Collaborative Problem Solving: Better and Streamlined Outcomes for All

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5. APPROACHES TO MANAGING CONFLICT AND RESOLVING DISPUTES
AT THE PROJECT LEVEL

5.1 The Nature of Conflict

Why do people disagree, and why do some disagreements escalate into full-blown arguments or disputes? Conflict arises when the interests of two or more parties cannot be simultaneously satisfied, or at least the parties perceive this to be the case. The separate interests may involve competition to obtain scarce resources, fundamental differences in values, identification with adversarial groups, power imbalance in the parties’ relationship, a difference in style or culture, or a simple dislike or distrust of each other. Nevertheless, conflict can be positive.

• Addressing conflict in a forthright manner can produce positive results.
• Conflict forces the recognition of differing perspectives, and provides opportunities to arrive at new understandings.
• Struggling to accommodate diverse interests can be rewarding.
• Addressing conflict also provides the option of responding in either a competitive or a cooperative fashion. If a competitive posture is chosen, damaged working relationships and a lack of progress in achieving goals is often the result.

Understanding the nature of conflict and how to manage it constructively are keys to achieving desired outcomes effectively and efficiently. In the case of transportation projects, the dual objectives are to meet transportation needs and protect the environment, all within a specified time frame.TEA-21, NEPA, and the various related environmental laws and regulations comprise the context within which conflicts among interdependent agencies must be managed.

The following sections describe each element of the framework. The discussions assume that general agreements and operational understandings among the participating agencies have not necessarily been established at the transportation planning stage.

5.2 Dispute Resolution Framework

The Dispute Resolution framework as illustrated in Figure 1, can serve as an option for a more formal, structured dispute resolution model at the project level. It encompasses collaborative problem solving, with various supporting elements, and presents a general process for dispute resolution starting from the lowest organizational level, with possible elevation to higher levels per existing laws and regulations of the organization.

The three elements of the support system are presented as: agency dispute resolution specialists; third-party process neutrals (mediators and facilitators) on a transportation roster; and trainers for help in developing or improving negotiation, problem solving, and dispute resolution skills. These support elements can be used at any point in the problem solving and dispute resolution processes.

Figure 1. Dispute Resolution Framework

5.3 Unassisted Problem Solving

Face-to-face dialogue is the medium of problem solving and dispute resolution. Through direct discussion, participants can share ideas, troubleshoot proposals, and negotiate agreements.

Establishing a process up-front for collaborative problem solving and dispute resolution can help reduce conflict later on, or at least smooth the process for managing subsequent conflict.

Rules to guide meetings are important. Timelines should be established and explicit guidelines for determining progress developed. Agreements reached along the way need to be documented and signed. This will help guide the process and keep it on track.

Discussions can begin upon establishing the timeline and strategy. Simple rules of thumb will help to make the discussions productive and efficient.

• Strict adherence to the process agreements is useful, especially in the beginning, to set the stage for timely, efficient discussions.
• Meetings should be held as scheduled and start on time.
• Substitute representatives should participate when designated representatives are not available.
• Good faith means honoring commitments to participate consistently and to provide information and decisions when promised.
• All participants in the process should be kept informed. Sidebar conversations between individuals should be shared with the group at appropriate times. Avoid surprises.
• Success in negotiation and problem solving is also dependent on the knowledge and skill of the participants. Understanding the nature of the issues (technical, legal, administrative, and perhaps political aspects) is essential. In addition, process skills and personal attitudes are key.
• Participants should engage in problem solving with openness and a desire to achieve mutually agreeable results. They should be candid about differences that exist and be respectful of other perspectives.
• In the case of transportation projects, multiple objectives must be achieved, such as improvement in human safety and mobility, conservation of natural resources, protection of wildlife and preservation of historical structures. Agency representatives need to be aware that these objectives must be achieved within the context of authorizing laws and regulations. Blending the achievement of these objectives becomes the challenge.

