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G-52 Guidebook for Assessing Rail Freight Solutions to Roadway Congestion 4.2 Conflict Resolution The convergence of interests between the private and public sector is a prime force behind the growing interest in freight rail. Even so, for various reasons, the achievement of cooperative part- nerships between public agencies and rail firms may be impeded or thwarted by conflicts, and methods for resolving them, therefore, are an important part of practice. Some conflicts stem from divergent motivations and priorities, and others are conflicts within sectors: jurisdictional and funding barriers can divide public agencies, just as competition can divide railroads, so that groups with shared needs may struggle to act in concert. There are three broad ways by which parties in disagreement can be brought to cooperate: Common Interests means the uncovering of shared objectives, whose influence brings dissent- ing parties away from fixed positions and toward areas of accord. The techniques associated with interest-based negotiation are central to the current practice of conflict resolution and are likely to be the most productive in everyday use. They are treated in greater detail below. Appeal to Higher Order Objectives means the invocation of deeper purposes that override the spe- cific factors in conflict and cause the parties to negotiate a compromise. Higher order objectives might be (1) social values, like the competitiveness of industry during a period of economic stress; (2) an ideal, like the pursuit of a world-class transportation system; or (3) a political aim, like diminishment of road traffic because of demands from voters. Such appeals normally are initiated by persons in a position of leadership who can stand above the fray, are custodians of organizational values, and present their appeal to counterparts. The nurturing of top-level rela- tionships, such as those between a DOT Commissioner and chief railroad executives (as cited above), maintains a communication link through which higher order appeals may be made. It also is possible for a less well-placed individual to stand forward in a personal exercise of lead- ership and call on others to reach for the common good. Such natural leadership has less orga- nizational force behind it, but it is by no means without precedent or effect. Coercion is the use of force in some manner or degree. In its baldest form, it employs compul- sion--sanctions, fines, takings, or threats--yet the compliance this engenders is no basis for partnership and creates hostility instead. While there is a place for raw force when the stakes are high, options few, and adverse consequences less important, it is mainly a last resort and its ben- efits can be impermanent. The milder forms of coercion are more common and typically more productive. One is the shutting off of alternatives, so that the choices parties have before them are restricted to certain channels. Another is the buyout of interests, whereby public funds are traded for control or are used to create incentives toward a desired result. Fines can be replaced with user fees, which ideally have an economic rationale, but are also a method for shaping behavior. (The Alameda Corridor in fact employed all these methods: purchasing railroad lines so that the local authority held sway, reducing port access to a single rail route, and then charg- ing fees whether rails are used for access or not.) Finally and familiarly is the exercise of hierar- chical authority. In this case, an agreement is reached because an officer in charge orders it done or because disputants face the risk that decisions will be taken out of their hands. Six-Point Framework Formal structures for conflict resolution have evolved over the last several decades. They are used by courts around the nation and have surfaced in the planning arena in connection with interagency disagreements and public involvement.i The keystone in these structures is the tech- i For example, the Florida High Speed Rail Authority was mandated by state statute to implement a conflict res- olution process to handle disputes with environmental and growth management agencies, and with citizens. Florida governmental entities as a whole are encouraged by the legislature to utilize such processes, and several MPOs have adopted programs.

