Constructive Confrontation: A Strategy for Dealing with Intractable Environmental Conflicts


CONFLICT RESEARCH CONSORTIUM

Working Paper 97-1, March, 1997.

By Guy Burgess, Ph.D. and Heidi Burgess, Ph.D.

Co-Directors

Conflict Research Consortium

Presented to the Conference on Environmental Conflict Resolution in the West, Udall Center, University of Arizona, March 20, 1997.


This paper was written with a small grant from the Conflict Resolution Consortium, University of Colorado. Funding for the Consortium and its Small Grants Program was provided by the William and Flora Hewlett Foundation. The statements and ideas presented in this paper are those of the author and do not necessarily represent the views of the Conflict Resolution Consortium, the University of Colorado, or the William and Flora Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: crc@cubldr.colorado.edu.


Copyright (C) 1997. Guy M. Burgess and Heidi Burgess. Do not reprint without permission.

Funded by the William and Flora Hewlett Foundation and the University of Colorado, the Conflict Resolution Consortium is a coordinated program of research, education and application on three of the University's four campuses. The program unites researchers, educators, and practitioners from many fields for the purposes of theory-building, testing, and application in the field of conflict resolution. Current focus areas include international conflict; environmental and natural resource conflict; urban, rural, and inter-jurisdictional conflicts; and the evaluation of alternative dispute resolution mechanisms.

WORKING PAPERS

The Conflict Resolution Consortium working paper series includes a variety of papers written by our members as a part of their research. Usually these papers are in preliminary draft stage and are being prepared for eventual publication in professional journals or books. Other papers record discussions from Conflict Resolution Consortium seminars and plenary presentations.

The purpose of the working paper series is to generate a dialogue about the work presented. Readers are encouraged to respond to the papers either by contacting the author directly or by contacting the Consortium office.


IRREDUCIBLE WINNER-LOSER CONFLICTS

Our work has been motivated by two observations. First, many environmental conflicts seem to stubbornly resist resolution, even when leaders in the field apply state-of-the-art conflict resolution techniques. Second, many traditionally disempowered groups believe that conflict resolution professionals have been coopted by powerful interests, and thus use this process as a mechanism for "sugar-coating" the continued domination of the disempowered groups. Thus, many of these groups tend to distrust mediation and other conflict resolution processes, preferring to wage their battles in the courts or through direct action.

In thinking about how the field might best respond to these two problems, we began by asking why is it so difficult to find "win-win" solutions which all parties are willing to embrace as the best way for advancing their interests. Win-win solutions are particularly difficult to obtain, we have found, when conflicts involve one or more of the following three issues. First are irreconcilable moral differences. Many environmental conflicts, for example, basically involve differing answers to the question, ?Does the Earth belong to humans, or do humans belong to the Earth?" This question has no verifiable answer -- one's answer is based on fundamental moral, religious, and personal values that are not easily changed or compromised.

Also problematic are high-stakes distributional conflicts over who gets what. While some people are truly altruistic or socially concerned, many are more individualistic and selfish. These people tend to try to secure for themselves as many of the benefits of exploiting environmental resources as possible, while simultaneously attempting to transfer the costs of exploitation to others. This is what happens in all "tragedy of the commons situations," where people despoil a common resource for personal benefit, knowing others will have to bear most of the cost. The degradation of air and water quality and opposition to efforts to strengthen air and water quality standards is one example of this dynamic.

In other instances, individuals compete for sole possession of an environmental resource, be it land, water, minerals, or wilderness access. While some of these distributional conflicts can be resolved in win-win ways, others cannot. For example, the same water cannot be kept in a stream to preserve in-stream flows, withdrawn for domestic use, and impounded in a reservoir simultaneously. The more water is used for one purpose, the less is available for another. Similarly, if land is to be set aside for habitat preservation, it will not be available for ecologically damaging uses such as motorized recreation or mineral extraction. Thus a "win" for one interest group is necessarily a "loss" for another.