Early stages of problem solving should focus on:

• Identifying the interests that underline the stated positions of the participants. This is sometimes referred to as “interest-based” negotiation. Often the “position” is stated in a manner that suggests no compromise is possible. Through careful listening and probing, positional language can reveal central interests or objectives. In many cases the interests of several parties are held in common.
• How participants can best achieve these mutual interests. Developing mitigation plans or redesigning the project, perhaps by altering the route or substituting one mode for another, is the art of identifying and satisfying multiple interests, at least some of which may be held in common.

Artful communication is a key to managing conflict and involves:

• The tone and speed of oral communication.
• The use of body language which results in messages that differ from the meaning of the words.
• Communication behavior often reflects and sometimes creates conflict, but it is also the vehicle for constructive conflict management.

Develop Timelines for Streamlined Environmental Reviews

All agencies involved in streamlining environmental reviews of transportation projects should cooperatively establish time periods for concurrent reviews. At a minimum, this includes the FHWA or the FTA as the lead Federal agency, and all cooperating agencies in the NEPA process. This may include the USFWS, the NMFS, and the USACE.

• The USACE reviews the project if a Section 404 of the Clean Water Act permit is required.
• The USFWS (and/or the NMFS) may be engaged through consultation on endangered species or essential fish habitats;
• EPA is involved through its review and approval responsibilities under Section 309 of the Clean Air Act; and
• The state department of transportation is usually the project applicant, and other state environmental and historic preservation offices may be involved depending on their role in their respective state and the nature of the project. The SHPO/THPO coordinates compliance with Section 106 of the National Historic Preservation Act and 36 CFR Part 800.
• The pertinent tribal government is involved if any tribal leads or interests are impacted by the transportation project.

Establishing a project timeline at the scoping stage, provides points of reference for developing a shared set of expectations that will frame the problem-solving and dispute resolution process. Agency decision points in the NEPA process should be considered, and the time required for each agency to analyze data and conduct its review. Timelines should encompass permits that may be required by the USACE, USFWS or the NMFS under the Endangered Species Act. (Note that specific timelines set by law or rule applies to the section 404 permit process and to reviews under the Endangered Species Act, and specific phases of the NEPA process.) Several states have merged their NEPA and 404 permitting processes.

Give careful thought on how to conduct the discussion during the first official project meeting for all affected agencies. As the lead agency, the FHWA division office or FTA regional office should identify someone to chair the meeting. An independent facilitator could help manage the initial and/or subsequent meetings, and assist in designing the process for developing a timeline (and for the reviews which follow). For example, a facilitator was employed at the start of the review process for the recent I-93 project in New Hampshire. A “partnering” concept borrowed from the construction industry was used in conjunction with an existing NEPA/404 merged process to establish timeframes and concurrent points for the project, during the first meeting.

Other examples of interagency agreements that contain timelines are posted on the FHWA Environmental Streamlining Web site: http://environment.fhwa.dot.gov/strmlng/index.asp.

Establish Guiding Principles

The first few meetings of the project team provide the opportunity to articulate principles that will guide constructive dialogue and collaborative problem solving. Agreeing on guiding principles could either precede or follow agreement on the project timeline. A general set of principles that underpin the guidance provided here was set out in Section 2.4. Another set of principles drawn from specific projects in several states is offered as an example in Appendix E. The principles are broad statements about engaging the agency representatives and managing conflict during the review process.

Define Meeting Protocols

Upon establishing the project timeline and guiding principles, the participating agencies should appoint a chairperson, and develop protocols for consultation and collaborative problem solving, these include: frequency of meetings, identify appropriate participants (and substitutes) and appoint a note-taker, establish ground rules, and agree on managing record-keeping.

The chair manages the meeting logistics (e.g., start and end the meeting on time, make sure the agenda items are covered and minutes are taken), and maintains impartiality during the discussions. As the lead agency, the FHWA or FTA representative(s) could assume the role as chair. This would require the individual to be impartial despite their traditional role as project advocates. Staff from the participating agencies could also chair the meetings, perhaps on a rotating basis.

The use of an outside facilitator on a regular basis could be considered if the project appears to be particularly contentious. Suggestions for obtaining assistance appear in Section 5.4.

