Public Involvement Techniques
3.B.d - Negotiation and Mediation
What are negotiation and mediation?
Negotiation and non-binding mediation are alternative dispute
resolution (ADR) processes designed to resolve a conflict between
parties unable to reach agreement. ADR procedures aim to resolve
conflict before it moves toward the courts. Agency staff can use
some ADR procedures; others require outside experts, often called
third-party neutrals. In some ADR procedures such as binding arbitration,
third parties make decisions. Binding procedures, however, are not
appropriate to transportation planning and project development.
This report deals only with non-binding techniques.
The major ADR procedures suited to transportation decision-making
are negotiation, facilitation, and non-binding mediation.
- Negotiation is the process of bargaining between two (or
more) interests. It can be conducted directly by the concerned
parties or can take place during the mediation process. In negotiation,
the concerned parties meet to resolve a dispute. In Nevada and
California, after a suit was filed against the Lake Tahoe-area
Metropolitan Planning Organization (MPO), environmentalists, developers,
and other participants negotiated in workshops and small meetings
to develop mutually acceptable environmental standards and long-range
plans. The city of Salamanca, New York, negotiated with representatives
of the Seneca Indian Nation to reach consensus on steps to provide
economic development opportunities for the tribe. (See Small
- Facilitation refers to skilled leadership focused on meeting
process and organization. Agency staff or third parties
can facilitate. Because it is broadly applicable to public involvement
situations other than dispute resolution, facilitation is presented
in this volume as a separate technique. (See Facilitation.)
- Mediation uses a trained, impartial third party to help
reach consensus on substantive issues at disagreement
among conflicting parties in public involvement. A mediator can
be from within or outside an agency but must be neutral and perceived
as such by all parties. While mediation can be binding or non-binding,
only non-binding mediation is considered here. Non-binding mediation
generally has the following characteristics:
- A neutral third party, impartial and unaligned with any side
of the conflict, is appointed to find consensus; the third party
has no decision-making authority;
- All interested parties are included, by agreement;
- The parties are asked to participate voluntarily;
- Opportunities are offered for local people, as well as officials
or leaders, to be heard;
- Community people receive responses to their suggestions or
- The parties work toward reaching consensus; the third party
makes suggestions for possible compromise positions and otherwise
helps the parties negotiate;
- If agreement is reached, it is usually considered a commitment
on both sides;
- Written agreements, memoranda, meeting minutes, or reports
are usually included; and
- Sessions are typically confidential and often protected by
State statute as such.
Mediation and facilitation have some similarities but are not
the same. Facilitation is similar to mediation in that participants
work toward mutual understanding with the help of a leader. However,
facilitation works toward building consensus within a meeting, right
from the beginning of the process, while mediation is usually employed
when an impasse is reached.
Why are they useful?
Sometimes consensus-building efforts lead to an impasse.
This is especially true for controversial or complex projects. In
such cases, both agencies and participants need another means to
determine which way to go.
Mediation and negotiation take a problem-solving approach rather
than an adversarial one. The process helps participants:
- Resolve differences without court suits;
- Facilitate agreement and address primary concerns of involved
local residents, abutters, and/or interested groups;
- Work together to ease implementation of a plan or project;
- Obtain agreement without an agency imposing an unpopular or
polarizing decision; and
- Deal directly with a project proponent or agency as an equal
Mediation helps reach consensus on controversial transportation
plans and projects. It is often used in construction disagreements
with contractors. Outside the field of transportation, examples
of how mediation has been used range from child custody disputes
to conflicts over siting hazardous waste or energy facilities. In
transportation, the Pennsylvania Department of Transportation (DOT)
has used mediation for several years. As one example, for Philadelphias
new interstate Route I476, an outside consultant worked to
develop agreements between community people and the agency regarding
environmental and mitigation issues that had stalled the project.
Mediation and negotiation provide a structured, semi-formal,
and orderly way for people to find agreement. They require no
one to commit to an outcome that may be unpredictable. The consensus
reached through them is non-binding on participants.
Alternatives to mediation and negotiation are more costly and
time-consuming. A dispute resolution process can avoid time
wasted in unproductive or acrimonious debate at meetings, litigation,
major redrafts of plans when they are nearly complete, or staff
effort spent rebuilding agency credibility.
Do they have special uses?
Negotiation is especially useful in informal situations—to
resolve differences among parties, avoid engaging a broader group
with local disputes, or address several aspects of a dispute simultaneously.
Negotiation can be brought into a process at any time but is most
effective before polarization. In Hampton, Virginia, a negotiation
process to find consensus on a new connector road was established.
