unfold—an evolutionary process that seems to describe a generic pattern that animated these cases. The two case studies we present reveal that, at their foundation, negotiations have a life of their own. There is a pattern to negotiations that operates beyond the conscious control and beneath the awareness of the parties acting them out.

In our cases we have identified five phases in the negotiations process: (1) exploration and formulating of strategies; (2) formal presentation of proposals, (3) problem solving, (4) confrontation and a return to competitive bargaining, and (5) agreement seeking. These phases, which mark the evolution of the joint enterprise between negotiators in an adversarial conflict, have been drawn from our direct observation of different behavioral regularities among the negotiators at different stages in the negotiation. The behavioral patterns observed are generally consistent across a range of intergovernmental mediation cases in which the structural characteristics of the dispute are similar. The phases represent levels of the interteam development of issues and the important intrateam development of issues and levels of the approach each side takes to the negotiation. They mark the character of intrateam and interteam dynamics prevailing at any given stage in the negotiation. The phases describe how the individuals making up the negotiating teams are perceiving the negotiations as a whole—any single phase indicates the status, or state, of the negotiation at a point in time.

Our observation that negotiations do have a life of their own, governed by an underlying structural dynamic, seems to have rather profound implications. Future research on the negotiation process, for example, could well focus on furthering our understanding of this structural pattern rather than upon negotiation behaviors and the corollary matter of how to be effective at negotiating, especially in the sense of how to win.

The Organization of Negotiation

A negotiation between two parties, each of which represents a wider constituency, involves a network of linkages between separate centers of activity and decision. The decision centers in disputes between local governments, exist within (1) each negotiating team, which must develop a negotiating program; (2) each governing board, which must set an agenda and review the work of its negotiating team; and (3) the center of joint activity, which is the joint negotiating session.

These separate decision centers are linked fundmentally by the common imperative of settling the dispute. They create a set of dependent relationships with clear roles for each—for example, developing positions, approving positions, and exchanging proposals in a joint enterprise. In this sense they make up an emergent organizational form, configured about the shared temporary goal of creating a settlement.

Negotiations in complex disputes require the parties to fashion relationships that support clear communication and shared understanding of the meanings attributed to important concepts. Mediators, on entering disputes, reform communication paths among the decision centers and greatly enhance development of the negotiation as an entity. By providing a neutral, third-party role, mediators can promote the negotiation as a purposeful, goal-oriented program among independent actors operating within independent decision centers.

Mediators often focus on communications by either usurping direct communications between the parties (the model of separated parties with a shuttling mediator) or by more subtly affecting the flow of information between the parties. Mediators also deal with the extended structure of the negotiation. On entering a negotiation, they meet with the governing boards, which must ratify settlements, as well as with the negotiating teams. Mediators may meet with elected officials individually or in groups. Mediators are called upon to orchestrate several settings in the negotiation: (1) They may be required to meet frequently with individual officials one-on-one, (2) they meet with each of the governing boards at separate times, (3) they work intensively with the two negotiating teams selected by the governing boards, and (4) they attend and facilitate the joint negotiating sessions. Through the continuous selection and combination of these activities, mediators develop the structure of their own relationships to negotiators and they develop a structure of relationships between negotiating parties—either through their own neutral role or by facilitating direct contact between parties by meetings, phone calls, or written materials. Mediators' actions help establish and define the structural relations between the parties in a negotiation.

Negotiation Dynamics and Mediation Roles

The three structural factors just identified—external law and policy, the evolutionary phases of development within the negotiation process, and organizational relationships established in the negotiation—influence the pattern of surface level interactions, or the observable behavior we call the dynamics of negotiation. These structural factors influence negotiation processes by two complementary means...

Table of contents

• Cover
• Half Title
• About the Book and Authors
• Title
• Copyright
• Contents
• List of Tables and Figures
• Foreword
• Acknowledgments
• Introduction
• 1 Theory and Practice
• 2 The Commission on Local Government: A New Approach to an Old Dilemma
• 3 The Leesburg-Loudoun County Annexation Negotiations
• 4 The Virginia City-Oceanside County Boundary Negotiations
• 5 The Dynamics of Intergovernmental Negotiations
• 6 Mediator Roles and Negotiation Structures
• Notes
• Bibliography