Define Ground Rules for Problem Solving

Specific ground-rules governing interactions among the participants should be established. Ground rules are designed to ensure that exchanges of ideas and information are constructive and efficient—that participants have opportunities to present their interests and concerns, and are treated with respect. Appendix F contains an example set of discussion ground rules.

Define Procedures for Addressing Impasses and Resolving Disputes

Working through disagreements is the essence of problem solving. Initial discussions should include strategies for resolving future disputes. When disagreements become disputes, a mechanism for resolution is often critical to reaching agreement and continuing the project review process.

Designing an effective dispute resolution process, including rules for upward referrals to higher-level decision makers (see Section 5.5), requires distinguishing among the different types of disputes, which may require the assistance of a mediator with design expertise. Knowing when the group is “stuck” and understanding the nature of the dispute is key to getting the appropriate dispute resolution process started. The following are suggestions for preventing impasses, recognizing when an impasse has been reached, and moving forward again with constructive problem solving.

• If a serious dispute is building or an impasse has been reached, the agency representatives should seek counsel from their agency dispute resolution specialists. The specialists can assess the problem from their agency’s perspective and provide advice on a process to move the negotiations forward.
• Sometimes a dispute resolution expert from one of the disputing agencies will have the confidence of negotiators from the other agency, can provide advice to everyone, and act as the mediator.
• Another option is to obtain the services of a third-party mediator from the roster of qualified mediators and facilitators, such as the one maintained by the U.S. Institute for Environmental Conflict Resolution (USIECR) or from another source. To learn ore about the “Transportation Roster,” (which is a subset of the USIECR consisting of third-party mediators with specific experience in the transportation development process) see www.ecr.gov.

Upon deciding to use a facilitator or a mediator, establish rules to address:

• Who will initiate an assisted negotiation process (one that uses a mediator possibly in conjunction with a technical expert). Any agency can make the request. However, all of the disputing agencies must agree before the deadline ends.
• The duration of the dispute resolution process should be sufficient for the mediator or expert to understand the issues and conduct discussions, but short enough to move the deliberations toward resolution.
• The consequences for failing to resolve the dispute typically involve referral to higher-level authorities

These rules should recognize and accommodate existing regulatory processes for elevation of disputes, as explained in the Section 5.5 and existing processes. (In particular, a project sponsor or the state Governor initiates the USDOT referral process whenever an agency fails to comply with a project timeline).

5.4 Assisted Problem Solving

Most negotiations proceed without the assistance of a trained facilitator. However, a facilitator can help guide the process in situations where the issues appear contentious. If critical disagreements emerge in the course of problem solving that need timely resolution the participants should consider engaging a mediator. The differences between facilitation and mediation are not crucial to this discussion, except:

• Mediators will focus on a specific dispute and assist in reaching explicit written agreements.
• Competent facilitators (and mediators) can help improve the efficiency and effectiveness of the process, and:
  • Help participants establish and enforce meeting and discussion rules.
  • Assist in moving discussions beyond a statement of positions to identification of key issues and the interests of the parties.
  • Clarify and reframe questions and issues helps to make the discussions more productive.
  • Assist in managing technical information and presentations by experts, and thus help focus areas of disagreement.
• Facilitators and mediators do not make decisions. They help the participants with their problem-solving process.

Most agencies may continue to conduct discussions in an unassisted manner. This is particularly true for agencies that have long-established and good working relationships with other agencies. Assistance should be considered when the process is not working well and when disputes arise frequently. Guidance on obtaining assistance from a third-party facilitator or mediator is provided below.

Define Procedures for Obtaining Assistance

Much of the routine discussion about a transportation project and its impacts will typically be “unassisted problem solving.” That is, the participants discuss and negotiate various aspects of the project and possible mitigation proposals without assistance of a trained facilitator or mediator.