Participants were trained in the steps of the process. When the
staff was further trained in facilitation and collaborative methods,
consensus-building became a regular element in Hamptons planning
Mediation, by contrast, has a special and distinctive use:
it is generally employed when a process has reached an impasse or
major breakdown. Mediation has been employed in transportation projects
and long-range planning studies where profound disagreement has
occurred. In the Boston, Massachusetts, Central Artery/Tunnel Project,
the process resolved an impasse over a critical river crossing design,
leading to adoption of an alternate plan. In Fort Worth, Texas,
a mediator was hired after local groups and residents filed suit
over the findings of an environmental impact study for expansion
of I30. The process resulted in more highway options, which
were broadly supported within the community and carried forward
into further study.
Who participates? And how?
It is essentialto include all potential stakeholders in
establishing a dispute resolution process. Stakeholders may include
neighborhood residents, local business people, abutters, regional
interest groups, public officials, and agencies. Failure to include
all pertinent interests undoes consensus. A person or group whose
position has been ignored can challenge the legitimacy of the process.
Parties need to be identifiable and willing to participate. All
participants must feel some pressure to agree and must have concluded
that they cannot do better by steam rolling each other or going
outside the transportation process by, for example, appealing to
the political process.
Parties in a dispute resolution process can appoint or elect
representatives in order to avoid large, unwieldy meetings.
This requires that groups be sufficiently well-organized to identify
leaders who can speak for the group credibly. In Silver Spring,
Maryland, representatives of project opponents and proponents, the
county, and a developer came to the table to resolve a dispute involving
a proposed downtown shopping and office development. The size of
the small, representative group helped to resolve the issues quickly.
The representative process requires a high degree of cooperation
and trust in selecting individuals to serve. A strong neighborhood
group in Minneapolis, Minnesota, served as the focus of leadership
meetings with police and other agencies to address drug and crime
problems in disadvantaged neighborhoods. Churches represented many
residents and created a focus for consensus building in the Binghamton,
New York, downtown revitalization project, and in the Fredericksburg,
Virginia, homeless shelter program.
Mediation usually consists of a series of meetings. Negotiation
can consist of one or more meetings among parties. All participants
are accorded equal status in the process and are encouraged to present
their views on each issue. For maximum success and effective participation,
the process must strive for:
- Regular and timely opportunities for participation;
- An on-going commitment from each participant to attend meetings;
- Full and honest expression of issues and concerns;
- Complete willingness to listen to other participants; and
- Agreement on the process and basic guidelines for managing it.
An agency sponsors and/or participates in a mediation or negotiation
process. Agency staff members develop and use negotiation and
consensus-building skills as a regular part of their public involvement
practice. Agency staff people also are potential third-party mediators,
although they should not serve in situations where their neutrality
on the issues is in question. Effective professional negotiators
focus on meeting the parties underlying interests. By doing
so, they open up many areas for creative resolution. Amateur negotiators
commonly understand negotiation as the hard-nosed exchange of positions
in which one party starts low, the other high, and each tries to
give as little as possible in the process of reaching an agreeable
middle ground. Professional negotiators avoid this win-lose approach
and strive for win-win solutions. The Pennsylvania DOT has on-call
mediation consultants who are called in as necessary. Its project
engineers are aware that they can request assistance on an as-needed
basis from agency headquarters when projects begin to encounter
obstacles, and that expert consultants can be assigned to resolve
conflicts, if approved by agency officials.
How do agencies use the output?
The goal of all dispute resolution is to reach a publicly-supported
decision by addressing and resolving pertinent concerns. Thus,
the result should be consensus on a course of action, including
the possibility of not going ahead with a plan.
Producing long-term results requires on-going leadership.
While many uses of dispute resolution center around a particular
plan, sometimes mediation and negotiation are used as needed over
a longer period of time to keep a process moving forward. For 23
years, a mayoral advisory board in Indianapolis, Indiana, has used
negotiation and mediation by group leaders to resolve competing
community objectives regarding allocation of resources and to foster
economic growth and civic expansion.
Mediation can resolve impasses over controversial projects.
In Chapel Hill, North Carolina, a third-party mediator (who was
also a local architect versed in design concepts) worked with neighbors,
city officials, and business people to develop a consensus design
for a new McDonalds restaurant opposed by the community.
Mediation or negotiation can be used in addressing priorities
for capital improvements. In New Jersey, mediation of a State Department
of Transportation road widening project in Montgomery Township successfully
resulted in a plan using staggered phases of implementation spread
over several years.