Sadly, environmental issues are also involved in "pecking order" conflicts, where "hot button" campaigns over environmental issues become a weapon in the national struggle for political dominance between liberals and conservatives. Pecking order conflicts are a third type of conflict that is necessarily zero-sum. If one group is on top, the others are not. While it is nice to think that power could be shared, most often the group(s) who have power seek to maintain their position, while low power groups seek not just to share power, but to prevail over their opponents.

Thus, all three of these sources of conflict have an irreducible, zero-sum, win-lose core which makes it very unlikely that win-win solutions to these underlying conflicts can be found. (It may, of course, be possible to find important win-win opportunities within the general context of intractable conflict. Once these opportunities have been exhausted, however, the only way that the parties can advance their position is at the expense of their opponents — an option to which an opponent will never voluntarily and knowingly agree.) This unavoidable dilemma reveals serious shortcomings in voluntary agreement-based strategies that rely on win-win outcomes for resolving environmental conflicts.

REFRAMING THE CONFLICT PROBLEM

Our efforts to address this problem focus on a subtle, but we believe critically important, reframing of the basic conflict problem. We believe that continuing confrontations over these core zero-sum issues are inevitable. What is not inevitable is the destructiveness which commonly accompanies such confrontations. Hence, our efforts focus on the pursuit of more constructive confrontations. This has led us to apply the considerable expertise of the conflict resolution field in a way which we believe will enhance its usefulness to both disputants and third parties, even those who are involved in unavoidable win-lose or other intractable conflicts.

The first step in this reframing process has been a shift to an incremental approach. Rather than focusing upon the often unrealistic goal of comprehensive resolution, we focus on making as many incremental improvements to the confrontation process as possible. Here, for example, we want to help the parties limit misunderstandings, engage in more successful fact-finding, reduce the level of escalation, and increase reliance on persuasion-based approaches, while reducing the use of force-based strategies for achieving one's interests.

Another element of our suggested reframing encourages the parties to take a long-term view of the underlying conflict, and not focus exclusively on short-term dispute episodes. For example, the underlying conflict between environmental and water development interests is played out in a series of disputes revolving around such things as the permitting of a new reservoir, the implementation of a water conservation program, the protection of endangered species, the control of population growth, and the siting of large new industrial facilities. While some of these disputes may be resolved by voluntary agreement, most are resolved on the basis of legal, political, or other power contests.

Our interest lies in making all of these mechanisms as constructive as possible. This involves the minimization of transaction costs -- including non-economic as well as economic costs--, and the maximization of the benefits of conflict. (Such benefits include broadening parties' understanding of and knowledge about the complexities of an issue and the parties involved, developing new approaches to addressing problems, and improving internal cohesiveness which can lead to more effective group functioning.) For example, to minimize costs of conflict, we seek ways to improve (rather than further damage) relationships; ways to avoid unnecessary delays, financial costs, technical errors, and even physical violence. We encourage parties to analyze the conflict and the contending parties carefully before planning a strategy that can not only succeed over the short term, but also over the long term. We encourage consideration of the legitimacy of particular positions and procedures, and encourage parties to develop a confrontation strategy that is most likely to be regarded as both fair and effective.

RECOGNIZING THE UNAVOIDABLE ROLE OF POWER

Many people have told us that alternative dispute resolution (ADR) processes provide a more equitable distribution of power, or are processes in which parties "leave power at the door." This is seldom true. Since most ADR processes are voluntary, parties have the right to walk away from any ADR process at any time to pursue legal, political, or other power-based alternatives which they think will yield a superior outcome. Thus, parties with such alternatives have more power than parties without them. Likewise, parties with more technical expertise, negotiating skills, and political, economic, and social support have more power at the negotiating table than those who lack these benefits.

