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Article Excerpt
MODERATOR
Jacqueline Nolan-Haley, Fordham Law School
SPEAKER
Cathy A. Constantino, Federal Deposit Insurance Corporation, Georgetown Law School, George Washington Law School
Sean F. Nolon, Pace University Scshool of Law
Joseph A. Siegel, U.S. Environmental Protection Agency
PROF. NOLAN-HALEY: Welcome once again to our second phase of the program, our panel discussion.
We are focusing this morning on problem-solving mechanisms to ensure and achieve consensus and we are asking the question: "How do we ensure successful resolution?"
As you can tell from the initial lecture this morning with Professor Susskind, we are moving beyond basic ADR in this symposium, to understand, in the public arena, how various ADR processes might be helpful, how they can be used to effect change in important public policy areas.
Our panelists this morning will offer us a rich reservoir of their thinking and their experience to help address this question. My introductions will not do them justice. Their detailed bios are in the materials. But let me just introduce them briefly.
The format will be that each speaker will speak for about twenty minutes. After each panelist speaks, we will entertain one question from the floor. When the three panelists are finished, then we will entertain general questions from the floor.
Our first panelist this morning is Cathy Costantino, who is best known for her expertise in systems design. Cathy is also a facilitator and mediator and an organization development consultant. She is counsel in the Labor and Employment Unit at the Federal Deposit Insurance Corporation, FDIC, where she handles federal class actions and other complex dispute-resolution matters. She is also an adjunct professor at Georgetown Law School and George Washington Law School. She came up from Washington to be with us this morning.
Cathy is the author of several publications, most notably her book Designing Conflict Management Systems: A Guide to Creating Productive and Healthy Organizations. This book received the Best Applied Book Award from the International Association for Conflict Management.
In addition to her work on the domestic front, Cathy has worked with stakeholders on the international front. She has done considerable work in Africa. She has been a consultant to the Royal Canadian Mounted Police. She was the sole U.S. delegate at the United Nations to the U.N. Commission on the Social Effects of Structural Change in the Banking Industry.
Our next speaker, Mr. Sean Nolon, is perhaps best known for his expertise in land-use law. Sean is the Director of the Land Use Law Center and Executive Director of the Theodore Kheel Center for Environmental Solutions at Pace University Law School in White Plains. Mr. Nolon trains local officials, environmentalists, and developers in land-use law and consensus-building techniques. He has also taught these topics in law school. He mediates landuse disputes and he is a certified mediator and arbitrator in Westchester County.
Mr. Nolon is a member of multiple planning boards, including the New York Planning Foundation, the Housing Action Council, the Hudson Clearwater Sloop, and the Westchester Municipal Planning Federation. He is on the Leadership Council for the Association of Conflict Resolution's Environmental Public Policy Section.
He is the author of several publications dealing with collaboration, land use, and conflict assessment.
Our third panelist, Joseph Siegel, is well known for his work in environmental ADR and air-pollution law. He is an ADR Specialist and Senior Attorney with the U.S. Environmental Protection Agency. At the EPA, he specializes in ADR and air-pollution law. He has worked on enforcement and policy issues for the agency for over twenty years.
He teaches a seminar on air pollution, climate change, and emissions trading at Pace Law School, Center for Environmental Legal Studies. He has taught environmental law for eleven years at CUNY Law School. He also is a community mediator in Westchester County and has worked as a facilitator on land use and environmental health issues in public housing.
He serves in numerous leadership roles in the American Bar Association. Most notably, he is the Public Service Vice Chair for the ADR Committee of the Section on Environment, Energy, and Resources. He is Co-Chair of the ABA Committee on Climate Change, Sustainable Development, and Ecosystems and he also is the author of several articles on environmental ADR.
With great pleasure, I present our first panelist, Cathy Costantino.
