Consensus Building

Overview: Services include acting as a third party neutral facilitator as described further below, who is retained jointly by all the parties, can assist two or more parties in structuring the consensus building process.  This includes developing a negotiation framework, identifying and seeking representatives for all stakeholders groups, facilitating appropriate information exchanges, preparing for and conducting stakeholders and the larger group sessions.  A Consensus Building Agreement (CBA) is prepared by the neutral and the stakeholders, agreed to and entered into at the outset by all the participants. The CBA will cover such items as the confidentiality and rules of the process, a definitive schedule for activities, an agreed payment schedule for the facilitator with a not to exceed budget, and the use of the single text agreement to be managed by the facilitator throughout the process.  The schedule for the process can be targeted to cover discrete areas needing resolution or covering a longer term facilitated process.

Description: The principles of consensus building could play a much greater role in the decision-making for planning and implementing investments in our city and regional infrastructure needs. Many infrastructure projects involve urban redevelopment, transportation, water, and energy that require a great deal of political will from the public sector, substantial upfront investment using public or private funds, and a very lengthy process for stakeholder input. Too often the public involvement process is merely a box to be checked in the environmental review process and not a serious effort to seek and build consensus.  If project opponents are not meaningfully engaged at the outset during the planning stages of project development, even if a simple majority of the governing entity wants to move forward, the unresolved concerns can repeatedly be reasserted to prevent the project from progressing efficiently.

Consensus can be defined as a general or wide spread agreement among all the members of a group of diverse stakeholders. It is not about achieving unanimity. Rather, it is more of a nearly unanimous agreement that allows the project to move forward. The process may go beyond reaching the terms of consensus, and could also include implementing agreement(s) successfully.  Obtaining consensus involves investing enough in the decision-making process to bring the right people to the table, to get the right ideas on the table, and to engage stakeholders in ways that invite productive problem solving.  Obtaining consensus can be assisted with the involvement of a consensus building “process facilitator” to shape and shepherd the process.

In consensus-building the process facilitator assists competing interest groups to reach agreement on issues in controversy affecting a large number of people. Consensus-building typically involves informally structured, face-to-face interactions among representatives of stakeholder groups. One objective is to gain early participation from affected interests with differing viewpoints, including potential opponents. The goal is to produce sound decisions with the broadest support possible, thus greatly reducing the likelihood of subsequent disagreements or legal challenges.

The book by Lawrence Susskind and Jeffrey Cruikshank, “Breaking Robert’s Rules: the new way to run your meetings, build consensus and get things done“, is an excellent blueprint of how to conduct a consensus-building process. The purpose is to improve the simple majority rule process run by Roberts Rules of Procedures, with a process intended to gain broader support and better solutions. Five steps are identified in the consensus-building process: convening, clarifying responsibilities, deliberating, deciding, and implementing agreements.

1. CONVENING- Every project must have a public champion, perceived as trustworthy, who has the interest of the larger community at heart and the wherewithal to get everyone’s attention and participation.  This is the type of person that would serve as a convener.  He or she would be assisted by a skilled facilitator to support the process efforts, but the project convener must be the face of the process.  To begin with, the convener, the community and other stakeholders conduct a written conflicts assessment to determine if a consensus-building process makes sense. Once decided, the facilitator and convener can educate interested parties on the process and help them think through whether they would wish to participate.

2. CLARIFYING RESPONSIBILITIES – After a conflicts assessment and a decision to proceed is made, the next activity is to clarify participants’ roles – convener, facilitator, politicians, stakeholder groups, community representatives, and recorders. Agendas for meetings and ground rules for the process are all established during step 2.  The group should assess available computer-based communication options since this can greatly simplify the process and get greater participation from more representatives and groups of stakeholders. A mailing list or email distribution list should be established as well, to keep everyone up to date on the process.

3. DELIBERATING – Deliberations are a critical step in reaching agreement.  As in any collaborative processes the stakeholders must feel their interests are heard and understood by the other stakeholders.  This must be done in a constructive fashion and the skills of the facilitator will be very important in making this happen.  Brainstorming and inventing must be separated from commitments so that all ideas are given consideration before beginning to narrow down the options.  If necessary the process facilitator can create subcommittees and seek expert advice. When it comes time to write everything down the group should use a “single text” procedure. This is a method to work with one neutral document recording the progress, which is reviewed and approved by all the stakeholders.

 4. DECIDING  – Consensus-building, like other forms of collaborative conflict resolution, is based on the four basic principles of “win-win” negotiation (see Fisher and Ury 1996): separate the people from the problem; focus on interests, not positions; invent options for mutual gain; and use objective criteria.  In this stage of the process, stakeholders should try to maximize joint gains. All the principles of effective interest based and collaborative negotiations should be applied in coming to decisions. Multiple drafts of proposals can be circulated until consensus is reached. Again, a record of the decision making process and conclusions can be made through a single text document procedure.