Therefore, the most realistic goal for alternative processes is to find lower-cost ways of reaching decisions which parallel those likely to be produced by conventional power contests. While this approach admits that there is some truth to the charge that alternative processes "sugar-coat" existing inequities, ADR still provides many options for advancing the position of all parties over what they likely would have received from traditional power-based approaches. It also provides opportunities for positive side effects, such as improved trust or inter-group communication, that is not obtained in traditional power-based approaches.

SEPARATING ADVOCACY AND NEUTRAL ROLES

There are many things that mediators and other neutrals can do to increase the constructiveness of unresolvable conflict. By providing a process and structure for constructive dialogue, third parties can facilitate the development of improved understanding. They cannot, however, alter the existing power balance between parties. Realizing the importance or power balancing, many mediators try to engage in limited empowerment efforts to equalize the power between the low- and high- power groups.

However, one's effectiveness as a neutral diminishes

sharply as one pursues empowerment efforts. If taken too far, empowerment can lead to a dramatic deterioration in the credibility of the neutral intervenor, and powerful interests may simply refuse to participate in, or withdraw from, alternative processes.

To circumvent this problem, we have suggested the creation of a new class of conflict professionals who might be called "constructive confrontation advisors". These advisors would apply their knowledge of conflict processes from the perspective of advocates rather than intermediaries. Such advisors would supplement the work now being done by political and legal advisors by providing expertise on alternative dispute resolution processes and the larger context of social conflict. They would teach the parties how neutral intervenors and dispute resolution processes can be used to better advance their interests.

PRESENTING THE FIELD FROM A FIRST PARTY, RATHER THAN A THIRD PARTY, PERSPECTIVE

It is no accident that the only book to have made the New York Times Bestseller List from the conflict resolution field (Getting to Yes by Roger Fisher, William Ury, and Bruce Patton), is written from a first, rather than third-party, perspective. While conflicts are viewed by a large part of society as a destructive force that needs to be managed, disputants usually see conflicts as the only hope for advancing their vital interests. As such, they are likely to strongly resist compromise efforts that fail to meet their needs. In our experience, we've received a decidedly cool response from advocacy groups to Consortium programs based on the compromise and resolution model. However, when we reframed our program to focus on constructive confrontation, enthusiasm increased markedly.

Since it is the parties who ultimately determine whether or not more constructive options will be implemented, it is imperative that we be able to present the field's insights and benefits from a first-party perspective. This is especially true for strategies designed to deal with irreconcilable differences. What follows is a brief overview of the details of our constructive confrontation approach as we have presented it to advocacy groups. The material is presented in a way which explains to advocates how constructive confrontation can be used, along with or instead of consensus-building techniques, to advance their interests.

ELEMENTS OF EFFECTIVE ADVOCACY

Effective advocacy, we submit, is based on a three-pronged approach: persuasion, negotiation, and threat. Persuasion, of course, is the foundation of advocacy—if advocates cannot make strong persuasive arguments, they will not be able to build significant support. Yet, persuasion alone is seldom effective. It needs to be supplemented with force — litigation and political action being the two most commonly used in the environmental arena. Used alone, however, forced-based strategies do not always yield expected or desired results. They tend to generate a backlash among opponents, as people resent being forced to do things against their will. Thus, effective advocacy tries to minimize the use of force, and relies as much as possible on persuasion, as well as exchanges arranged through negotiation and other consensus-based strategies. The goal is a three-pronged approach, which we call a "confrontation strategy mix."

Since each conflict and advocacy effort is different, no ?one-size-fits-all" approach will work. For this reason, we focus on an examination of typical problems which are likely to be encountered in difficult conflicts, and an exploration of options for dealing with these challenges. We expect different people in different situations to choose from available options to find the ones that best meet their needs. In the short space available, we cannot provide detailed information on all of the choices advocates might face, but we can illustrate a new way of thinking about confrontation, advocacy, and consensus. Our approach focuses on three key issues: limitation of conflict overlay problems, combining persuasive and adversarial approaches to advocacy efforts, and pursuing opportunities for consensus agreement. We discuss each of these briefly below.

