Barrister and mediator Paul Sills continues his series on consensus building. In part 2, he explores how to determine whether the process of consensus building is a suitable approach for the dispute. Follow his series here.
Before a Consensus Building Approach (CBA) can be put into effect, somebody needs to identify the issue that needs to be resolved, who needs to resolve it, the resources that may be needed and then whether a CBA may be warranted.
This convening role is critical. Without a “somebody” to undertake this initial scoping exercise a CBA may never get started, or if it does, then it will fall over at the first hurdle.
Let’s call this person the CBA convener. First decision – who to select? Selecting a convener who is well-known in the area in dispute and well connected will facilitate the process. This person needs to know who to tap on the shoulder to join the process, or who to get help from with a particular issue. He or she also needs a fair idea of who represents the key interest groups for the issue in question, and the people who are likely to make or break an agreement by endorsing or withholding their consent.
Who selects the convenor? In the public sector it will be the department with responsibility for the particular issue or dispute. In the private sector it will be a party with the formal authority to take action.
The convener needs to be seen as fair-minded. Ideally, he or she should be seen as neutral or balanced in the eyes of the main protagonists on all sides of the argument. Avoid people who are polarising in their opinions or who are from inside one of the main stakeholder groups.
This person should understand the fundamentals of CBA for conflict resolution, and the main points of difference between CBA and traditional procedures that adopt simple majority rules. This knowledge is necessary for the convenor to have meaningful dialogue with the interested parties.
Majority rules processes are easy to establish: you need a quorum, an agenda, and a strict series of meeting protocols to determine who can speak and when, and how to pass resolutions to determine issues. As discussed in the previous article, CBA takes more time up front to assess whether it is the right approach. Consensus building takes time and commitment and will not be suitable for every conflict or issue. For example, some fundamental values based conflicts would be unsuitable for CBA because the key interest groups would not view there as being any opportunity to create options that would be acceptable to all (consensus). Equally, there will be issues or conflicts that don’t generate enough interest to warrant the type of commitment required by CBA. But there is a vast array of issues that fall between these two poles where CBA may be considered.
Before go/no-go decisions can be made, the convenor has a lot of work to do. From the outset, they need to engage with key players that they know are fundamental to achieving a consensus agreement. Are these people open to the idea of working together? Do they think there is room to try and create options that have advantages for all, and are they willing to try?
An essential pre-process step is for somebody to provide an assessment of the issue or conflict. That is, a summary of the views of the key stakeholders that can be used to establish a framework for the discussion to follow. The assessment will grow from a series of interviews or conversations with the groups concerned. These discussions are then summarised – normally anonymously – to provide a map of the conflict that sets out the major categories of interest groups and their views on potential agenda items. A draft assessment should be sent to the groups interviewed, and their comments and corrections incorporated into the final document. The convener can do the assessment work or engage a trained facilitator/mediator to do so.
The key for CBA is to get the right people around the table. The convener or assessor will know who the first groups are that they should be discussing matters with initially. They are the movers and shakers for that particular issue. When meeting with those groups the question should be “who else should we be talking to?” The answers will point towards a second layer of parties that need to be included. Through these meetings and questions, the initial list of invitees to the CBA process will be identified. This may need to be refined throughout the process as sub- issues relevant to the main conflict either fall away, or new ones are added that require the involvement of new people.
The human and/or financial resources needed for the process must also be identified and put in place by the convenor. A key human resource is to determine who should represent the various interest groups at the table. This issue has two sides to it. First, who can best represent each group in the negotiations. Second, who can best represent the CBA process and any consensus agreement reached back to the members of their interest group in order to get buy-in? The convenor needs to ensure consistency in the process, so each group should have a nominated representative as well as a nominated alternative. This avoids a lack of continuity by constantly changing representatives. This would be covered by the ground rules for the particular CBA process (to be covered in a future article).
The other part of identifying the resources is to establish what financial and physical resources will be required: meeting rooms, accommodation requirements, communication resources, any professional facilitator be hired to run the process etc.
The convening phase concludes with the decision to go ahead with CBA or not. If the convenor can say yes to the following questions, then the process can commence:
Paul Sills is a barrister with over 20 years’ experience working in global litigation markets. Paul is also an accomplished business leader, having been involved in a diverse range of companies (as CEO or director) including the marine industry, global health care and international freight. Paul has been engaged in mediations both as a legal advisor and as a client since 1995 and as a mediator since 2010. These have included multi-parties and complex issues surrounding Treaty of Waitangi settlements, aviation disasters, leaky homes, construction and receiverships. With a unique understanding of the challenges businesses and individuals face and drawing on his years of commercial and legal experience, Paul provides timely and cost-effective solutions for his clients. Paul’s appointments include Associate Member of AMINZ, a member of the panel of mediators for the Marine Industry Association, Triathlon NZ Age Group Adjudicator for 2015 and 2016 and a member of the panel of mediators for the New Zealand Law Society. Paul is approved to assist with the Society’s Early Resolution Service, as well as standard track mediations. As a barrister Paul maintains both an active commercial litigation practice and a comprehensive mediation practice. Contact Paul at paul.sills@paulsills.co.nz or connect via Twitter
For more information visit Paul’s website https://paulsills.co.nz/