Using Assisted Negotiation Land Use Disputes Full

Using Assisted Negotiation
to Settle Land Use Disputes

A GUIDEBOOK FOR PUBLIC OFFICIALS
Lincoln Institute of Land Policy

113 Brattle Street
Lawrence Susskind
Cambridge, Massachusetts 02138 and the Consensus Building Institute
This report was prepared by the Consensus Building Institute

with support from the Lincoln Institute of Land Policy.
Lawrence Susskind
President, Consensus Building Institute (CBI), and
Professor of Urban and Environmental Planning,
Massachusetts Institute of Technology
Ole Amundsen
Associate, Consensus Building Institute
Masahiro Matsuura
Associate, Consensus Building Institute
Marshall Kaplan
Executive Director, Institute for Policy Research and Implementation,
Graduate School of Public Affairs, University of Colorado at Denver
David Lampe
Research Consultant, Institute for Policy Research and Implementation,
Special thanks to the CBI interns who also assisted:

Robyn Champion, Cassel Kroll, Laura London, Dan Moss,
Eric Paley, Cheri Peele, Shirley Sperling, and Terry Wade
L INCOLN I NSTITUTE OF L AND P OLICY

C AMBRIDGE , M ASSACHUSETTS
Contents
Guidebook
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Study Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Why Use Assisted Negotiation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Some Questions about Its Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
What Are the Risks? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
What Kinds of Preparations Are Required? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Selecting a Qualified Neutral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
What Are the Tasks of the Neutral? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Phases and Steps in Assisted Negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Overcoming Obstacles along the Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Problem-solving Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Case Studies
I. Undertaking a Conflict Assessment: West Chester, Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. Selecting Stakeholders: Louisville, Kentucky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10
III. Training the Participants: Hampton, Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. Setting an Agenda and Sticking to It: Rowley, Massachusetts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
V. Establishing an Advisory Committee: Island City and LaGrande, Oregon . . . . . . . . . . . . . . . . . . 18
Appendices
A. CBI Study Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. Resources for Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
C. Further Readings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
D. About the Study Sponsors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inside Back Cover
© 1999 Lincoln Institute of Land Policy

113 Brattle Street
Cambridge, MA 02138-3400
ISBN 1-55844-134-4
Second Printing, August 2003
Book and Cover Design: Studio N
All rights reserved. No part of this report may be reproduced in any form by electronic or mechanical means (including photocopying,
recording, or information storage and retrieval) without permission in writing from the publisher.
Introduction
• Are you about to update your community’s master plan?

• Are you planning to run a public meeting on a controversial project?
• Are you negotiating with a developer over the details of a subdivision plan?
• Are you trying to balance environmental and economic development interests?
• Are you dealing with transboundary disputes with neighboring communities?
If you answered “yes” to any of these questions, this Guidebook may help you learn how other communities
and regional agencies throughout the United States are approaching these kinds of land use disputes in a
new way.
Land use issues are becoming more and more complex, and it is often difficult for public officials to
balance the contending forces of environmental protection, economic development and local autonomy.
Polarization all too often leads to litigation, and the courts are not interested in reconciling legitimate
differences in perspective.
We have found that sharing ideas and experiences among peers is a potent source of innovation in
dispute resolution, as in other situations. For example, elected officials are more likely to pick up new
ideas from one another than they are from the published work of academics or policy analysts. Similarly,
business leaders and neighborhood activists are more highly influenced by the suggestions and recommen-
dations of their respective colleagues.
To gain insight into these various perspectives in the case of land use disputes, we undertook an in-
depth investigation of 100 communities around the United States that used assisted negotiation. Since
different stakeholders perceive events differently, we interviewed all major players in each of the 100 case
studies in order to provide outsiders with a full and rich understanding of the process.
Complementing the quantitative results of more than 400 interviews, five selected case studies in this
Guidebook illustrate how assisted negotiation has been used effectively. Each case is linked with a differ-
ent step in the assisted negotiation process.
While facilitation and mediation do not always produce settlements, they appear to be an important
supplement to the traditional administrative, political and legal tools typically used to resolve land use
disputes. With the right kind of help, it is possible to:
• write new comprehensive plans that can gain community-wide support;
• find consensus even in the face of serious conflict;
• balance environmental and economic concerns; and
• improve relationships with neighboring communities.
We hope that this study of the attitudes and experiences of citizens, developers, public officials and
other stakeholders who have used assisted negotiation to solve land use disputes in different parts of the
country will prove instructive to others in similar circumstances.
USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 1

Glossary
Arbitration is a voluntary but highly structured adjudicatory process. Arbitrators make binding decisions.
Assisted negotiation isa catch-all term for processes that use a neutral party to assist participants in re-
solving disagreements or reaching consensus. Arbitration, facilitation and mediation are all forms of as-
sisted negotiation.
BATNA (Best Alternative To a Negotiated Agreement) is the most likely outcome if no agreement is
reached through negotiation.
Conflict assessment isa way to gather essential information to determine whether or how an assisted ne-
gotiation effort should proceed.
Consensus refers to a settlement that all the stakeholders can live with. Consensus does not necessarily
imply that all the participants are completely satisfied.
Consensus building is a set of techniques used to help diverse stakeholders reach agreements. Nonparti-
san professionals facilitate this process.
Facilitation is a general term for problem-solving conversations assisted by a neutral party. The role of the
facilitator is to keep the parties on track during meetings.
Mediation is a way to resolve disputes that relies heavily on the assistance of a trained neutral acceptable
to all parties. Unlike an arbitrator, a mediator is not responsible for deciding anything. As a general rule
of thumb, mediation includes the tasks of facilitation.
Single-text procedure isa way to articulate a written agreement and is often used in international treaty
making. Parties negotiate on only one draft agreement prepared by a neutral.
If you answer “yes” to at least 6 of the 8 questions below, then you should consider using assisted negotiation:
1. Are the issues in your land use dispute clearly 5. Are the issues of significant public concern?
defined? 6. Is the public frustrated with how the dispute has been
2. Are the key parties willing to talk about a possible handled thus far?
settlement? 7. Is the government agency involved losing public trust?
3. Is the outcome of the dispute uncertain if no 8. Are some of the parties involved likely to have long-
agreement is reached? term relationships?
4. Are the stakes high?
2 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Study Summary
The Consensus Building Institute (CBI) initiated a study in 1997 to evaluate the use of assisted negotiation
in local land use disputes throughout the United States. The research team contacted 25 leading land use
mediators to solicit cases (both successes and failures) that would be instructive for public officials in other
communities. All of the disputes took place between 1985 and 1997.
CBI used several criteria in selecting 100 of the 147 suggested cases for further study:
• a neutral party had to be involved in trying to resolve the dispute;
• the case had to take place at a local or regional level; and
• the case had to involve multiple parties engaged in a serious dispute.
CBI staff completed over 400 confidential interviews with key participants in each case. The findings
and recommendations presented in this Guidebook are based on the experiences of participants in all
100 cases. Eight of the cases were selected for intensive on-site investigation by CBI’s research partner,
the Institute for Policy Research and Implementation at the University of Colorado at Denver. Four of
these eight cases are summarized in this Guidebook, as well as another case study from CBI’s research.
Most participants in the study had a positive view of assisted negotiation: 86 percent of participants
viewed the process either very favorably or favorably and 85 percent thought the mediator or facilitator
played a crucial or important role in contributing to the success of the process. (See Figures 1 and 2.)
Nearly two-thirds of the disputes were settled, but even in the unsettled cases, 64 percent of partici-
pants who viewed their dispute as unresolved thought that the assisted negotiation process had helped
the parties make significant progress.
FIGURE 1. How Would You Rate the Process in General? FIGURE 2. How Important Was the Mediator?
Very favorable: Favorable:

46% 40%
Crucial: Important:
60% 25%
Total answering Unfavorable: 9% Total answering

“very favorable” Very unfavorable: 3% “crucial” or Not important: 4%
or “favorable”: Neutral: 2% “important”: Somewhat important: 11%
86% 85%
An explanation of the study methodology and analysis of the results are summarized in Appendix A to this report starting on page 19.