Mediation has helped in developing policies for new regulations
by bringing opposing sides together and avoiding obstacles and potential
disputes. The U.S. Environmental Protection Agency often uses a
mediator to develop consensus over regulations among a range of
public and private interests, for example in the areas of water
and air quality.
Who leads these techniques?
In mediation, an outside party or someone from within an agency
serves as a third party, provided she or he is neutral and is
perceived as such by all parties. The individual should have the
- Training in dispute resolution;
- Experience from many possible fields—including public involvement,
law, business management, planning, and training;
- No stake in the outcome;
- A relationship of trust with all parties to a dispute;
- Strict impartiality and fairness; and
- Ability to make suggestions and to find areas of agreement.
A mediator frequently creates a draft working document that
is modified through discussions with all parties to reflect developing
points of consensus.
A skilled mediator should be able to work on a single issue
on a short-term basis, with the possible option to remain involved
as a monitor of future activity or implementation. In Eugene, Oregon,
the mayor hired an experienced mediator to assist in developing
more positive relationships between city agency staff and minority
community residents. After a two-day process filled with frank and
open discussion, strong relationships were formed between previously
unconnected staff and community people.
Negotiation is led by agency staff or management. The chief
qualification is a good understanding of interest-based negotiations—whether
from training or experience.
Trained consensus-builders and mediators are available throughout
the United States. Agency staff can also be trained to develop
their facilitation, negotiation, and consensus-building skills.
The North Front Range Transportation and Air Quality Council—the
MPO for Fort Collins, Colorado, area—hired a consultant to
train the staff in mediation and consensus-building.
How are these processes organized?
The first activity of any mediation or negotiation is conflict
assessment. The third party or agency staff needs to address
such questions as: is the conflict resolvable? and what are possible
Further preparation is crucial. In beginning a process it
is essential to:
- Identify essential participants;
- Afford all participants an equal standing;
- Structure sessions to encourage participation;
- Find a neutral location for meetings, probably not in an agency's
- Achieve consensus among participants on the agenda;
- Find convenient times for meetings; and
- Provide sufficient time between sessions to do follow-up work
A successful negotiation might be completed in a very short
time—as little as an hour for a very specific issue with
a small number of stakeholders, where generally positive, trusting
relationships are already in place.
For a complex mediation, many months may be required, and
large complex transportation issues involving many stakeholders
may take a year or two or more. A meeting every two to four weeks
for two to four hours is a common scenario. Time between sessions
is often needed for staff to modify plans or conduct additional
analysis to respond to participants concerns.
In mediation, the work varies but usually includes the following
- Open the discussion and outline the process;
- Agree on the scope of effort and roles of participants;
- Reach consensus on the agenda among participants;
- Review the ground rules (one person speaks at a time, etc.);
- Ask all sides to present their viewpoints, perceptions of the
issues, and reasons for the dispute;
- Help people express their concerns;
- State all the issues;
- Review any points of agreement that can be determined;
- Develop several alternative scenarios to bridge the gap between
the disputing parties;
- Work with all sides to develop a solution to the dispute; and
- Document elements of project alternatives, funding priorities,
or other decisions agreed upon by the various interest groups.
In negotiation, the process is more flexible but usually
involves the following steps:
- Identify underlying interests, as contrasted to positions;
- Develop alternative scenarios to meet underlying interests;
- Combine or further refine scenarios to meet as many interests
as possible; and
- Select a scenario via consensus.
Sometimes participants do not feel comfortable meeting in the
same room with their opponents. In such cases, the third party
meets individually with participants outside the group to work out
an agreement step-by-step. The mediator carries proposals between
nearby conference rooms until the issues are resolved. In a significant
historic example, President Carter carried draft documents between
Prime Minister Begin and President Sadat—in different cottages
at Camp David—to obtain a formal Middle East peace agreement.
In this less open method, strict confidentiality must be pledged
by all participants at the outset and followed throughout the process.
In some situations, use of a third party follows stringent confidentiality
principles, although the resulting agreement becomes a public document
or is available to anyone who is interested.
What helps people change their positions?
Guiding participants toward finding shared and compatible interests
is an effective method. Usually participants take strong positions
assumed to be "the only answer" to addressing their needs
or wants. Often, however, alternatives exist that still respond
to the partys interests but are easier for other parties to
accept or consider.
Identifying interests begins with asking questions. Asking
participants why they feel a certain way clarifies basic needs and
desires that have not yet been articulated. Breaking down general
interests into specific elements helps focus the areas of disagreement.