AN OVERVIEW OF CONSENUS BUILDING
PROF. COSTANTINO: Thank you very much, Jackie. Thank you, Phoebe. Thank you, Samantha. And thank you for inviting me to New York. It's always a pleasure to come north, although I have to say, the weather was a bit much yesterday for me. I got a little wet, but it was okay.
Let me also start out by saying that I am here today in my capacity as an adjunct at Georgetown University Law Center and George Washington University Law School. I am not here as a federal employee. I am on vacation today. I am delighted to spend my vacation day with you and delighted to be here for this situation.
I was intrigued by Larry's conversation, particularly personally. I have worn many hats in the consensus-building arena. Interestingly enough, I am actually on the town council in a small town. So in addition to being a neutral and in addition to being an attorney and in addition to being a systems designer, I have actually been one of those decision makers, where people come in and want to make changes. I have to say that in my small town it was probably more difficult to build consensus around the issue of the zoning and planning regulations than it was with some of the work that I did for the United Nations in Africa. There were days when I would sit in the attorney general's conference room and discuss ADR and the federal government, and go home to the Ruritan, where I would spend hours talking to people about land-use planning and speed bumps and cows and pigs and horses.
So I come at this from many different perspectives. I think what is really important to understand when you are looking at a system is that there is the small system--it's kind of like the Three Bears--there is the small system, the medium system, and the big system. There are certain principles that govern all of those systems. There are certain things that you can expect to see in any type of collaboration that you do.
I also do a lot of class-action litigation. I have mediated a fair number of class actions. There are certain principles that really transcend all the kinds of work that we do and that the people in this room do.
So I am delighted to be here today.
The Wrong Question
The topic for this group is, "How do we ensure successful resolution?" I got really nervous when I looked at that. I am a recovering litigator. When I train people or coach people to have their deposition taken, I always tell them to only answer the question they are asked. When I looked at this question--and it says, "How do we ensure successful resolution?"--the answer is, we can't.
I could sit down, and you wouldn't have gotten much value for your money, bringing me all the way up from Washington. But I think it's the wrong question. The question matters.
"How do we": First of all, "we" don't do anything. The stakeholders do it. We facilitate the process with them. So the "we" is the royal "we." I think we need to be very clear about that. It's not we, the practitioners; it is we, the royal "we," the stakeholders.
"How do we ensure": We don't ensure anything. We are not guarantors. We don't assure a result. If you want to do this kind of work--and for those of you that have had this kind of work and have done this kind of work--you had better be really fluid, you had better be really flexible, you had better be willing to go with the flow, because everything changes. Every single day is new. There are lots of things that are shifting. There are shifting coalitions. There are shifting systems. So don't get too hung up on the idea of ensuring anything.
"Successful": What is success? If you are in the federal government, if you don't count it, it doesn't count; if you can't measure it, it didn't happen.
"Success" is very, very interesting. I am going to talk a little bit about the concept of "success" in systems design and consensus building, because "success" means many different things to different people.
Finally, "resolution": We never resolve anything. Nothing is ever done. It's always modified. It's always fluid. There are always changes that happen. "Resolution" suggests an endpoint. For those of you who do this kind of work or are aspiring to do it, I would really suggest that you think about the concept of what I call "beginner's mind." Every day you walk in is potentially a new day, a new system, a new problem. If you become wedded to the idea that X is going to happen or Y is going to happen, if your thinking is very linear, you are going to have a lot of trouble working with these kinds of stakeholders and doing this kind of work. You have to be willing to have lots of balls in the air. You really have to be willing to flow with it and not expect resolution.
So, as any good lawyer would do, when you go to the Supreme Court, you always have Question Presented. I think the question posed by the conference title is the wrong question. I think the right question is: how can neutrals facilitate the process to increase the likelihood of a sustainable system and a durable product?
That's a lousy title to put on this great little brochure. But the point is, we are talking about facilitating a process, increasing the likelihood of a sustainable process and a durable product--sustainability and durability, which I am going to talk about a little bit.