Why Use Assisted Negotiation?
Obtain the best available information
Assisted negotiation can address extremely technical matters through joint fact-finding. Its purpose is to
develop a shared base of knowledge and to focus discussions on the interpretation of the information
available, not to debate the facts themselves. This process should ensure that the best available informa-
tion is taken into account.
Save time and money
The parties can realize cost savings by reducing the need for dueling expert witnesses and legal advisors.
Assisted negotiation, more often than not, appears to save the parties money while producing agreements
that are at least as satisfying as those generated through more traditional means. By addressing issues in
greater depth, future conflicts may be avoided.
Increase compliance
Many agreements reached through assisted negotiation include self-enforcing mechanisms to ensure
compliance. Increased trust achieved through the search for mutually beneficial outcomes encourages
parties to comply with the spirit of the agreement as well as the letter of the law.
Improve relationships
Assisted negotiation brings together a wide range of stakeholders. The relationships built as a result of
face-to-face communication help combat stereotypes and increase understanding.
Resolve future problems more easily
When relationships are enhanced, future conflicts are more likely to be contained and managed effectively.
Minimize political risks
Assisted negotiation processes reduce the vulnerability of public officials to charges of acting unilaterally
or of being out of touch with the public interest.
Increase confidence in government
If the community believes that the issue was handled fairly, the public will have increased confidence that
other difficult issues will also be handled well.

Some Questions about Its Use
Is assisted negotiation always legal?
The federal Alternative Dispute Resolution Act of 1998 formally recognizes and encourages the use of
assisted negotiation. Many states have enabling legislation to encourage the use of assisted negotiation in
land use disputes. However, assisted negotiation is not a substitute for public involvement, required
public hearings or other types of mandatory consultation. Also, federal officials should take into account
the Federal Advisory Committee Act (FACA) when agreeing to get involved in local land use decisions
involving federal agencies.
Isn’t it expensive?
Not really. While there are costs involved, they amount to a lot less than the cost of litigation if no agree-
ment is reached. Several states have grant programs to help underwrite the costs of assisted negotiation.
Increasingly, foundations are also providing funds. Parties in an assisted negotiation process often agree
to share the costs involved.
Isn’t assisted negotiation just a fad?
No. The 1973 settlement of a dispute over flood control on the Snoqualmie River in the state of Washington
is widely viewed as the first public policy dispute that was mediated successfully. The steady growth of
the use of assisted negotiation has been accompanied by an increasing amount of theoretical work on
resolving such conflicts. Today, many leading universities, law schools and business schools offer courses
in assisted negotiation, and the process is widely accepted in both private and public sectors.
Won’t elected officials be giving away their legal authority to act if they agree to participate in
consensus building efforts?
Often assisted negotiation processes involve informal discussions or processes that parallel formal decision
making. Hence, public officials are not delegating their decision-making authority. Rather they are
participating in focused discussions that can help improve formal decision making.
What if the parties don’t trust each other?
It is not unusual to distrust other parties in a conflict. Often, by improving communication and meeting
in a less formal setting, distrust can be diminished. The use of ground rules can safeguard against
untrustworthy behavior.
What if legal precedents need to be set?
There may be issues that need to be clarified by a court decision. However, by entering into an assisted
negotiation process, parties do not give up their right to sue subsequently or to file an appeal in court.

What Are the Risks? Conflict Assessment
Conflict assessment is the key tool for anticipating
the risks and problems associated with assisted
Assisted negotiation may take considerable time
negotiation. The chart below illustrates how a
Overcoming years of distrust to produce an conflict assessment is usually conducted (typically
agreement is not easy. A consensus can reduce by a professional neutral).
the risk of protracted litigation, but it is much
harder to find a solution acceptable to almost INITIATE a conflict assessment
everyone. Decisions produced by assisted nego- • Make a preliminary list of issues to explore
tiation may still have to be approved through • Develop an interview protocol
formal decision-making processes, such as a • Arrange confidential, one-on-one interviews
public hearing or a public comment period. with all relevant stakeholders

▼
Lack of experience may cause misunderstanding GATHER information through interviews
and resistance • Explore stakeholders’ key concerns and interests
Some public officials may feel awkward about • Assess stakeholders’ willingness to “come to
opening up decision making to all stakeholders. the table”
It is important to offer training for all partici- • Identify additional stakeholders to interview
pants and to stress that all final decisions remain ▼

ANALYZE interview results
with those who have statutory responsibility.
• Summarize concerns and interests without
Organizations must be committed to the process attribution
A land use dispute can be made worse if a party • Map areas of common and opposing interests
is allowed to walk away from its promises. Public • Identify potential opportunities for mutual gain
agencies, in particular, are vulnerable to this con- • Identify obstacles to reaching agreement
cern because of staff changes resulting from the • Estimate the potential success of a facilitated
political cycle. If participants invest a consider- dialogue
able amount of time in the process only to see ▼

DESIGN a joint problem-solving process
the public agency not honor its commitments, (if appropriate)
the process will only increase the level of public • Identify stakeholder groups that would need
cynicism. Representatives from other parties, like to be involved
community organizations and private companies, • Draft a work plan for addressing key issues
should also keep their promises as organizations. • Draft ground rules for constructive
It is important to think hard about whether your communication
organization can really stick to its agreements, • Estimate the costs of supporting the process
before agreeing to participate.
▼
SHARE the assessment with interviewees
Professional neutrals must be chosen with care
• Distribute a draft report
Neutrals have different styles and different levels • Ask interviewees to verify its accuracy and
of ability. For example, some neutrals have pas- completeness
sive styles that may not be “strong enough” for • Incorporate suggested changes and finalize
certain situations. Also, the cost of their services the report
will vary, so you should consider your budget • Assist the sponsor and others in agreeing on
constraints. The field of assisted negotiation is whether to proceed with a facilitated problem-
extremely competitive, so you should be able to solving process
find a neutral who meets your needs. © 1998 Consensus Building Institute, Inc.

CASE STUDY I: UNDERTAKING A CONFLICT ASSESSMENT
Not In My Backyard: West Chester, Pennsylvania

Case Summary
“We felt that mediation was a good way to reach out
A proposed homeless shelter divided the residents of to the business community one more time, to
West Chester, Pennsylvania. For two winters in the demonstrate that we were responsible, that we
early 1990s, a temporary shelter was operated by a cared about them, and that we were willing to meet
local nonprofit organization, Safe Harbor, Inc. The some of their concerns.”
shelter was hosted by a different church each month to
Jane Varley, Vice President, Safe Harbor
avoid permit requirements that would otherwise have
been imposed by the county government.
During this time, Safe Harbor evaluated several be a good neighbor. The representatives of the business
potential sites for a permanent facility and in 1994 community signed an agreement recognizing that there
found an abandoned downtown garage that had the was a “pressing need” for a shelter and that the proposed
necessary space to serve the homeless population. location was the most appropriate one. The agreement
Local business owners were alarmed at the prospect of ended with a motto coined by one of the original oppo-
a downtown shelter and felt deeply frustrated by the nents: “Together we can do it.” The shelter has been
fact that a shelter was allowed under existing zoning. operating smoothly for four years and has been allowed
To calm these fears, Safe Harbor held two public to expand its operations to 24 hours a day.
breakfasts with business leaders. However, the meet-
Commentary
ings were very tense and did little to reduce the con-
cerns of the shelter’s opponents. Before the parties had their first mediation session,
Wendy Emrich of PennAccord Associates prepared a
In response to growing tensions, Chester County
conflict assessment. Although the major participants
Commissioner Andrew Dinniman suggested media-
were easily identified, Emrich thought that a conflict
tion. A team of three mediators was hired by the county
assessment was needed to build trust in the mediation
government to do a conflict assessment and to mediate
process. At the time mediation was suggested, tensions
the dispute. A series of four meetings focused on the les-
were high and many influential citizens felt that they had
sons that could be learned from other communities with
wasted their time attending previous informal breakfast
downtown shelters and on the design of the shelter.
meetings. It was very important that stakeholders be-
Through a combination of one-on-one meetings lieved that the mediation process was worth their time.
and group meetings, the mediators were able to
Emrich began by holding a confidential meeting
encourage participants to clearly state their concerns.
with each key party. During the meetings, she asked if
A major issue was that Safe Harbor was proposing a
there were other people who should be consulted, and
24-hour facility offering a range of services that went
she subsequently conducted phone interviews with
beyond just a bed for the night. Shelter advocates
these additional sources. Based on the recommenda-
argued that job training and counseling services were
tions generated by the pre-mediation meetings and
a crucial part of an effective shelter program.
interviews, an agenda was fashioned and several
As part of the agreement that emerged, Safe Harbor outside experts were identified and invited to make
promised to confine its operation to evenings, while presentations. Through the conflict assessment pro-
stating that a 24-hour shelter was still a long-term goal. cess, the parties gained confidence that their concerns
Further, Safe Harbor issued a statement of commitment would be addressed and they became more willing to
to the surrounding community as a way of pledging to participate in the mediation sessions.