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Guidelines for Public-Private Dialogue G-53 nique of interest-based negotiation; some classes of conflict may not be susceptible to it, but most are. In this technique, the fixed positions staked out by the parties to an argument are reformu- lated in terms of their underlying interests. Because multiple positions may be compatible with these interests, this helps the negotiation to become fluid instead of fixed. (To clarify the terms, a position "is something you have decided upon; your interests are what caused you so to decide."ii ) The process of defining interests tends to soften positions, uncover zones of existing agreement, and produce shifts in the conception of the problem. From this, issues can be reframed in different terms; for instance, they might transform a network question from being about who controls a line to being about how to expand capacity. Like product repositioning in the world of business, this approach can open up whole new classes of solution. In fact, one of the benefits asserted for these methods is that they improve the quality of decision-making over- all, because of the conceptual change they introduce. A six-point framework has been put forward by a group of experts in conflict resolution,iii which is representative of the major elements of technique recommended currently in the field. 6 Point Framework for Collaborative Dispute Resolution 1. Identify and pursue interests, not solely positions 2. Frame issues for constructive negotia- tion and management of differences 3. Use objective criteria 4. Generate options 5. Develop a sense of the realities 6. Be cognizant of relationships Source: Bloustein School, Rutgers The framework is summarized in the accompanying box and offers an overview for practition- ers about how to respond to contentious situations. Beginning with the interest-based method and the purposeful reframing of issues in constructive terms, it also emphasizes Insistence on objective measures, because they (1) are visible to both sides and reduce the oppor- tunity for disagreement; (2) encourage participants to rationally evaluate their own positions for consistency with the facts; and (3) afford evidence by which negotiated outcomes can be sold to superiors overseeing each side, as well as to other concerned parties and to the public. Joint fact-finding is a specific procedure for establishing objective information and simulta- neously is an exercise in collaboration for the parties; for example, a railroad and an agency might pool resources for a gate survey to determine lane densities for a port service. Generation of options is a creative routine that serves at least three purposes. First, it explores the range and combination of ways through which solutions can be reached. Some of these may be new or overlooked, and the result is to enlarge the scope for action. Second, the act of probing for solutions in itself can draw participants out of their corners and into more vigor- ous give and take. Third, if superior alternatives to those originally under discussion fail to surface, the implication is that the best prospect for settlement is already on the table. ii Roger Fisher and William Ury, "Getting to Yes: Negotiating Agreement Without Giving In," Penguin Books, 1983, pg. 42. iii Center for Negotiation and Conflict Resolution, Bloustein School for Planning and Public Policy, Rutgers, The State University of New Jersey. The framework is courtesy of the Center's Co-Directors Linda Stamato and Sanford Jaffe, whose advice and assistance in this section of research the authors gratefully acknowledge.

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G-54 Guidebook for Assessing Rail Freight Solutions to Roadway Congestion Development of a sense for realities is about recognizing what happens if negotiations collapse. Examining consequences in a clear-eyed fashion may be enough to bring recalcitrant parties back into discussions or may show that the incentives for settlement are insufficient. A common formulation of this concept is called BATNA: the Best Alternative To a Negotiated Agreement. This holds that the probable outcomes of negotiation should be compared to the best available course of action if no agreement is reached. The relative attractiveness of the BATNA for each party will suggest the power of their position and the strength of their urge to settle, and focus- ing on it can help bring matters to a head. A corollary is that actions or events that affect the BATNA have a direct bearing on the negotiation. Cognizance of relationships functions at several levels. Relationships can be essential to the implementation of an agreement, so that when care is taken with them, it aids the ultimate goals. Relationships may be recurrent, implying that the events of one transaction will affect the next. Similarly, they may have a history that assists or impedes their progress and that should be utilized or addressed. The nature of relationships also contributes to the level of trust. Trust will speed the development of agreement and can be especially helpful if discus- sions shift to higher order objectives. Finally, relationships may be implicit. Buying a gallon of milk, for example, is a routine transaction on the surface. Nevertheless, the commercial brand- ing by the manufacturer creates trust in the integrity of the product and is a surrogate for a relationship with the buyer. One way this becomes significant is when the reputation of a rail- road or a public agency as a reliable or unreliable partner influences the behavior of parties who have no experience of their own. Two-Step Implementation Understanding the techniques for conflict resolution does not guarantee an ability to employ them skillfully. Acquisition of this skill calls for a dual course of action. The carrier or public agency should import the expertise and, simultaneously, should develop it internally in strate- gic locations that can support a network of planners. Step 1: Import--Centers for the study and improvement of conflict resolution have arisen at universities around the United States, with enough dispersion that one or more will exist in most regions of the country.iv These centers are sources for teams of professionals who may be hired individually or in groups, to assist the solution of a particular dispute. There will be experts in private practice as well, working in service to business or the courts. Such experts usually are styled as professional mediators, although the title "facilitator" is used too, as a way to emphasize that their role is not to produce the solution, but to help the disputing parties to produce it themselves. This last point is important in view of the slight transportation industry and planning knowledge that some facilitators will possess today. However, if the disputants are the real source of resolutions, then the critical skills lie in process management and not subject matter--and knowledge can be a cause of perceived bias as well. Familiarity with the industry is going to be preferable, but conflict resolution still can move forward while facilitators accumulate experience. On the other hand, railroads contending with planners and moderators who are both industry neophytes should anticipate some frustration. Railroads moreover may instinctively resist mediation, comparing it to the arbitration in labor conflicts and guarding their freedom of action. The way to counter railroad wariness is to show that collaborative dispute resolution is a voluntary procedure, with participants who are independent and act accordingly. The facilitators work to breed cooperation and to improve the joint structuring of decisions; they do not impose settlement on the parties. iv A partial list of university centers and consortia: University of Colorado, Florida State, Harvard, Michigan, Minnesota, Northwestern, Penn State, Rutgers, Stanford, and Wisconsin.