Part I: LIMITATION OF CONFLICT OVERLAY

PROBLEMS

We find it useful to distinguish between core issues and a series of "conflict overlay" problems — mis understandings, fact-finding problems, procedural controversies, and escalation. These overlays are common conflict dynamics which, while not directly related to the core issues, frequently transform the conflict in very destructive ways and prevent constructive confrontation of the core issues. One of the great benefits of conventional consensus- building processes is that they are usually structured in a way that minimizes these overlay problems. For this reason, participation in consensus-type processes can be valuable, even when agreement is not expected. Similar techniques can be used outside formal consensus-building processes to minimize the impact of these overlay problems, even in adversarial situations. While complete elimination of overlay problems is an unrealistic goal, they can usually be significantly reduced. In some cases, of course, the activities which produce overlay problems may have benefits which outweigh their costs. However the choice to pursue these options should be made intentionally, not by default. Examples of overlay problems include:

· Misunderstandings

Misunderstanding is ubiquitous in conflict for many reasons. Disputants seldom communicate clearly, and opponents tend not to listen effectively, preferring to rely on stereotypes and assumptions. Add to these factors differing values, cultures, and lifestyles, words spoken in anger and heard in fear — all of these problems contribute to communication errors which cause people to focus attention on illusory problems, and not the core issues or potential areas of agreement.

· Fact-Finding Problems

While environmental problems often involve much scientific uncertainty, there is still a core of real, verifiable knowledge which can usually be brought to bear upon an issue. However, each side often presents its own scientists who dispute the findings of the opponents' scientists. This contradictory-experts problem leaves decision makers and the public unable to identify and use valid scientific judgements. In frustration, they often ignore all the scientific evidence, deciding on the basis of emotions, not facts. Consensus-building techniques can help the parties engage in joint fact finding in an effort to develop answers to factual questions which are credible to all parties.

· Procedural Issues

In democratic societies, people don't always expect to win, but they do expect to be treated fairly. If decision-making procedures are seen to be unfair, people quickly assume that their vital interests are being threatened. Angry confrontations over procedural problems can quickly supplant a discussion of substantive issues as the principal focus of debate. A variety of techniques are available for dealing with this problem.

· Escalation

The most destructive of the overlay problems, escalation feeds upon the above three problems while adding some perverse dynamics of its own. The basic mechanism begins with a relatively minor intentional or accidental provocation. This in turn provokes a more forceful response, which begets an even greater provocation. The result is an explosive cycle that can transform honest differences over important substantive issues into highly personalized confrontations, where distrust and hostility replace all substantive debate. Not only can this process make voluntary agreements impossible, it can transform adversarial situations into long- term enmities with a continuing series of expensive and destructive confrontations which no one ever really wins.

Unfortunately, escalation is often deliberately initiated as a strategy for mobilizing support. However, this strategy also tends to mobilize support for opponents. The result is a more intense conflict, but often little change in the relative power balance. For this reason, we feel that escalation should be limited wherever possible. Mobilization efforts need to based on an honest presentation of the facts, rather than inflammatory and misleading efforts to paint opponents in the worst possible light.

While there are cases where correction of the above problems will, by itself, make consensus possible, there are many other situations in which differences over core issues are so deeply felt that continuing confrontations will be inevitable. In these cases, limitation of the overlay problems will still serve a very constructive role by helping to focus debate on the core issues.

Part 2: COMBINING PERSUASIVE AND ADVERSARIAL APPROACHES TO CORE ISSUES

Advocacy groups should only participate in collaborative processes when these processes are likely to offer them better results than traditional adversarial and persuasive approaches. In order to make such a judgement, advocates need to understand the costs and benefits of alternative approaches. They should also consider how all three approaches can be combined to yield the best of each. Factors to consider in assessing alternative advocacy strategies include the following:

· The Backlash Effect

The biggest problem with adversarial or force-based approaches is that they attempt to force people to do things against their will. This often provokes much resentment, which breeds a powerful backlash. This backlash then leads opponents to devote considerable resources to finding ways to reverse the situation at the earliest opportunity. This creates a paradoxical situation in which a short-term ability to impose one's will on an opponent may actually undermine prospects for long-term success.