What Kinds of Preparations Are Required?
Identify stakeholders
You should have a good sense of all the possible stakeholders because the neutral will use your initial list
to prepare a conflict assessment. In addition, you should think carefully about who will represent your
organization in the dialogue.
Evaluate your and others’ BATNAs
Best Alternative To a Negotiated Agreement (BATNA) is the most likely outcome if no agreement is
reached. If your BATNA looks better than all possible negotiated agreements, you should not join in an
agreement. In addition, consider the BATNAs of the other parties. If they seem to estimate their BATNA
higher than any negotiated agreement, they will be reluctant to come to the table.
Articulate your interests and explore the interests of others
Interests are not the same as positions. Parties usually commit to positions, which are based on their
interests. For example, a party might say “This use of land is not acceptable!” This statement is a posi-
tion. “Because we think economic growth is imperative” may be their interest. You should be clear about
your interests to be an effective negotiator. Also, you should try to estimate the interests of other parties.
List your and other officials’ mandates and constraints
Your organization may be restricted by legislation from agreeing to certain things. For example, you may
be required to hold a public hearing before agreeing to a proposal. Thus, you should make a list of your
constraints before beginning an assisted negotiation. If other officials can affect your decisions, you need
to think about their mandates as well.
Think carefully about constitutional rights and values
It is very difficult to resolve disputes over rights or values using assisted negotiation. For example, those
who believe strongly in private property rights might not agree to negotiate at all because they may not
recognize the legitimacy of government planning. Questions involving constitutional rights should be
clarified in court before assisted negotiation can be used effectively.
Mobilize your organization to be prepared
What information have you gathered? In assisted negotiation, you and other parties will investigate scien-
tific and technical issues together. You need to be prepared to say what you know about technical matters
and how you came to hold these views.
Preparation Checklist 4. Have you thought of things you can prepare to

meet your interests as well as theirs?
1. Did you make a list of all the obvious 5. Did you make a list of your and other organiza-
stakeholders? tions’ mandates and constraints?
2. Did you analyze what no agreement really 6. Are you sure that the dispute does not involve
means for you and for them? important constitutional questions?
3. Did you list your most important concerns and 7. Have you shared items 1 to 6 above with others in
the likely concerns of other parties? your organization and can you move forward with
a clear mandate?

CASE STUDY II: SELECTING STAKEHOLDERS
Regional Infrastructure Investment: Louisville, Kentucky

Case Summary
“We, the KIPDA staff, didn’t want people with little or
For twenty years the residents of Louisville, Kentucky, and no knowledge of transportation issues to have the
the surrounding region were embroiled in a debate same vote as the more experienced members. This was
over selecting a location for a new bridge over the Ohio probably a mistake.”
River. The city of Louisville wanted a downtown
Norm Nezelkewictz, former Executive Director, KIPDA
bridge, but other interest groups supported a suburban
location. Several transportation studies were conducted,
yet none was accepted by all the stakeholders. After a year and a half, the ORMIS committee
recommended building both a downtown bridge and
Elected officials and staff at Kentuckiana Regional a suburban bridge. In addition, a major downtown
Planning and Development Agency (KIPDA covers highway interchange would be modified and improve-
both Kentucky and Indiana) decided in 1994 to use a
ments would be made to the city bus service. The ORMIS
facilitated process to produce a definitive solution to
committee report is nonbinding and leaves many imple-
the bridge impasse. The search for a facilitator was
mentation and funding issues unanswered. Currently,
part of a larger Request for Proposal (RFP) for the
preparation of the Environmental Impact Statement is
Ohio River Major Investment Study (ORMIS).
getting underway for the two proposed bridges.
While the RFP process was under way, the KIPDA
Commentary
staff took the lead in selecting participants for a core
group known as the Transportation Policy Committee. Significant problems arose in the ORMIS process
This committee then selected the 45 members of the around the selection of stakeholders and the allocation
ORMIS committee, and divided the committee into of voting privileges. Many stakeholders believed that
voting and nonvoting members. At this point, a facili- advocates for opposing bridge sites had stacked the
tation team was hired. membership of the committee. Thus, one of the first
recommendations from the facilitation team was to
Since the ORMIS committee had members with
expand the ORMIS membership. The core group
different levels of technical training and very different
voted in favor of this recommendation and six stake-
interpretations of the transportation data, the facilita-
holders were added. However, there were still some
tion team held small breakout sessions to review tech-
stakeholders who felt left out, including the City of
nical matters. Also, facilitators worked privately with
Prospect, which hosts one of the potential bridge sites.
several stakeholders, offering guidance on how to par-
City officials wanted to participate, but were told that
ticipate more effectively in the discussions. Since the
their interests would be represented by the Jefferson
contract for the facilitators was part of the larger tech-
County League of Cities. Several participants believe
nical study, the facilitation team was well positioned
that the City of Prospect may file a lawsuit regarding
to supply technical information to participants. Based
the bridge project.
on stakeholders’ recommendations, a variety of new
modeling assumptions were used to forecast the im- ORMIS members were divided into voting and non-
pact of different proposals. For the first time in the voting categories. While the facilitator recommended
history of the dispute, light rail was considered as an that the committee change this practice, his recommen-
alternative means to reduce congestion. The ORMIS dation was not accepted. The result was considerable
process explored a much wider range of alternatives suspicion on the part of nonvoting members that their
than previous studies. views were not being considered seriously.

CASE STUDY III: TRAINING THE PARTICIPANTS
Highway Location and Comprehensive Planning: Hampton, Virginia
“Training creates norms and expectations on the asked a technical question, the facilitator tracked down
part of participants that carry the process the appropriate city employee or found a consultant to
through difficult times.” address the issue. Between this joint fact-finding effort
and the training provided by the city, all stakeholders
Bill Potapchuk, trainer
were able to fully participate in detailed discussions of
proposed alternatives. According to local planning
Case Summary officials, the end result was a comp plan that was
substantially better than all previous plans.
The City of Hampton, Virginia, has integrated facilita-
tion and consensus building activities into its regular The solution came from a neighborhood representa-
planning process to update its comprehensive plan tive on the working group. The city bought the land it
(comp plan) and draft neighborhood plans. However, needed for the highway, yet classified it as park land. If
the use of facilitation did not come easily for Hampton. the city wants to use the land for a highway in the future,
it will have to reclassify the land, triggering a public
Since the 1950s, the city has debated the inclusion of
involvement process. Furthermore, the group created
a proposed east-west highway in its comp plan. Each
criteria to determine if a new highway is needed. A com-
time the city’s planning department has proposed the
munity panel will review each application of the criteria.
highway, residents in surrounding neighborhoods have
Both the planning commission and the city council
forced its removal from the comp plan. Residents were
approved the updated comp plan.
particularly upset that they were not consulted more
fully by the planning department. Finally, in 1987, the Commentary
city manager decided to use a facilitated consensus
A key element in the success of the Hampton effort
building process to resolve the highway issue.
was the training offered to stakeholders at different
An initiating committee was formed by representa- points in the process. The city hired Bill Potapchuk,
tives of the neighborhood associations, business inter- now with the Program on Community Problem-Solving,
ests and the city government. A professional facilitator to run a series of training exercises, the first with the
was hired to train the stakeholders and city staff on initiating committee. Since the highway problem had
how to participate in and run the process. After the been around for years, participants needed to learn
initial training, the assistant city manager, Mike how to think about it in a new way. Potapchuk helped
Monteith, was assigned the role of facilitator. The the parties see the opportunity to address not only the
committee formed a working group with expanded proposed highway but other issues facing the commu-
membership to focus on the entire comp plan. The nity as well.
working group met once a week for a year. During the
With the convening of the working group, the second
first six months, the city trained the stakeholders in
phase of training began. For some participants it was
the basics of transportation planning.
both their first exposure to shaping public policy as well
Since the highway issue had been very heated, as their first experience in a facilitated process. Potapchuk
Monteith established ground rules so that participants began by walking the participants through the various
would “value each other.” According to participants, steps in a consensus building process. Through a series
the facilitator was crucial in coordinating the flow of of presentations, participants learned about their roles
information among different city departments and in the process. Role-playing exercises were also used to
members of the working group. When a representative help stakeholders practice negotiation techniques.

