By Theresa Jensen for EDRBlog.org
Have you ever stood on the edge of a new beginning, noticing all of those excited anxious squiggly feelings dancing around inside . . . and then . . . jumped? That’s what I experienced as I waited for my plane to take off to a new life and job (as Senior Mediator/Associate Director of the EDR Program) in Salt Lake City on July 9, 2017.
What I love about my work is that the skills I use professionally are the same skills I use in everyday life. And, as I find myself going through challenging life circumstances, it’s helpful to take the time to reflect on the parallels in my work.
Being a sole practitioner in the dispute resolution field for three decades had surely been rewarding, but I was seeking to take my skills to a new level, to have greater impact in these divisive times, and what I saw in the EDR Program at the Wallace Stegner Center was indeed calling to me. I saw bright, committed professionals who shared my enthusiasm for spreading the word about the value of working together cooperatively to resolve some of the toughest natural resource and environmental issues our world is facing. My passion for teaching people to work together, across differences, in a way that respects and makes room for all voices, to discover—and not compromise—bigger, better possibilities spurred on by the synergy and creativity of the group had found its home.
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I said at the interview I was ready for a new adventure, and I was indeed being put to the test: leaving friends, community, and family behind as I embarked on this new phase of my life. There I sat at the airport, ready to jump.
- Embarking on a collaborative process can similarly feel as if one is stepping off a cliff into the unknown.
In a collaborative process I facilitated involving grazing issues on an allotment on public land in Eastern Oregon, the grazers were skeptical about meeting with the environmental group with whom they had engaged in litigation over the years; likewise, the environmental group members were cautious to meet with the grazers. Many other players sat at the table as well to discuss a plethora of issues from water preservation and drought management to grazeland sustainability to wildlife conservation and wild horse over-population to hunting and fishing access.
When national wild horse advocates were brought in as part of the mix—individuals who had no experience with the local players or rural culture—even more hopelessness and resistance surfaced. And yet the hope, the possibility that they all might be able to do things differently and actually reach some agreements about the many issues on the table allowed everyone to take a deep breath and eventually sign off on the ground rules and organizational charter, which laid out exactly how the process would work. For these players, it was truly jumping off a cliff.
- It’s important to let go of pre-conceived outcomes.
For me, it was all laid out: the movers would pick up all my “stuff” in Oregon on July 28 and deliver it in Salt Lake City by August 1. Or so I thought. In fact, things unraveled: the moving company notified me that my belongings would be delivered on August 7 or 8; my SLC lease fell apart at the last moment; then the movers notified me again that my belongings would be even later—how late? No one knew.
I reminded myself of the advice I give to the parties in a mediation or collaborative process:
- Soften your positions – take the Velcro off—ask questions to uncover and understand the underlying interests behind your own and others’ positions.
- Positions are solutions people put forward as a way of meeting their perceived interests. Interests are what motivates you to take a stand on an issue.
- If you go into a process thinking you know what the outcome should be – think again. Let go of all of that, enter with an open mind.
If the parties I work with can do it, then I can too. I decided to release my expectations for how things would unfold, and allow the outcome to reveal itself, while focusing on caring for myself and giving my best to my new job. I noticed that the transitional support I longed for was already showing up in myriad ways, just not always in the ways I had pictured.
- Take time to understand for yourself, and educate each other about, your real concerns and what matters most – your interests.
Interests are:
- Needs that someone wants to have satisfied
- Goals one wants to meet
- Concerns – what one wants to avoid
- What motivates someone to seek a solution
Back to the grazing collaborative: part of the process that helped move the group along was an early educational phase, where all participant groups were encouraged to educate each other about their underlying interests (rather than getting stuck in rigidly asserting their positions, or how they thought things should be worked out). This can be difficult. Taking time and not rushing through this educational phase is one of the big challenges, as people naturally want to dive in to the topics on the table and get right down to negotiating. As facilitator, I stressed the goal was to understand what motivated each other.
The grazer’s wives were passionate about describing their cultural values, how they hoped their children would come home from college and want to take over their ranches which had been in their families for decades – which would only occur if they were economically viable. The environmentalists heard the grazers’ love of the land, and saw that it was not unlike their own. The wild horse advocates, who believed that no one could care for the wild creatures as much as they did, learned that the ranchers hauled thousands of gallons of water each week, at their own expense, to keep the horses alive.
Participants began to see each other in a different light, and working relationships began to develop across group lines.
- Some interests and needs pop up when you least expect.
Following a disturbing interchange with my prospective landlord, I suddenly came to realize that my personal safety was far more important than the color of the walls and how clean the windows and blinds were – the interests I had previously been focusing on in our negotiation discussions. I decided to act to assure my personal safety and pulled out of the lease.