· Importance of Taking a Long-Term View

One key to the success of any type of adversarial (or advocacy) process is an understanding of the long-term nature of most conflicts. It is important to resist the common illusion that this battle (this court case, this election, etc.) will resolve an issue once and for all. While siting decisions (over the construction of a ski areas, for example) are relatively final, there will always be future debates concerning the next development. Decisions to protect a habitat, to clean the water or the air, or to establish a growth-control policy can all be reversed in the future.

Thus, it is important that advocates be able to anticipate and plan for a continuing series of confrontations. This means that they need to evaluate their strategies in terms of their effects on the immediate confrontation, as well as on future disputes.

· Legitimacy: the Key to Limiting Backlash

The backlash effect is likely to be much more powerful if there is a widespread impression that force is being employed for purely selfish purposes or in illegitimate ways. To combat this problem, it is important that the use of force be minimized as much as possible, and that its use be justified with persuasive arguments.

Part of such legitimization includes a demonstration that there are no less divisive and threatening methods for protecting a group's vital interests. For example, it should be clear that advocacy groups are only pursuing litigation because all other avenues of appeal (including negotiation or consensus building) have failed. If threat-based strategies are used for legitimate reasons utilizing accepted procedures, backlash is likely to be much less severe than if people feel not only defeated, but unfairly treated as well.

· Persuasion

The backbone of effective advocacy is persuasion. To the extent that an advocate's motives are seen as selfish, the level of resentment and opposition can be expected to increase. To the extent they are seen as being legitimate -- in other words, based on logical arguments and commonly-held values -- the more effective they are likely to be.

Part 3: PURSUING OPPORTUNITIES FOR AGREEMENT

Adversarial approaches are generally expensive and divisive processes which often produce relatively crude results that fail to achieve potential win/win trade-offs. The ability to avoid these problems and develop solutions that meet everyone's needs constitutes the principal allure of consensus-building techniques. There are several keys to realizing this potential:

· Understanding EATNAs and Ripeness

As suggested above, it is unreasonable to expect parties to voluntarily accept any type of negotiated agreement if their EATNA (Expected Alternative To A Negotiated Agreement) is better than the expected negotiated settlement. Conversely, if a settlement can be drafted which all the parties feel provides them with a better alternative, then the incentive is to settle.

Prospects for crafting such a settlement rest on the ability of the parties to accurately assess their alternatives. If the parties have similar images of the likely results of adversarial processes, then the incentive is to craft a settlement which closely parallels the expected outcome while avoiding the often considerable transaction costs associated with the pursuit of adversarial contests to the bitter-end.

Such a negotiated settlement is also likely to be able to achieve numerous win/win trade-offs that would not have resulted from the adversarial process itself. (This is because simple adversarial approaches often give parties things that they don't really want, while failing to give them things that they do want and their opponent does not really care about.)

In evaluating their EATNAs, it is important that the parties realistically assess the full transaction costs associated with each adversarial option. It is important to avoid the ?this is going to be a picnic" trap, in which the parties reach an erroneous conclusion that the costs of confrontation are going to be relatively minor and affordable, while prospects for success are very good. Such a trap can lead the parties to forsake a settlement which is really in their best interests.

Negotiation or consensus building is much more likely to succeed when applied on a short-term basis, because it is relatively easy for the parties to assess their immediate options. Over the long term, however, relative power relationships are much less certain, and people do not want to abandon the chance of getting a better deal should the opportunity arise.