Selecting a Qualified Neutral
The case studies and interviews in this study confirm that hiring a professional neutral is as straightfor-
ward as hiring any other contractor or consultant. Often municipalities issue a Request For Proposals
(RFP) from potential facilitators or mediators. Following are some items that should be addressed:
• background information on why the assisted negotiation process is needed and a review of events
leading up to the process;
• a list of expected tasks and services to be performed under the contract;
• the expected products of the process;
• the criteria by which responses to the RFP will be evaluated.
Nearly 30 states have offices of dispute resolution and most of them maintain a list of qualified
neutrals. Many universities and law schools also have programs in dispute resolution and offer assisted
negotiation services. (See page 24 for a list of dispute resolution resources.)
Things to consider in reviewing candidates
• Is the candidate perceived as neutral by all potential stakeholders?

• Is the candidate able to hear your concerns, as well as those of other stakeholders?
• Can the candidate separate personal values from the concerns and interests of the parties?
• How does the candidate intend to deal with participants who lack confidence or lack the technical
training to participate in the process?
• What substantive knowledge does the candidate have about the issues involved?
• How has the candidate approached similar problems in the past?
• Does the candidate have any expectations regarding his/her role and the desired outcome?
• How does the candidate view his/her responsibility for meeting logistics?
• How does the candidate estimate the cost of his/her services?

What Are the Tasks of the Neutral?
In many cases people are confused over whether they need a mediator or a facilitator. When considering
the use of a professional neutral, it is important to think in terms of how much responsibility you want
the neutral to have for the process. A mediator is usually responsible for the resolution of the dispute,
while a facilitator is more focused on the efficiency of meetings. Also, consider how much interaction you
want the professional neutral to have with the participants.
What both a mediator and a facilitator do:
• Identify stakeholders: They make an assessment of who has a stake in and should participate in the
process.
• Manage meetings: They are proficient in increasing the efficacy of meetings, especially in confron-
tational settings.
What a mediator does, and what a facilitator might do:
• Bring stakeholders to the table: By explaining the assisted negotiation process, a mediator can try
to persuade those who are reluctant to participate.
• Meet with the press: A mediator can serve as the spokesperson for the process. The mediator pro-
vides an objective assessment of the process and minimizes misunderstandings resulting from press
coverage of the issues at hand.
What a mediator does, but a facilitator does not do:
• Conduct shuttle diplomacy: Mediators often meet with the parties privately to convey confidential
messages and to explore “trades” agreeable to all.
• Prepare a draft agreement: Mediators often produce a draft for the participants to consider.
FIGURE 3. Tasks of Mediators and Facilitators
Mediator Facilitator
Identify stakeholders Yes Yes
Bring them to the table Yes Maybe
Manage meetings Yes Yes
Meet with the press Yes Maybe
Conduct shuttle diplomacy Yes No
Prepare a draft agreement Yes No

CASE STUDY IV: SETTING AN AGENDA AND STICKING TO IT
Mixed-use Development: Rowley, Massachusetts

Case Summary
“Whether it’s a mediation or a large-group
After the collapse of the real estate market in New
consensus-building process, I find that if you agree
England in the early 1990s, the Ipswich Savings Bank
on ground rules and what the issues are, people will
found itself holding 97 acres of developable land,
stick to them. Because the parties know what to
known as Ox Pasture, in Rowley, Massachusetts.
expect, they are able to resolve their issues
Although the land was zoned for commercial use, the
and move on.”
bank, through the Rowley Investment Corporation
(RIC), proposed to build a 100-unit residential Edith Netter, mediator
development, of which 25 percent would be classified

as affordable housing.
The development proposal raised concerns among industrial park. A quarter of the homes would be
local public officials since the land represented one of affordable. In addition, a significant portion of land
the last areas available for commercial development in was set aside as open space. Surrounding wetlands
Rowley. Due to a state law which makes it hard to were protected. To insure compliance, both parties
turn down affordable housing proposals, RIC was agreed to jointly select an outside engineer to review
allowed to circumvent many local zoning restrictions. the plans and monitor construction. While construc-
After a year and half of review, the local Zoning Board tion has not yet started, all of the parties remain confi-
of Appeals rejected RIC’s application, citing wetlands dent that the agreement has successfully addressed all
and traffic safety concerns. The case was appealed to of the issues that blocked the project earlier.
the State’s Housing Board of Appeals, which recom-
Commentary
mended that the parties try to reach a mediated
solution. In the first session, mediator Edith Netter got the par-
ticipants to agree on the issues to be discussed during
The parties decided to use mediation for different
the mediation process. According to Netter, “I said up
reasons. In RIC’s view, mediation was perceived as
front to the parties, ‘We’ll deal with all of the issues
faster and less costly than going through various legal
but let’s get them all out on the table.’ I think that it’s
appeals. On the other side, local officials didn’t like the
pretty unfair when parties bring up new issues towards
prospect of having a state agency impose such an
the end of the process.” The agenda served to focus
important local development decision. So, they agreed
the attention of the parties. Although the process
to enter mediation.
lasted longer than expected (nine months), the partici-
The Massachusetts Office of Dispute Resolutions pants perceived that the mediator kept them on track
arranged for the mediation services of Edith Netter, throughout the deliberations.
an experienced mediator and land use attorney. The
This was a noticeable improvement over previous
parties met over the course of nine months before
public hearings. Several public officials involved
reaching an agreement. In addition to the group meet-
thought that in the public hearings the same issues
ings, Netter met separately with the Rowley Zoning
kept resurfacing with no closure. By contrast, Netter
Board of Appeals (ZBA) and the bank president in
kept the parties focused and greatly minimized
order to handle more delicate issues.
attempts to re-raise previously resolved issues.
The parties agreed to a mixed-use development of
40 single-family homes, with a 20-acre commercial/

Phases and Steps in Assisted Negotiation
In Breaking the Impasse, authors Susskind and Cruikshank suggest three phases in the process of assisted
negotiation: pre-negotiation, negotiation, and post-negotiation. Each involves several steps that need to be
completed. CBI’s nationwide study of land use disputes underscored the importance of addressing each step
effectively.
Phase I: Pre-negotiation
• Getting started: First, a professional neutral conducts a conflict assessment to clarify the issues in-
volved and determine the stakeholding parties in a dispute. The neutral begins by interviewing the
known stakeholders and looking for issues or other stakeholders who may have been overlooked.
• Selecting representatives: The neutral may caucus with a stakeholder group to assist in selecting an
appropriate representative or spokesperson. Agreements made through assisted negotiation can be
easily jeopardized if a representative lacks the authority to make commitments.
• Drafting ground rules and setting an agenda: The neutral helps establish ground rules, which can
include meeting logistics, deadlines and the way to recognize the next speaker at a meeting. An
agenda should also be agreed to by all participants.
• Identifying facts: Participants will come to the process with different levels of technical expertise.
The neutral can help parties identify which facts are clearly known and which are open to debate.
Then, the neutral can help to locate experts to inform all the parties.
Phase II: Negotiation
• Inventing options: A neutral can help the group invent options for mutual gain by facilitating
brainstorming and creating subgroups for in-depth discussion of specific issues.
• Packaging offers: When neutrals find that participants have no additional options to suggest, it is
time to begin building an agreement. The key to reaching agreement is to trade things valued differ-
ently by the stakeholders. However, parties might be reluctant to make offers because they worry
about appearing weak. Thus, mediators often explore possible “packages” privately with the parties.
• Writing agreements: Without a written agreement, participants are free to interpret commitments
differently and might not act as others expect. Furthermore, a written agreement gives each repre-
sentative something to bring back to his/her constituency. Mediators prepare a single text and circu-
late the draft agreement to the parties for review, rather than allowing the parties to prepare their
own drafts.
• Binding the parties: A successful agreement includes mechanisms to bind the parties to the agree-
ment, thus reducing the probability that parties will disavow the agreement later on. Neutrals can
suggest appropriate mechanisms based on their experience.
• Ratifying the agreement: The agreement needs to be ratified by the organizations that sent the rep-
resentatives. Neutrals can help the representatives gain support for ratification by reinforcing how
effectively they argued for the interests of their constituents.

