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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.