Advocates should also remember that consensus-building processes do little to address power inequities. The more powerful will get a better deal in consensus-based processes, just as they would have in an adversarial process. The only way to redress this imbalance is for the less powerful to find some adversarial or persuasive process which clearly boosts their power. Once they do this, they can re-enter the consensus-building process with greater clout.

· Power Contest Shortcuts

There are two ways in which agreement on probable outcome of adversarial power contests can be achieved. First, the power contests can be pursued to the bitter end, leaving negotiators the task of working out the terms of surrender. The alternative is for the parties to use some type of power-contest shortcut to better predict the outcome of likely adversarial processes. For example, contending parties might present their cases in a minitrial or similar procedure to assess the probable outcome of litigation. The result could then be used as a basis for a negotiated settlement. Similarly, well-crafted opinion polls could be used to forecast the results of elections, and test votes could be used to test prospects for legislative success.

When feasible, power-contest shortcuts allow advocates to ascertain likely outcomes of power contests without incurring all the costs. Once relative levels of power are defined, settling disputes through negotiation is usually much easier.

This approach cannot, however, be expected to work in every case. There will be times when the outcome is highly uncertain, and the only way to find out who is more powerful is to pursue the dispute to the bitter end. For example, there are precedent-setting cases that really should be appealed to the Supreme Court, and there are issues which really should be put to a vote of people.

· Pursuing Negotiable Sub-Issues

Social life involves many complex and overlapping relationships. Even in cases where these relationships involve deep disagreements on fundamental moral issues, there are likely to be other aspects of the relationship in which opportunities for cooperation still exist. To the extent that opponents can negotiate or cooperate on sub-issues or unrelated issues, the more they can build interpersonal trust and understanding, thereby improving prospects for effective persuasion and increasing the chances of future agreements.

· Using Effective Negotiation Processes

The existence of win/win opportunities does not mean that the parties will automatically take advantage of them. To do so, they must be able to recognize the existence of potential opportunities, and then move through some type of negotiation, mediation, or consensus-building process to craft an agreement. This requires that the overlay problems (especially escalation) be controlled to the point where a working relationship exists in spite of the deep underlying conflict.

INTERNAL APPLICATIONS

The promise of consensus building between adversaries is limited by the inherent win/lose nature of the relationship. However, the application of these techniques on a "within coalition" basis is much more likely to succeed, as the ability of coalition members to advance their interests will be greatly enhanced by the development of a successful strategic consensus.

While advocacy groups often have a professional staff, they are still fundamentally voluntary organizations whose power depends upon their ability to persuade people that they are providing an effective mechanism for advancing members' interests. As such, the use of consensus-building strategies on a intra-organizational and intra- coalition basis can be extremely helpful.

Intra-coalition consensus-building efforts require the effective control of the same four overlay problems discussed above. For example, miscommunication can easily undermine the coordination and effectiveness of advocacy efforts. An inability to obtain and effectively use technical facts can lead to the pursuit of unworkable goals. When inevitable conflicts arise concerning an advocacy group's strategic choices, it is important that these conflicts be resolved using a process which is generally recognized as fair. Above all, escalation processes need to be controlled before relatively minor disagreements escalate to the point where they can split the coalition.

While the use of consensus techniques to make strategic choices is certainly desirable, it may not always be workable. As a result, some type of alternative process must be in place for making decisions when coalition members cannot agree. Here again, it is important that the decision-making process be viewed as legitimate. Once divisive issues have been settled, it is important to extend an olive branch to the losers, assuring them that they still have a valued place in the organization and will be fully involved in discussions concerning how best to proceed.

CONCLUSION

Constructive confrontation is a way to approach resolution-resistant conflicts that utilizes the best aspects of consensus-based conflict resolution processes, but does not require consensus to be effective. It can be used by disputants themselves, or by third parties who want to help individual or multiple parties confront these conflicts in the most effective way. Rather than replacing negotiation or consensus-based techniques, we see constructive confrontation as a complementary process that can be used when traditional consensus-building has failed or appears unlikely to yield a consensual agreement.