Suggesting alternative choices also works. Figuring out why people
have made certain choices is a first step toward finding different
ways of fulfilling their interests that may be more compatible with
the other partys needs.
Working toward consensus by identifying interests rather than
establishing positions is a key skill that leads to effective
cooperative decision-making and consensus-building. Using professionals
and seeking information and strategies from books and other resources
helps make ADR processes successful.
How are negotiation and mediation used with other public involvement
Negotiation is part of an overall public involvement process
and of many individual techniques. Collaborative task forces have
consensus-building as a major goal and often use negotiation as
an integral element of their activities. (See Collaborative
Task Forces.) Practitioners who have honed their dispute resolution
skills use them informally in day-to-day work with participants
and other planning team members to help foster coalitions and move
Written materials are required to provide information about
issues or plans under discussion in mediation and negotiation,
as in other public involvement techniques. Disputes are often overcome
by providing adequate information or targeted materials that respond
to the needs of individual participants or groups. (See Public
What are the drawbacks?
A dispute resolution process such as mediation or long-term
negotiation sometimes involves a large number of interests,
adds time to a process (particularly when it follows a failed previous
effort), and requires significant management and organization. A
think tank on welfare issues in Shelby County, Tennessee, consisted
of representatives of 65 members of the clergy, businesses and business
organizations, providers of social services, and community organizations.
A one-year negotiation and consensus-building effort was required
for the group leader to gain commitments and guiding principles
from this large group of agencies and organizations.
Hiring a mediator or a trained negotiator is usually much more
expensive than using in-house personnel. The advantage is a
more skillful mediation and/or negotiation and an improved process,
along with a clearer position of neutrality. Sometimes a participant
serves as a third party if she or he is regarded as impartial by
Mediation may require special preparation for participants.
Some groups may not be sufficiently well-organized to participate;
for example, neighborhoods with no leadership. All participants,
including less powerful interests, must have equal standing within
the process. Consideration must be given to participants’ range
of knowledge and experience with the subject matter. Special printed
material and briefing sessions are often necessary to give all participants
an equal level of basic knowledge and understanding so they can
participate effectively in the dispute resolution process.
Participants are not always pleased with the results of mediation.
Failure occurs when mediation is undertaken after people have dug
in their heels and view compromise or any alteration in their position
as “losing.” Sometimes conflicts occur among people’s basic values,
such as accepting certain environmental impacts. If a large power
imbalance among interests exists, mediation may raise expectations
among the less powerful that cannot be fulfilled.
For various reasons, consensus may unravel. Poor attendance
suggests a lack of trust or "buy-in" to the process. If participants
drift away over a long dispute resolution process, consensus may
be weak and difficult to sustain in action. Even strong consensus
unravels if agreements are broken, priorities are not followed,
or principles are forgotten.
Agencies often fear the challenges and sparks that arise
with many competing interests. Residents, local officials, interest
groups, and agency staff may have long histories of hostility. Finding
ways of defusing such antipathy and developing a fruitful mediation
process is a challenge. A skilled third party’s role is to effectively
deal with hostility and make the outcome a success. Agency staff
with strong negotiation skills also help to create a more positive
Are mediation and negotiation flexible?
Mediation and negotiation have considerable flexibility.
- Are useful in long-range planning and project development;
- Resolve either major or minor conflicts;
- Are effective with either small or large groups;
- Take place in different-size municipalities or regions;
- Apply in a variety of settings—between groups or within groups;
- Work in homes, offices, or specially-designed facilities or
conference settings; and
- Take place over a range of time frames—short- or long-term.
Choosing the most appropriate dispute resolution technique depends
on the circumstances and characteristics of the dispute, the participants,
and the dispute resolution strategy.
When are they used most effectively?
Mediation is most effective when other less formal consensus-building
fails and an impasse has been reached. Negotiation is most effective
before an impasse is reached.
Mediation and negotiation must be part of a participatory process
that includes such regular activities as working group meetings,
hands-on discussion sessions, and timely responses to comments and
concerns. Attempts to reach consensus by addressing concerns early
helps prevent an impasse. Consensus-building generates trust that
agencies will cooperate to reach a mutually satisfactory solution
or agreement. Through mediation, agencies find help in reaching
agreements, but they are still ultimately responsible for making
For further information:
|City Manager’s Office,
Fort Worth, Texas
Centers—American Bar Association
Progress Committee, Indianapolis, Indiana
|Harvard Law School,
Program on Negotiation
|National Institute for
|Program for Community
|Society of Professionals
in Dispute Resolution
|University of Virginia
Institute for Environmental Mediation
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