Phase III: Post-negotiation
• Linking the informal agreement and the formal process: The agreement reached in a mediation process
is not a formal decision. It may be necessary to take the negotiated agreement through a variety of for-
mal reviews, depending on the governance structure of the groups, agencies and organizations involved.
• Monitoring: Agreements often include contingency clauses to bind parties, stating what should be
done if various circumstances arise. To keep such clauses intact, a monitoring process is often neces-
sary. Monitoring responsibilities should be shared by all participants.
• Renegotiating: Sometimes changing circumstances lead parties to want to renegotiate an agreement.
The same neutral may be called in again. He/she not only has substantive and procedural knowl-
edge of the negotiated agreement, but also can remind the parties of their earlier intentions and
commitments.
Sample Ground Rules

The following lists summarize ground rules developed by a coalition of representatives from four Maine towns concerned
about air quality and public health issues because of a paper mill in one of the towns.
Administrative Ground Rules Behavioral Ground Rules
• Representation: Identification of key stakeholder • Listen when someone else is speaking to encourage
groups and provisions for adding additional coalition respect among all members
members as needed
• Give others a chance to express their views
• Role of Members: Expectations about regular atten-
• Describe your own views, rather than the views of others
dance, preparation for and participation in discussions
• Encourage discussion, not speeches
• Role of Alternates: Rights and responsibilities of alter-
nate representatives from major stakeholder groups • Speak to the point, not the person
• Role of Other Members of the Public: Guidelines for • Stay on track with the agenda
attendance and participation
• Signal a time-out if ground rules are not being followed
• Communication and Decision Making: Protocol and
• Use a timer to limit individual comments
procedures for speaking and reaching agreement
• Ensure that facilitators can enforce the ground rules
• Role of Facilitators: Responsibilities and tasks of the
outside facilitators • Post a list of outstanding issues and disagreements
• Subcommittees: Established for in-depth discussions For More Information

of specific issues
The Consensus Building Institute’s website
• Outreach: Mechanisms for sharing information with (www.cbuilding.org) offers other examples of ground rules
the media and the general public that have been used in public dispute resolution efforts.
Look under the section “What We Do” and the subsection
• Meeting Summaries: Prepared and distributed by the
“Theory Building.”
facilitators; amended and approved by the members

Overcoming Obstacles along the Way
During the course of an assisted negotiation process, it is likely that problems will arise. The issues
involved are complex, and the politics surrounding the issues are often difficult, so it should be no
surprise when obstacles emerge. Few of these problems have not been encountered before, and there
are techniques for dealing with tough situations. The following mini-cases illustrate some typical
obstacles and creative solutions.
Difficult participants and distrust

Comprehensive Plan, Jefferson County, Montana
To deal with parties who could stall a negotiation by raising objections just to spite the other parties,
the mediator in this case established an interesting ground rule: parties could raise an objection, but
they also had to put forward a positive alternative. This ground rule prevented parties from vindic-
tively blocking progress and encouraged the search for better solutions.
The power of numbers

Comprehensive Plan, Camp Sherman, Oregon
Most participants defined density of residential development in terms of the number of houses. To
move participants away from that kind of thinking, the mediator asked participants to define density
in other ways. Gradually, they redefined density in terms of their perceptions of design as opposed to
a fixed number of houses.
Skepticism toward assisted negotiation

Pine St. Barge Canal Superfund Site, Burlington, Vermont
Participants were reluctant to take ownership of the negotiation process and wanted the mediator to
be a “chairman” and tell people what to do. In response, the mediator proposed protocols that de-
fined roles and outlined how the process would work. Once the stakeholders understood their roles,
they were better able to focus on the substantive issues.
Internal stakeholder disagreements

Crane Valley Project, California
To make sure that representatives were truly reflecting the interests of their organizations, the media-
tor used a single-text approach: writing out options and working with this text until everyone agreed
with the language. At the beginning of each meeting, the participants had to ratify the minutes and
minor agreements reached previously. By getting tentative agreements along the way, the mediator
made sure the stakeholders did not get too far out in front of the organization they represented.

Problem-solving Strategies
Distrust among the parties
• Focus the parties on common goals, not past history

• Have informal times such as coffee breaks or a group lunch to allow participants to get to know
each other away from the negotiation table
• Have the neutral represent the process to the press
Difficult personalities
• Meet one-on-one with participants

• Establish ground rules to ensure common courtesy and respect
• Use role-playing exercises to teach more effective communication
Value conflicts
• Recognize the credibility of different views

• Seek to identify overarching values that are shared
• Use maps or other graphics to outline concerns in a value-neutral format
Lack of experience with consensus building
• Explain why the parties are gathered and the roles of the neutrals and other participants
• Provide training to all participants
• Present case studies of similar negotiation processes that have dealt with similar issues
Technical issues
• Explain all technical terms and acronyms

• Focus on building databases and forecasts that parties can agree on
• Consider the use of one set of outside experts to review data or collect data for technically
disadvantaged participants
• Break complex issues into smaller parts
• Consider options over different timeframes such as, short-term, medium-term or long-term
Perception of strong BATNA
• Get parties to imagine their worst-case scenario

• Suggest that the parties consider the long-term benefits and long-term relationships at stake
• Educate stakeholders about other sources of power that might change other parties’ BATNA

CASE STUDY V: ESTABLISHING AN ADVISORY COMMITTEE
Growth Pressure and Transboundary Disputes:|

Island City and LaGrande, Oregon
“The settlement addressed the deeper issues between annexation. They formed small groups to rank the issues
our two communities. These development issues that were most important and least important. The
would have kept popping up. With the mediation we mediator’s experience in land use law provided the
resolved . . . the issue of the 120 acres and addressed parties with an objective assessment of their chances of
the poor relationship between our towns.” winning in court. His assessment led the parties to
reexamine their alternatives and increased their motiva-
Colleen Johnson, Mayor of LaGrande
tion to reach an agreement through mediation.
“The mediator made us look at the big picture and
Both communities realized that resolving the issue
was helpful in suggesting alternatives.”
was crucial since, as neighbor communities, they had
Dale Delong, Mayor of Island City an interconnected future at stake. LaGrande dropped
its claim on the land in exchange for limited payments
Case Summary for library and park services from Island City. Both
communities agreed to establish common development
In 1992, a development proposal for a Wal-Mart codes and impact fees to control development.
sparked a lengthy dispute between the City of
LaGrande and Island City in eastern Oregon. The Commentary
dispute revolved around conflicting claims over a
Often mediated agreements anticipate future conflicts
120-acre parcel of unincorporated land located
and set up a process to handle such disagreements. In
between the two communities. Each community
the LaGrande v. Island City mediation, the parties real-
viewed the parcel as offering major economic develop-
ized that other growth and development issues would
ment benefits. Beneath the competition for the land,
come up in the future. To address unforeseen issues,
public officials in LaGrande resented the uncompen-
the stakeholders agreed to set up an intergovernmental
sated use of many of their municipal services, such as
panel, known as the Urban Growth Advisory Commit-
use of the public library, by residents of the neighbor-
tee, made up of two elected officials from each commu-
ing bedroom community of Island City. After two
nity and one county commissioner.
years of fruitless appeals and negotiations, county
officials suggested using mediation. The committee met, shortly after signing the medi-
ated Wal-Mart agreement, to review the purpose of the
The county received support from the state in the
committee, and met again in the summer of 1998 to
form of a roster of available mediators and a $5,000
address annexation of another parcel of unincorporated
grant to cover the cost of mediation. Both communi-
land. This parcel is receiving significant attention from
ties agreed to the selection of Richard Forester. He
developers who wish to build a residential subdivision.
prepared a conflict assessment that helped to clarify
The Committee will consider which community is in a
the range of issues and identify who should be invited
better position to provide sewer and other services to
to the mediation sessions from both communities.
the proposed site. Without an intergovernmental panel,
Next, the mediator met individually with the parties
this issue could have triggered another legal battle
and held four joint sessions over a two-month period.
between the two communities, undoing all previous
Instead of deciding the fate of the 120 acres directly, progress.
the participants focused on the issues behind the

