Barrister and mediator Paul Sills begins his new series on consensus building. In part 1, he shares how consensus building is a different skill to facilitate desired outcomes in mediation and dispute resolutions.
One of the issues I often raise when presenting on mediation and dispute resolution is that we don’t think outside the square enough about the ways to use mediation or facilitation skills. In New Zealand, the square is the traditional one-day mediation held in the days or weeks leading up to trial. That accounts for about 94% of what we do.
Mediation/ facilitation practices could be of far greater benefit to society. They are essential skills to assist people to have better, more open conversations – which is what dispute resolution is all about. These skills should be employed more, and even where there is no legal dispute.
Let’s examine how to use these skills by working with a Consensus Building Approach (developed by Lawrence E Susskind and Jeffrey L Cruickshank in their book “Breaking Robert’s Rules”).
To set the scene: you have been called in as a facilitator to run a series of meetings to help a group of people make a decision that deals with a tricky and potentially inflammatory issue. There are a number of sub-groups that have very different ideas around what should happen moving forward. Passions are likely to run high and, without good control, meetings run the risk of simply being a talkfest with no real progress being made over weeks or months. The default meeting/debating process that the group has previously employed is the traditional simple majority rules, with a strict set of meeting procedures/protocols for the movement, debating and passing of motions. This process is commonly used in meetings held in every sphere of society.
The Consensus Building Approach (CBA) can be employed whenever groups of people need to meet to make decisions, the group is committed to making a decision that is as inclusive as possible, and one that has a high likelihood of acceptance by all sub-groups involved. The scenario could be in the context of a civic meeting trying to implement policy for a local community, a business trying to make a cultural change, sports clubs, religious groups – there are no limits to where such a process might be applied. What is required is a willingness to work through a process that is more involved than simple majority rules.
CBA provides a different approach for any group that wants to reach either a unanimous or nearly unanimous decision and provide for an enduring plan for implementation of the decision. I will introduce the basic components of the approach here and then in subsequent articles we will look at each of the steps in a little more detail.
Convening: getting agreement to use CBA, defining the issues that need to be worked on, and agreeing who needs to be at the meetings.
Assigning roles and responsibilities: who will lead the meetings, what are the ground rules, use of a facilitator, how to record the meetings and any potential agreement.
Facilitating group problem solving: how to generate proposals that are advantageous to all different factions within the group, how to confront disagreements respectfully, and how to explore the widest range of possible solutions.
Reaching agreement: while a unanimous outcome is the goal, nearly unanimous is often the practical fall-back position adopted as part of the meeting rules (for example, 80% commitment). This means the group has to meet the most important interests of everyone concerned – which is a long way from a simple 50% vote and is a key differentiating feature when using CBA.
Holding people to their commitments: this is more than simply expecting everyone to do what they promised. It’s about recognising that unexpected problems are likely to arise after agreement is reached and those problems need to be addressed in the same way as the prior meetings – by way of CBA. That involves keeping people in touch with each other after an agreement is reached.
Sounds like a lot of work doesn’t it? Well yes, it can be. And it certainly is at the outset. Depending on the size of the group and the complexity of the problem that brings you together, there might initially be significantly more work and time commitment in using this process than the simple majority rules process.
The group needs to invest enough time in the process to ensure that the right people are at the meetings and engaged in the process. It is also important to ensure that the right ideas are on the table so that the problem is correctly identified – that way all possible solutions can be properly examined. It also requires a process that the members of the group accept as transparent and fair for all, despite the fact they may have significantly varying interests or opinions. That is significantly different from a simple majority meeting where minority group members may simply opt out of the process knowing that their voices and interests are not going to be taken into account or reflected in the outcome because nobody in the majority will represent them.
Any consensus building engagement that is working on a reasonably complex problem with a large group would benefit from the appointment of a facilitator. That person needs to be seen as neutral by all interested parties within the group to ensure members buy in to the process.
While more time needs to be invested at the outset to set the approach up correctly, once the meetings and the discussion are underway CBA may take no longer to reach a consensus agreement than it does to reach a simple majority. The clear advantage of CBA is that because ideas have been debated on the merits, and decisions implemented in a way that has been accepted by an overwhelming majority, the outcomes are better and more likely to stick.
Paul Sills is a barrister with over 20 years’ experience working in global litigation markets. Paul is also an accomplished business leader, having been involved in a diverse range of companies (as CEO or director) including the marine industry, global health care and international freight. Paul has been engaged in mediations both as a legal advisor and as a client since 1995 and as a mediator since 2010. These have included multi-parties and complex issues surrounding Treaty of Waitangi settlements, aviation disasters, leaky homes, construction and receiverships. With a unique understanding of the challenges businesses and individuals face and drawing on his years of commercial and legal experience, Paul provides timely and cost-effective solutions for his clients. Paul’s appointments include Associate Member of AMINZ, a member of the panel of mediators for the Marine Industry Association, Triathlon NZ Age Group Adjudicator for 2015 and 2016 and a member of the panel of mediators for the New Zealand Law Society. Paul is approved to assist with the Society’s Early Resolution Service, as well as standard track mediations. As a barrister Paul maintains both an active commercial litigation practice and a comprehensive mediation practice. Contact Paul at [email protected] or connect via Twitter or LinkedIn .
For more information visit Paul’s website https://paulsills.co.nz/