Some of the strongest interests we have as human beings are basic human needs – like survival/basic economic security, relationships based on trust and respect, autonomy/to be involved in decisions that affect you, self esteem/to be validated, clarity about lines of decision-making and authority, and personal safety. Even when other interests are divergent, people can often find some interests based on basic human needs that they have in common and build on those.
During a mediation between the Oregon Dept. of Transportation and a local watershed group over ODOT’s request for a permit to move and fill part of a creek for a highway project, the group spent countless hours deciding which scientist’s data they trusted, how to protect the fish habitat, the least impact the highway project could have on the creek, and what mitigation actions would be acceptable. They finally reached a detailed agreement on all issues; however, when it came time to sign the document, people balked. Some participants simply could not trust that others would follow through on their agreements. Past history of previous negative interactions reared its ugly head. The interests that surfaced were relational as well as procedural: all players wanted the kind of working relationships with the other players that they could depend on—they needed to trust that the implementation phase of the process would proceed as agreed upon.
After listening individually to the participants and understanding what was getting in the way, I designed a structured dialogue process which allowed the participants to tell each other what they had told me, but had never spoken directly to each other about. I then helped them ask for, and offer, the assurances they needed to move forward. The process lasted about three hours, and afterwards one of them exclaimed: “We should have done this before we started the negotiations!” They all agreed, and proceeded to sign the previously negotiated agreement.
- Creativity is a messy process.
In an interest-based problem solving process, the group looks for solutions that meet everyone’s priority interests – and they need to get creative to do so. Brainstorming different ways that the identified interests could be met – without judging – is the key. Groups are encouraged to work as hard at meeting the other side’s interests as their own.
Sometimes it gets messy.
During a mediation of a timber sale in southern Oregon, involving two environmental groups and several individual residents who had sued BLM over the proposed sale (plus a local watershed council and town council who also jumped in), the parties were fully into the option-generating stage of the process. The case in the courts was supposed to have been stayed – put on hold – during the mediation to give the parties a chance to work things out. Somehow the judge went ahead and issued a decision on the plaintiff’s motion for a temporary injunction. The motion was granted in some respects and also denied in other respects.
As mediator, I was concerned that the judge’s ruling would have the result of lessening the parties’ motivation to continue negotiating, since they now knew how a judge would rule on some of the legal issues. After a pause in the process to allow parties to consult with their respective attorneys, it turned out that both sides thought they had “won” and the net effect was neutralized. Shortly thereafter, the parties’ attorneys reached an impasse on negotiations on an adjacent timber sale, which threatened to put a halt to our mediation. A mediator’s role is to handle conflicts and issues outside the process that affect it, so I lent the attorneys some help in getting their negotiation back on track, and the mediation was able to proceed. There were numerous points in the process that things could have broken down, but the parties kept doggedly finding ways to address the interests on the table.
Sometimes it takes sticking with the messiness, even when you can’t see the outcome in sight.
Which brings us full circle back to where we began: embracing the unknown.
Imagine being in a swimming pool where all of a sudden the sides of the pool disappear and you find yourself in a vast body of water with no edges in sight—your comfort zone is being eroded. You will either sink or swim. Fear will cause you to sink. The willingness to be in a new experience will keep you afloat . . . . The UNKNOWN is like the dark. When there is no reference point, the creativity is boundless and it can be much easier to think outside the box . . . . (Lena Stevens)
Much about my new life remains unknown, yet some projects beckon like bright lights. I’m looking forward to designing several tainings the EDR Program will offer this fall for regional Forest Service staff about getting more comfortable letting go of control and power as they move into using more collaboration skills in their new forest revision planning efforts. I’m also excited about co-teaching the Short Course on Natural Resource Collaboration with Danya Rumore, the Director of our program, and co-teaching Environmental Dispute Resolution at the law school this fall with Michele Straube, our Outgoing Director. And then there’s the Dialogue project . . . .
Theresa Jensen is the new Senior Mediator/Associate Program Director of the Environmental Dispute Resolution Program at the S.J. Quinney School of Law. She has been a dispute resolution professional for over three decades, with expertise in building consensus among diverse parties in complex multi-party natural resource, environmental and public policy disputes. Her experience encompasses a broad range of issues, including watershed planning, forestry, endangered species, water, land use, urban infrastructure, transportation, energy, nuclear waste, public health and education. On the prevention side of conflict, she has extensive experience with stakeholder engagement, relationship building, skills training and collaboration coaching and support. You can reach Theresa at 801-581-464, or theresa.jensen@law.utah.edu.