Appendix A: CBI Study Results
Research Strategy
CBI undertook this study of land use disputes that used assisted negotiation in order to assess the qual-
ity of the settlements reached. We wanted to know whether or not relationships among the participants
were enhanced so that future interactions would be more productive, whether confidence in govern-
ment had increased, and how participants evaluated the negotiation process in general. Our approach
contrasts with other studies that have analyzed the success of negotiated settlements based on time or
money saved or other quantitative measures.
We also wanted to gather sufficient contextual information to help public officials and citizen activ-
ists determine whether assisted negotiation could be a useful tool for a particular land use dispute in
their community. Thus, we asked participants in relatively recent mediation efforts about their satisfac-
tion with those efforts, about actual outcomes versus their judgment of likely outcomes without media-
tion, and about stakeholder relationships after mediation. In-depth interviews allowed us to probe
answers and ask follow-up questions.
In the absence of a national registry of completed or attempted mediation cases, we relied on initial
interviews with 25 of America’s leading mediators to identify cases for further study. We asked for
nominations of both successful and unsuccessful efforts to resolve land use disputes. We stratified our
sample of mediators to be sure we had representatives from across the country, and we included media-
tors who had experience with many kinds of land use disputes.
The Cases FIGURE 4. Geographical Distribution of 100 Case Studies
We selected 100 of the 147 cases recommended
by the 25 mediators. We omitted 18 Canadian
cases because of the different legal and political
systems compared to the U.S. cases. We did not 29
32
include eight cases that involved state or national 15 11
level regulatory negotiations since they lacked a
site-specific component. Another eight were 13
excluded after a key participant refused to partici-
pate, and 15 cases were disqualified because a
third-party neutral was not directly involved.
Pacific Rocky\ South Midwest Northeast
Coast Mountain
CBI staff conducted more than 400 interviews
consisting of between 23 and 26 questions each,
FIGURE 5. Six Types of Land Use Disputes
depending on the outcome of the case and the
participants’ role. The interviews lasted an average Natural Resource Management 24
of 40 minutes. The actual questionnaire and sum-
Infrastructure Design 20
maries of our findings are available on CBI’s
website (www.cbuilding.org) under the project Development and Growth 18
heading Lincoln Institute of Land Policy. Facility Siting 16
Our research partners at the Institute for Policy Comprehensive Planning 16

Research and Implementation at the University of Environmental Cleanup 6

Colorado at Denver selected eight of the 100 cases for in-depth, on-site case studies. Four of these eight
cases, and one additional case, are summarized in this Guidebook, and all eight cases are presented in full
in a Lincoln Institute working paper by David Lampe and Marshall Kaplan (see Further Readings, page 26).
Summary of Key Findings
The following summaries and accompanying charts highlight the key findings of the study. In general,
the findings hold true for all four categories of respondents (proponents, opponents, regulators and
mediators) and all six types of land use dispute cases, with only slight variations in responses by region.
1. Cases Referred from Other Processes
Nearly three-fourths of respondents (71%) stated that their case was referred to mediation from another
process that was not producing satisfactory results. The predominant reasons mentioned for dissatisfac-
tion were cost and time of litigation; lack of communication and public involvement; poor outcomes
resulting from rigid and narrow planning decisions; and public cynicism toward government.
2. Mediation Initiated by Government Officials
Most of the mediated cases (78%) were initiated by government officials, especially at the state level.
Even in disputes among private parties, public officials often suggested the use of assisted negotiation
when they became involved through the regulatory process. The interview process suggested that these
officials had learned about assisted negotiation through personal experience, seminars and initiatives by
other government agencies. (See Figure 6.)
3. Obstacles Encountered in the Mediation Process

FIGURE 6. Who Took the Initiative in Using Assisted Negotiation?
Percentage Three broad categories (and 18 sub-categories) of
obstacles were identified in the process of achieving
State Government 29%
a good settlement using assisted negotiation:
Local Government 17% tensions among stakeholders (52%); procedural
County Government 14% obstacles (28%); and problems regarding substan-
tive issues (20%). (See Figure 7, page 21.)
Federal Government 10%
4. Evaluation of the Mediation Process
Proponent 7%
Overall, most study participants (86%) had a
Regional Government 5%
positive view of assisted negotiation (see Figure 1,
Elected Representative 3% page 3). They thought the negotiated results were
Court 3% better than what they imagined the outcome
would have been if they had pursued “normal”
Opponent 2%
channels instead of consensus building. In situa-
NGO 1% tions where the parties were not satisfied with the
outcome, they felt that the process did not justify
Not Identified 9%
the time and effort involved or that it was a bur-
Total initiated by government officials: 78% densome step in the regulatory process that in-
creased costs. Specifically, disputes involving

FIGURE 7. Summary of Obstacles
development and growth issues generated less
positive reactions than did other types of land use Tensions among Stakeholders 52%
disputes. (See Figure 8.) Among stakeholders, Distrust among Parties 15%
government officials were the most inclined to
Entrenched Positions 12%
view the process favorably. (See Figure 9, page 22.)
Conflicting Values 8%
5. Implementation of Settlements
Personality Issues 8%
Among the respondents who stated that some sort
of settlement was reached in their cases, most Stakeholder Ability to Represent their Group 4%
thought the agreement was well implemented
Perception of Strong BATNA 4%
(75%), was more stable than what could have been
achieved without mediation (69%), and was cre- Negotiating in Bad Faith 1%
ative in producing the best possible outcome for all
Procedural Obstacles 28%
parties (88%). Furthermore, 92% of respondents
whose cases were settled thought that their own in- Distrust or Lack of Experience with the Process 6%
terests were well served, and 86% thought the inter- Time and Cost of the Process 5%
ests of all parties were met by the settlement.
Outside Influence of the Political Process 5%
6. Importance of the Mediator
Identification of Stakeholders 5%
Overall 85% of respondents thought the mediator
was crucial (60%) or important (25%) in achiev- Neutrals 2%
ing agreement among the parties (see Figure 2, Communication 2%
page 3). Participants in both settled and unsettled
cases thought the mediators made an important Distributive Bargaining 2%
contribution to the quality of the dialogue and Issues and Substantive Obstacles 20%
the effectiveness of the settlements that emerged.
Technical Planning Issues 11%
(See Figure 10, page 22.) Eighty percent of re-
spondents thought they could not have reached Technical Modeling 4%
an agreement without the assistance of a neutral
Access to Information 4%
professional.
Property Rights Issues 1%
FIGURE 8. Evaluation of the Mediation Process by Type of Dispute

100%
Very Favorable
80% Favorable
Neutral
60% Unfavorable
Very Unfavorable
40%
20%
0%
Comprehensive Development Environmental Facility Siting Infrastructure Design Natural Resource
Planning & Growth Cleanup Management

FIGURE 9. Evaluation of the Mediation Process by Stakeholder Category
100%
Very Favorable
80% Favorable
Neutral
60% Unfavorable
Very Unfavorable
40%
20%
0%
Mediator Government Official Proponent Opponent

FIGURE 10. How Important Was the Mediator? 7. Cost and Time of Mediation
In general, participants thought that assisted

Not 3% / 1% 4% negotiation took less time (81% + 4% = 85%
important combined) and cost less (81% + 10% = 91%
combined) than confrontational strategies such
Somewhat
5% / 6% 11% as litigation or administrative appeals.
important
(See Figure 11.)
Important 15% / 10% 25%

8. Progress in Unsettled Cases
Even in the nearly 40% of all cases that were

Crucial 19% / 41% 60%
not settled, the majority of respondents (64%)
thought that the assisted negotiation process
Percentage 20 40 60 80 100
had helped the parties make significant progress
Unsettled Cases Settled Cases Total toward resolution of the conflict in a number of
respects. These included informal and partial
agreements that became a starting point for fu-
FIGURE 11. Cost and Time of Mediation vs. Other Processes ture negotiations; enhanced relationships
among stakeholders; avoidance of political and
More Cost & More Cost & interpersonal attacks; and increased public
Less Time More Time
4% 5% confidence in the working of government. In
some instances improved relationships allowed
Less Cost & Less Cost & the parties to improve communication and
More Time Less Time
10% 81% avoid future misunderstandings. In other cases
the parties were able to rework their agreements
at a later time when new information could be
shared or new circumstances arose. The process
also helped prevent subsequent disputes because
the parties had learned a new model of how to
work things out and achieved a higher level of
trust and respect.