Guidelines for determining when assistance should be requested are summarized as follows:

• At the beginning and periodically during the negotiations (if the discussions are not going well), obtain advice from agency dispute resolution specialists on collaborative problem solving.
• For contentious projects, consider using a trained facilitator for all meetings (who could be an agency dispute resolution specialist who has the confidence of all the agencies, or an independent party).
• Consider using a trained process neutral with expertise in designing the dispute resolution system.
• If disagreements lead to impasses, use one of the agreed-upon dispute resolution processes. If the chosen process is assisted negotiation, it will involve a mediator (possibly a dispute resolution specialist from an agency or an independent mediator).
• If the dispute involves data analysis and interpretation, consider obtaining additional assistance from independent technical experts. The most efficient approach to obtaining these services is through local colleges and universities where respected experts in a variety of technical fields are located. However, obtaining the services of these experts in a timely fashion may not always be possible. Other sources of technical expertise include relevant Federal and state agencies not involved in the dispute. Remember, however, that questions about information and data analysis frequently involve issues of agency jurisdiction.

A checklist for designing the conflict management and dispute resolution framework (Figure 2) for specific projects is provided below. The lead agency can use it to document each element in the framework and the decisions that are reached.

Figure 2. Project-Level Conflict Management and Dispute Resolution Checklist

5.5 Upward Referral

Every effort should always be made to resolve disputes at the lowest level. This is the level where the project and the issues are well understood by the agency representatives who are familiar with the problem-solving environment and each other. However, disputes involving reviews of transportation projects could be referred to a special resolution body or elevated to higher level authorities within the respective disputing agencies. The higher authorities could negotiate, with or without assistance. If the dispute remains unresolved, it could be elevated further to an ultimate authority as governed by applicable laws and regulations. Specific suggestions for upward referral of transportation disputes are presented below.

Define Procedures for Upward Referral of Disputes

• Resolution at a low level allows state/district/division offices to maintain control of the process. However, the ability to refer disputes to higher levels can be crucial to resolving them and maintaining momentum.
• Knowing when to make an upward referral can be challenging. The desire to maintain control of negotiations by project-level agency representatives must be balanced against the need to keep moving in the review or permit approval process.
• Establishing rules about who and when to make referrals will provide incentives to negotiate earnestly at the lowest organizational levels.
• Higher-level negotiations may benefit from assistance. Procedures for upward referral should identify opportunities for obtaining the services of a mediator.
• Higher-level authorities can bring broader perspectives on unresolved disputes. Project-level agency representatives may want to move on with other aspects of the project review or permitting process while attempts are made to resolve one or more specific disputes. This will maintain progress but at the risk of wasting time if the unresolved disputes involve decisions that could “make or break” the project or redirect it.

Establishing Criteria for Upward Referral

A dispute may be appropriate for upward referral based on either of two criteria:

• The impasse is not broken with either unassisted negotiations or the use of a mediator.
• The dispute involves or is caused by:
  • Delays due to lack of sufficient agency resources,
  • Interpretation of agency policy, procedures, or legal mandates, or definitions of law terms or regulations.
  • Other types of disputes may also be appropriate for upward referral.

Identifying Organizational Levels for Upward Referral

Careful consideration should be given to how an upward referral system will operate. The objective should be to identify comparable levels of decision making for each of the disputing agencies so that higher-level negotiation can take place. Identifying comparable levels for referral is not straightforward, as Federal and state transportation and the resource agencies do not have parallel organizational structures.

Some states are developing a hybrid structure for upward referrals—a board of interagency supervisors that meets regularly to hear disputes. This structure eases first-level upward referrals and brings supervisory personnel into the dispute resolution process on a regular basis. Establishing such a body provides a clear message to project-level staff that agency managers are dedicated to resolving disputes quickly and effectively. Examples of structures and processes are provided in Appendices G and H.

Establishing Operating Rules and Time Frames

Beyond the architecture of the referral system, operating rules to identify whom and at what point referrals can be made, and the length of time required for each step in the process need to be developed. A useful rule is to allow referrals by any disputing agency whenever a dispute is not resolved through assisted negotiation or involves higher-level issues (specifically defined).

Also critical is the specification of timelines. The desire to act expeditiously must be balanced against the time required to assemble and present information to the higher-level decision makers, and the time needed for negotiations to take place. Nevertheless, establishing specific timelines and specifying the consequences if deadlines are missed is crucial. Such consequences typically involve referrals to yet higher-level decision makers.