Larry talked about sustainability. Let's not confuse sustainability and stasis. Sustainability does not mean it remains static. Sustainability, if you know anything about systems--organic systems, biological systems, ecological systems, chemical systems-sustainability means they survive and they thrive. It doesn't mean they stay the same.
So don't confuse sustainability with stasis.
Consensus
The next point I want to mention real briefly, again riffing off of some work and conversations that Larry did, is the concept of consensus. He talks about consensus as near-unanimity.
I facilitate a lot. I facilitate small groups, big groups, bankers, politicians. I worked on the Hill. If you really want to talk about facilitation and the need for consensus building, do some work up on Capitol Hill sometime. It's pretty interesting. There is some really interesting conflict floating around in the halls of Congress. For those of us that have been in Washington for a while, you get used to kind of watching it and looking at it with, really, a beginner's mind: What is it that I am seeing here?
I have gotten sabotaged on the concept of consensus. I think it's very important that we think about what consensus is. I define consensus as a result that everyone can live with and support. I have done some facilitations where I have defined consensus as, everybody can live with it. We all do thumbs-up or down or sideways. If the thumb is sideways, it means you can live with it. I have had people turn their thumbs sideways and say, "Yes, I can live with this," and walk out the room and sabotage the process and the result.
Consensus means you can live with it and you will support it. That doesn't mean I need you to be a rah-rah cheerleader. But let's not confuse consensus. I have a conversation with my stakeholders about the definition of consensus, what it is and how I think it can be supported.
A little off the subject. I recently got a new puppy. It's my second dog. I have a Chesapeake Bay Retriever. If any of you know about Chesapeake Bay Retrievers, they are water dogs. They are very stubborn, and they are highly independent and loyal. I was talking to somebody about training my Chesapeake Bay Retriever. I heard an interesting little quote from somebody. They said, if you have a Golden Retriever, you ask them to do something. If you have a Labrador Retriever, you train them. If you have a Chesapeake Bay Retriever, you negotiate with them.
It's terrific. I get to teach negotiation to law students and I get to negotiate with my dog.
The bottom line is, when you work with stakeholders in this kind of an environment, some stakeholders get asked, some stakeholders get trained, and some stakeholders you have to negotiate with. You need to have all of those skills. You need to know how to ask. We don't ask stakeholders what they want. We tell them. Mistake.
We need to train stakeholders in certain skills that they need to do this. If stakeholders don't know what alternative processes are, they can't pick them. So there may be some skill sets that you need to add for people.
Finally, you are often going to be facilitating a negotiation between and among various stakeholders. Not that I want to compare stakeholders to dogs, but some stakeholders are like Golden Retrievers and some are like Chesapeakes and some are like Labs. You are going to use different skills, with different skill sets, along the way.
Conflict Management Systems Design
What I am going to talk about a little bit is the process of the process, called the meta-process. I will talk about problems that I have run into and things that I have done that I have found useful and things that have not been useful.
I have done a fair number of interventions. I have worked with the Royal Canadian Mounted Police. I have worked with the United Nations in Africa. I have worked with the Attorney General's ADR Group. I have done some work in Singapore. But the case study that I want to talk about today a little bit is some work that I did, and it's non-land-use and it is intentionally non-environmental, so you can see a little bit of a different model.
I do some work with the Montgomery County public school system, which is the largest school system in the state of Maryland, the tenth-largest school system in the country. You may know Montgomery County as the area where there was a sniper and a lot of shootings a couple of years ago. I work with and have done consensus building with three unions and the Montgomery County public school system: the teachers' union, the principals' union, and the service workers' union.
They have created a model whereby certain types of disputes are resolved in a consensus-building, collaborative, alternative-resolution system that is supplemental to--and I love Larry's conversation about this--the grievance process. It is possible to use these tools in a union context. It's possible to use them in an educational context. It's possible to use them...
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