9. Recommendations on the Use of Mediation
When asked about their recommendations on when to use or not use mediation, study respondents
offered these comments:
Mediation is most helpful when:
• Each participant views the outcome as very important
• The issues are relatively clear
• The relevant laws are flexible enough to permit a negotiated settlement
• The mediation is started at an early stage of conflict, before going to public hearings
• The actual decision makers are willing to participate or formally designate representatives
• There is no inherent danger to the safety of participants
Mediation should not be used when:
• Public health or safety requires that action be taken immediately
• Precedent setting is important
• Participants do not recognize the other side’s rights
• The party providing financial support insists on complete control over the process
• The process is being used as a means to delay real action or create an illusion that something is being
done

Appendix B: Resources for Dispute Resolution
State Offices of Dispute Resolution and Other Contacts
ALABAMA • Janice Fleischer MAINE

Florida Conflict Resolution Consortium • Diane E. Kenty, Director
• Judy Keegan, Administrator
Florida Atlantic University Court Alternative Dispute Resolution
Alabama Center for Dispute Resolution
Phone: (334) 269-1515 Ex. 111 Phone: (561) 297-3185 Service
Fax: (561) 297-2626 Phone: (207) 442-0227
Fax: (334) 261-6310
Email: [email protected] Fax: (207) 442-0228
Email: [email protected]
• Chris Pedersen Email: [email protected]
ALASKA
Florida Conflict Resolution Consortium MASSACHUSETTS
• Margaret King, Resource Solutions University of Central Florida
University of Alaska • Fredie Kay, Executive Director
Phone: (407) 823-5174 Office of Dispute Resolution
Phone: (907) 257-2716 Fax: (407) 823-5651 Phone: (617) 727-2224 Ex. 315
Fax: (907) 257-2707 Email: [email protected]
Email: [email protected] Fax: (617) 727-6495
• Sharon Press Email: [email protected]
ARIZONA
Florida Dispute Resolution Center MICHIGAN
• Kirk Emerson Supreme Court Building • Doug Van Epps
Udall Center For Studies in Public Policy Phone: (850) 921-2910 State Court Administrative Office
University of Arizona Fax: (850) 488-0156 Phone: (517) 373-4839
Phone: (520) 621-7189 Email: [email protected] Fax: (517) 373-8922
Fax: (520) 621-9234
GEORGIA Email: [email protected]
• Ansley Boyd Barton, Director MINNESOTA
• Director-Designate Georgia Office of Dispute Resolution • Roger S. Williams, Director
U.S. Institute for Environmental Conflict Supreme Court of Georgia Office of Dispute Resolution
Resolution Phone: (404) 527-8789 Phone: (651) 296-2633
c/o The Morris K. Udall Foundation Fax: (404) 527-8711 Fax: (651) 297-7200
Phone: (520) 670-5299 Email: [email protected] Email: [email protected]
Fax: (520) 670-5530
HAWAII MONTANA
ARKANSAS • Elizabeth Kent, Director • Matthew McKinney, Director
• Melanie Ewell, Coordinator Center for Alternative Dispute Resolution Montana Consensus Council
Arkansas Alternative Dispute Resolution Supreme Court of Hawaii Phone: (406) 444-2075
Commission Phone: (808) 522-6464 Fax: (406) 444-5529
Phone: (501) 682-9400 Ex. 1332 Fax: (808) 522-6440 Email: [email protected]
NEBRASKA
CALIFORNIA INDIANA
• Kathleen Severens, Director
• Susan Sherry, Director • Lisa B. Bingham Office of Dispute Resolution
California Center for Public Dispute Indiana Conflict Resolution Institute Supreme Court of Nebraska
Resolution Indiana University Phone: (402) 471-3730
Phone: (916) 445-2079 Phone: (812) 855-1465 Fax: (402) 471-2197
Fax: (916) 445-2087 Fax: (812) 855-7802
Email: [email protected] NEW HAMPSHIRE
• James S. Varn, Director
COLORADO IOWA
Program on Consensus and
• Cindy Savage, Director • C. Gregory Buntz, Director Conflict Resolution
Office of Dispute Resolution Iowa Peace Institute University of New Hampshire
Colorado Judicial Department Phone: (515) 236-4880 Phone: (603) 862-2051
Phone: (303) 837-3672 Fax: (515) 236-6905 Fax: (603) 862-3060
Fax: (303) 837-2340 Email: [email protected] Email: [email protected]
KANSAS NEW JERSEY
FLORIDA • Jason Oldham, Coordinator • Eric Max, Director
• Robert Jones, Director Office of Judicial Administration Office of Dispute Resolution
Florida Conflict Resolution Consortium Phone: (785) 291-3748 Phone: (609) 292-1773
Florida State University Fax: (785) 296-1804 Fax: (609) 292-6292
Phone: (850) 644-6320 Email: [email protected]
Fax: (850) 644-4968

NEW YORK • Eileen Pruett, Coordinator
TEXAS
• Allen Zerkin, Coordinator Ohio Office of Dispute Resolution
• Jan Summer, Executive Director
Program in Negotiation and Conflict Supreme Court of Ohio
Phone: (614) 752-4700 Center for Public Policy Dispute Resolution
Resolution University of Texas
Phone: (212) 998-7494 Fax: (614) 466-6652
Phone: (512) 471-3507
Fax: (512) 232-1191
Email: [email protected] OKLAHOMA Email: [email protected]
NORTH CAROLINA • Sue Darst Tate, Director
VIRGINIA
• Leslie Ratliff, Coordinator Oklahoma Administrative Office
• Geetha Ravindra, Executive Director
North Carolina Dispute Resolution of the Courts
Phone: (405) 521-2450 Department of Dispute Resolution
Commission Supreme Court of Virginia
Phone: (919) 715-1701 Fax: (405) 521-6815
Phone: (804) 786-6455
Fax: (804) 786-4542
Email: [email protected] OREGON Email: [email protected]
• John Stephens, Coordinator • Susan Brody
Institute of Government Oregon Dispute Resolution Commission
University of North Carolina Phone: (503) 378-2877
Dispute Resolution Websites
Phone: (919) 962-5190 Fax: (503) 373-0794
Consensus Building Institute
Email: [email protected] • Greg Wolf www.cbuilding.org
NORTH DAKOTA Governor’s Dispute Resolution Advisor
• Larry Spears, Executive Director Phone: (503) 378-6511
National Institute for Dispute Resolution
North Dakota Consensus Council TENNESSEE
www.nidr.org
Phone: (701) 224-0588 • Ann Barker, Director
Fax: (701) 224-0787 Commission on Alternative Dispute
Email: [email protected] Resolution Oregon Dispute Resolution Commission
OHIO Administrative Office of the Courts www.odrc.state.or.us
• Maria L. Mone, Executive Director Phone: (615) 741-2687 Ex. 135
Ohio Commission on Dispute Resolution Fax: (615) 741-6285 Policy Consensus Initiative
and Conflict Management Email: [email protected]
www.agree.org
Phone: (614) 752-9595
Fax: (614) 752-9682
Email: [email protected] Society of Professionals in Dispute Resolution
www.spidr.org
State Support for Assisted Negotiation

To encourage and guide public officials in the use of Government Dispute Resolution Act to explicitly foster the
assisted negotiation, many state legislatures have passed use of assisted negotiation by state agency personnel. In
authorization language that allows the use of these other states the authorization has a more substantive pur-
procedures. The authorization statutes differ from state to pose. In the state of Maine, the legislature created a me-
state. For example, in Oregon, the legislature passed ORS diation option for land use disputes as a direct response to
183.502 permitting all state agencies to “use alternative proposed “takings” legislation.
means of dispute resolution” instead of litigation for
In Montana, legislators are considering a statute that
controversial issues. In Pennsylvania, the authorization
would allow local land use decisions to be made via com-
for assisted negotiation is folded into the municipal code
munity-based negotiations. Although the state has a well-
(section 10908.1).
used office of dispute resolution, the Montana Consensus
The reasons and motivations for the authorization lan- Council, the majority of land use decisions do not take ad-
guage also vary. In some states the purpose of the autho- vantage of this office, and there is growing frustration with
rizing language is to assure local officials that they can use how land use decisions are made.
these methods. In Texas, the state legislature passed the