Preparing Higher-Level Decision Makers

• The use of joint briefing statements prepared collaboratively by representatives of the disputing agencies is highly recommended. (Appendix I contains an example format for a joint statement.)
• The individual agencies may also wish to prepare position papers for their upper management and possibly for exchange with the other agencies. The first meeting of higher-level agency negotiators preferably would be a joint briefing by agency representatives who prepared the briefing statement. Note that the preparation of the joint statement may require the services of a facilitator or mediator and may prompt resolution of the dispute, negating the need for upward referral.

Recognizing Formal Processes for the Highest Level Upward Referral

Decisions on whether and when to refer disputes to the highest level should consider other opportunities for elevating disputes under existing rules. These decisions are typically reserved for the last stage of dispute resolution when all other avenues have been exhausted.

Formal Upward Referral Processes

• CEQ Referral
  • Under Section 309 of the Clean Air Act and the Council on Environmental Quality’s (CEQ) regulations at 40 CFR Part 1504, any Federal agency may refer a dispute over an action proposed by another Federal agency to the CEQ. The head of the department or agency must make the referral within 25 days after the notice of availability of the FEIS. CEQ determines whether to take the referral based on several criteria, including a determination of whether the issue is of national importance.
  • If the CEQ takes the referral, several options are available for resolution, including making recommendations to the President. The most typical outcome is the publication of Findings and Recommendations. The referral process focuses on the underlying proposed action and how it does/does not meet the policy goals of NEPA, rather than procedural compliance with NEPA.
• 404(q) Elevation Process
  • Under Section 404(q) of the Clean Water Act, the EPA, the USFWS, or the NMFS may request the elevation of a Section 404 permit decision by the USACE. Elevation can occur through successively higher levels, culminating with the Assistant Administrator of the EPA, an Assistant Secretary of the Department of the Interior, the Undersecretary of the Department of Commerce, and an Assistant Secretary of the Army.
  • Procedural or policy issues and those related to a specific project can be elevated, if the project would impact water resources of national importance. However, the USACE decides whether elevation will occur and makes the final permit decision. (Note that the EPA has separate authority under the Clean Water Act to prohibit or restrict disposal of dredged or fill material into waters of the U.S. under certain circumstances, and thus can veto a 404 permit issued by the USACE.)
• Dispute Resolution under USDOT Order 5611.1A
  • Elevation of disputes to the Secretary of the USDOT, by the FHWA Division Administrator or the FTA Regional Administrator is also possible under USDOT Order 5611.1A. Elevation is triggered by failure or anticipated failure to comply with project timelines. This elevation process is available on the FHWA environmental streamlining website (http://environment.fhwa.dot.gov/strmlng/dot5611_order.asp)

Figure 3. Effective Agency Dispute Resolution

Recommended steps for effectively resolving disputes within and between agencies

5.6 Training in Problem Solving and Dispute Resolution

Study, training, and practice are keys to improving communication and conflict management skills. Appendix K contains a bibliography of conflict management and dispute resolution literature. Additional training opportunities include:

• FHWA will conduct regional interagency workshops on communication, negotiation, and dispute resolution based on this guidance.
• A list of available courses and schedule of offerings at the National Highway Institute can be found on the FHWA Web site www.nhi.fhwa.dot.gov.
• Interagency training at the beginning of a major transportation project should be considered. This may be the best way to build the team prior to initiating the review process, especially if key staff from the participating agencies are included, and examples of transportation projects from the local area are discussed or used in role-playing exercises. Recommended courses are those featuring “hands-on,” interactive activities or sessions that are adapted specifically for project level team building.

Many resource agencies offer courses that would be useful. Information regarding the courses can be found on the relevant agency’s website. These courses provide an opportunity to enhance knowledge and skills, and to learn about the missions and operating regimes of other agencies; this helps to strengthen interagency relationships. Periodic refresher training also provides an opportunity to reinforce and strengthen new skills and knowledge.

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