 5. IMPLEMENTING AGREEMENTS – Once consensus has been reached, an implementing agreement should be finalized that incorporates some history of the process and participants and outlines the areas where agreement has been reached.  All the stakeholders should be signatory to this agreement. This agreement should indicate not only how the agreement will be implemented but also how it will be monitored and enforced.  There should be a process in the implementing agreement for how conflicts will be resolved that arise later on.  A collaborative process for conflict management, such as mediation or using a standing neutral decision-maker, should be considered in the terms in the agreement.

Deal Facilitator

Once a decision is made to go forward, a procurement process takes place, designers, constructors, operators, financers and others are selected, and project delivery agreements need to be put in place.  Procurement on many infrastructure projects can be a very complex, expensive and time consuming process. Time is definitely money and for a $1 billion project, a delay in starting work might increase the costs by as much as $1 million a week. A neutral “deal facilitator” of either an individual or a firm, could be very useful in improving the efficiency and duration of the process. The deal facilitator would be approved by all the parties to act in his or her capacity with limited authority to manage and facilitate the process of expediting the procurement and reaching agreement(s).

A neutral deal facilitator can also be better positioned to sort through common interests and objectives of both the public and private sectors, without any particular bias or stake in the eventual outcome. On many complex infrastructure projects each party is often represented by its own extensive set of advisors and advocates, who pursue and seek to maximize their party’s relative interests and positions. Proposal development and transaction costs are often in the tens of millions of dollars for large projects. The public sector’s consultants and advisors involved in the procurement in addition need to evaluate various alternative technical proposals, which need to be compared among each of the bidders.  A deal facilitator could offer benefits to the process by fostering a more collaborative process that achieves the project goals set through the deliberative stakeholder process discussed above.

Mediation concepts of neutrality, identification of interests, joint problem solving and confidentiality can help with the collaborative deal making process and thus reduce transaction costs.  The neutral’s scope could include some or all project phases including:  financing; development; design and construction; and operations.  The benefit of using a neutral is especially present with P3s that involve a long term relationship and shared responsibilities, risks and rewards between the public and private sectors.

One primary goal at the formation of the contractual relationships is to insure the project agreements contain well thought out and mutually agreed to collaborative dispute resolution procedures.  The deal facilitator can lead a discussions concerning the alternative approaches to dispute resolution.  All participants showed buy in and agree to this critical provision in their ongoing relationships. In additional he or she can help structure the program and draft the contract provisions.

The industry’s best practices in alternative delivery projects include some multiple steps of negotiations as the first level effort to resolve the disputes. Imposing time limits for negotiations (typically 15 to 30 days) and providing various levels of escalation (project managers, seniors executives, and then CEO’s) provides two pressure points that work well together.  The time deadlines require the individuals at that level to meet and conclude the negotiation effort in a limited time.  The escalation pressure means that if the individuals are not successful, their bosses will be ask to fix the problem. Beyond the stepped negotiations there is a menu of options described below that should be included.

Project Facilitator

Once the project agreements are executed, a neutral could be engaged as a “project facilitator”.  In this role he or she could run partnering workshops during the course of project to foster and maintain mutual trust, communication and collaboration. When conflicts or disputes arise over the course of project implementation, the project facilitator could function as a negotiation coach or even a mediator in helping to resolve disputes.  In all of these roles the project facilitator will have the benefit of knowing the history of the development of the agreements, as well as knowing the major participants.  If the project facilitator is contracted to visit the project and meet periodically with the participants, there can be early access for “real time” resolution of conflicts, before disputes escalate and relationships sour. The project facilitator would thus assist the parties in reaching agreements in a timely and efficient manner, while maintaining focus on relationships and the long term interests that meet the project’s overall goals first set during the consensus-building stakeholder process.

Project agreements in today’s construction projects frequently incorporate one or more methods of resolving disputes in a collaborative manner. Formal mediation, advisory opinions, and dispute review boards, are the primary methods and are described under Services.

Since project success depends on business relationships built on trust and commitment, collaboration must be a key ingredient built into the project management plan and contractual framework. Collaborative methods of conflict resolution should be used at all phases of the project life cycle, beginning with the decision-making process through a consensus-building approach to deciding what, where and how you are going to fund and build the project; then shifting to the deal making needed for complex project agreements; and finally during the multiple years the project  is implemented, collaborative methods and alternatives can implemented to provide “real time” cost effective conflict management and dispute resolution.