Appendix C: Further Readings
Bacow, L.S., and M. Wheeler. Environmental Dispute Resolu- Moore, Christopher. The Mediation Process: Practical Strate-
tion. New York: Plenum Press, 1984. Through the use of gies for Resolving Conflict. Jossey-Bass Publishers, 1996.
case studies, Bacow and Wheeler illustrate aspects of Moore offers a theoretical review of the mediation pro-
bargaining and negotiation between the government, cess, and covers other types of disputes such as family
environmental advocates, and regulatory agencies. They conflicts.
provide documented examples of opportunities and ob-
Oregon Department of Land Conservation and Development.
stacles to negotiation in a variety of regulatory contexts,
Collaborative Approaches to Decision Making and Conflict
including permitting, enforcement, grantmaking, and
Resolution for Natural Resource and Land Use Issues. Self-
rulemaking.
published; phone: (503) 373-0050. A prescriptive guide-
Bingham, Gail. Resolving Environmental Disputes: A Decade book written in the context of Oregon’s Dispute
of Experience. Washington, D.C.: The Conservation Foun- Resolution Program.
dation, 1986. Bingham draws lessons from successful
Susskind, Lawrence, and Jeffrey Cruikshank. Breaking the
mediation efforts. Short summaries of 50 selected case
Impasse: Consensual Approaches to Resolving Public Dis-
studies provide a concrete picture of the use of assisted
putes. Basic Books, 1987. The authors suggest consensual
negotiation.
approaches as alternatives to the conventional decision-
Carpenter, Susan, and W.J.D. Kennedy. Managing Public making process that has triggered public disputes. They
Disputes: A Practical Guide to Handling Conflict and illustrate how to structure negotiations with or without
Reaching Agreements. Jossey-Bass Publishers, 1988. the help of neutrals.
Carpenter and Kennedy articulate step-by-step advice on
Susskind, Lawrence, and Patrick Field. Dealing with an Angry
how public officials can deal with difficult public disputes.
Public: The Mutual Gains Approach to Resolving Disputes.
Consensus Building Institute. Consensus Building Handbook. Free Press, 1996. Susskind and Field discuss the mutual
Sage Publications, Forthcoming in 1999. This comprehen- gains approach with an emphasis on the importance of
sive handbook offers in-depth descriptions of how to maintaining good relationships with the public and the
structure a consensus-building process. media.
Dukes, Franklin. Resolving Public Conflict: Transforming Com- Susskind, Lawrence, Mieke van der Wansem and Armand
munity and Governance. Manchester University Press, Ciccarelli. Mediating Land Use Disputes. Cambridge, MA:
1996. Dukes summarizes major topics in the theory, his- Lincoln Institute of Land Policy, Forthcoming in 1999. This
tory, and practice of conflict resolution in the public sector. policy focus report examines both theoretical and policy
issues in land use dispute mediation and highlights several
Lampe, David, and Marshall Kaplan. “Resolving Land Use
case studies.
Conflicts through Mediation: Challenges and Opportuni-
ties.” Lincoln Institute of Land Policy Working Paper, 1999.
Eight case studies describe in detail the mediation process
used to resolve specific land use disputes. The cases were
part of the CBI study reported in this Guidebook.

Appendix D: About the Study Sponsors
Consensus Building Institute (CBI)

131 Mount Auburn Street, Cambridge, MA 02138-5752
Phone: 617/492-1414 Email: [email protected]
Fax: 617/492-1919 Web: www.cbuilding.org
The Consensus Building Institute (CBI) is a not-for-profit organization created by leading practitioners and theory
builders in the field of dispute resolution. CBI serves public agencies and private sector clients worldwide by provid-
ing dispute resolution services, training in negotiation and consensus building techniques, and evaluative research.
Since 1993, CBI has worked in 11 countries and 28 states to provide consensus building advice and assistance to
more than 100 agencies, corporations and associations.
CBI plays a key role in helping to build the intellectual capital in the dispute resolution field through pioneering
work on global environmental treaty-making, documentation of “best practices” in the dispute resolution field,
joint training in negotiation, design of simulations and other advanced training techniques, and the mediation of
multi-party, multi-issue public disputes. CBI is associated with the Public Disputes Program of the Program on Ne-
gotiation at Harvard Law School and the Environmental Policy Group at the Massachusetts Institute of Technology.
Institute for Policy Research and Implementation

1360 Lawrence Street #51, Denver, CO 80204-2051
Fax: 303/534-8774 Web: www.cudenver.edu/public/gspa
The Institute for Policy Research and Implementation at the University of Colorado at Denver is a multi-disciplinary
“think and action” institution. It houses the Center for Human Investment Policy, the Center for Public Private Sec-
tor Cooperation, the Northwest Survey Research Program, the International Center, the Center for Affordable
Housing and Educational Quality and the Aspen Global Forum. It was formed with the support of public and pri-
vate sector leaders. The Institute’s agenda focuses on applied research, leadership training, conflict resolution and
technical assistance. The Institute works with international and national as well as state and local government
agencies, community groups, NGOs and private sector firms. It is staffed by expert faculty and practitioners.

113 Brattle Street, Cambridge, MA 02138-3400
Fax: 617/661-7235 Web: www.lincolninst.edu
The Lincoln Institute of Land Policy is a nonprofit and tax-exempt educational institution established in 1974. Its
mission as a school is to study and teach land policy, including land economics and land taxation. The Institute is sup-
ported by the Lincoln Foundation, established in 1947 by John C. Lincoln, a Cleveland industrialist who drew inspira-
tion from the ideas of Henry George, the nineteenth-century American political economist and social philosopher.
Integrating the theory and practice of land policy and understanding the multidisciplinary forces that influence it
are the major goals of the Lincoln Institute. Through its research, courses, conferences and publications, the Institute
seeks to advance and disseminate knowledge of critical issues in land and tax policy. The Institute does not take a
particular point of view, but brings together experts, policymakers and citizens with a variety of backgrounds and
experience to study, reflect, exchange insights and work toward consensus in creating more complete and system-
atic land and tax policies. The Institute’s objective is to have an impact—to make a difference today and to help
policymakers plan for tomorrow.

113 Brattle Street
Lawrence Susskind
Cambridge, Massachusetts 02138 and the Consensus Building Institute

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Using Assisted Negotiation

to Settle Land Use Disputes

Lincoln Institute of Land Policy

This report was prepared by the Consensus Building Institute

Special thanks to the CBI interns who also assisted:

L INCOLN I NSTITUTE OF L AND P OLICY

I. Undertaking a Conflict Assessment: West Chester, Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. CBI Study Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

© 1999 Lincoln Institute of Land Policy

• Are you about to update your community’s master plan?

USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 1

2 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Very favorable: Favorable:

Total answering Unfavorable: 9% Total answering

USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 3

Obtain the best available information

4 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Is assisted negotiation always legal?

USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 5

tiation may still have to be approved through • Develop an interview protocol

formal decision-making processes, such as a • Arrange confidential, one-on-one interviews

public hearing or a public comment period. with all relevant stakeholders

opening up decision making to all stakeholders. the table”

pants and to stress that all final decisions remain ▼

political cycle. If participants invest a consider- dialogue

able amount of time in the process only to see ▼

6 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Not In My Backyard: West Chester, Pennsylvania

USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 7

Preparation Checklist 4. Have you thought of things you can prepare to

8 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Regional Infrastructure Investment: Louisville, Kentucky

USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 9

Highway Location and Comprehensive Planning: Hampton, Virginia

10 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Things to consider in reviewing candidates

• Is the candidate perceived as neutral by all potential stakeholders?

USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 11

FIGURE 3. Tasks of Mediators and Facilitators

Bring them to the table Yes Maybe

Manage meetings Yes Yes

Meet with the press Yes Maybe

Conduct shuttle diplomacy Yes No

Prepare a draft agreement Yes No

12 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Mixed-use Development: Rowley, Massachusetts

development, of which 25 percent would be classified

USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 13

14 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Sample Ground Rules

Administrative Ground Rules Behavioral Ground Rules

• Subcommittees: Established for in-depth discussions For More Information

USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES 15

Difficult participants and distrust

The power of numbers

Skepticism toward assisted negotiation

Internal stakeholder disagreements

16 USING ASSISTED NEGOTIATION TO SETTLE LAND USE DISPUTES

Distrust among the parties

• Focus the parties on common goals, not past history