Chapter 2 Constructive Engagement


2.1 Constructive engagement for complex decision making

The complexity of water is partly due to there often being numerous stakeholders with many interests they wish taken into account in decisions over water. Choices made over how water is allocated or managed have impacts on other people and other uses of water. These effects often cross scales and levels and, as a result, may be unseen or given low priority by those making decisions. Upstream irrigators may be unaware of the aggregate effects of their decisions over water allocation on downstream hydropower generation. Decisions over flood releases from dams may not account for risks, such as the vulnerability of those living beside and using rivers, that may be small at the basin scale, but overwhelming for those affected locally. Arriving at fair decisions over water is made complex by the need to weigh up and address a wide array of competing interests and perspectives on prioritizing how the 4Rs – rewards, risks, rights and responsibilities – are distributed.

Stakeholders can contribute to, endorse or contest decisions through a variety of routes. If perceiving decisions or plans over water as unfair, stakeholders can choose resistance. They can protest or refuse to take action demanded of them. Those with more power can choose suppression, to enforce or overturn decisions. Both responses can sometimes escalate to include aggression and violence, with the result that water disputes can fuel or be a source of conflict, especially where there are wider tensions in society. Constructive engagement is an alternative path aiming to improve the fairness and effectiveness of complex decisions over water via peaceful, informed and inclusive processes.

“CONSTRUCTIVE ENGAGEMENT OFFERS A WAY OF ACCOMMODATING DIVERSE INTERESTS AND PERSPECTIVES”

Constructive engagement does not remove the passions people bring to water disputes and decisions, but it offers a way of accommodating the diverse interests and perspectives that inspire those passions in processes for finding agreed ways forward. Box 2.1 explores the importance of working with such diversity in building workable solutions to water management problems. Stakeholders choosing constructive engagement recognize that because of the complexity of water, outcomes are likely to be less desirable and problems inflated by acting in isolation. They recognize that a preferable track is to work with others to find options that are mutually acceptable.

“CONSTRUCTIVE ENGAGEMENT CAN TAKE MANY FORMS”

Constructive engagement can take many forms. In relations between States, diplomacy is a form of constructive engagement. Using legal proceedings to resolve disputes is another, as parties use the judicial process to argue and debate the legality or legitimacy of, for example, protection of rights in water resource development schemes. Groups may engage constructively with governments or corporations through advocacy or lobbying. All of these examples are means of trying to shape decisions that better accommodate varied interests and perspectives.

A limitation on constructive engagement can be restriction on access. Some groups may be better positioned or more able to use some forms of constructive engagement. For example, legal recourse is often closed to stakeholders without the legal standing, financial resources or specialist skills needed to take part effectively in court proceedings. Even if resources and capacities are found, more powerful parties may retain an advantage by having more of them. Similarly, advocacy may be more successful for those with better access to more influential actors, marginalizing less powerful or less well represented groups. Such inequity in access can bias outcomes from engagement, leading to real or perceived unfairness.

Box 2.1: Social solidarities – wax, wick, flame – science and art

by Dipak Gyawali

Social solidarities – four diverse perspectives

Modern chemistry teaches us that water is simple H2O. The social sciences, however, tell us that water, as is the way with the social construction of reality, comes in many incarnations. While human societies are complex and plural, they still exhibit some common patterns of behaviour which determine how water is valued. Four social solidarities, with distinct views on water negotiation, can be found from village to global level:

The three primary and active social solidarities – leaving aside the passive fatalists – have different foundations that affect the way they view water – public, private, common-pool, etc. – and what fair negotiation outcomes should resemble. These philosophies are mutually contradictory and cannot be easily ‘integrated’. This is important to appreciate if we are to understand what makes a negotiation successful or suspect in the eyes of the different protagonists. Of course, people and organizations may straddle more than one of these solidarities.

The wax, wick and flame – different types of power

Samkhya philosophy, one of the six main Hindu philosophical lineages, distinguishes between coercive (legal, regulatory, enforced) power exercised by the hierarchic solidarity (tamasik shakti), the persuasive (monetary or organizational) power exercised by the individualist solidarity (rajasik shakti) and the moral power claimed and wielded by the egalitarian ethics community (satwik shakti).

The hydrocracies of different countries may wield coercive power, and the business trading houses and the construction industry persuasive power; but many of the social and environmental movements enjoy support because of their moral or cognitive power. By being the voice of the excluded poor or the mute non-human nature, an array of social and environmental movements have touched a chord within many people, moving them to support courses of action that might even be at a cost to their immediate personal wellbeing.

Samkhya avoids reductionism by arguing that the harmonious exercise of power requires a balanced and infused deployment of all three. This early South Asian attempt at holistic thinking argued that tamasik, rajasik and satwik are akin to the wax, the wick and the flame: the absence of any one will result in no light. It is what we have chosen to call ‘constructive engagement’ between the hierarchic, market and egalitarian solidarities.

Science and art

If impasse and domination are unacceptable, and negotiation the way forward, how is it to be realized in practice? Those who have practiced it argue that it is both a science and an art. Raiffa argues that the ‘science’ means systematic analysis for problem solving, with the systematic part developed and supported by the rigors of mathematics, in particular, its branches such as game theory and operational analysis.8 The ‘art’ part is slippery for the rigorous mathematicians and includes interpersonal skills, the ability to convince and be convinced, the ability to employ a basketful of bargaining ploys, and the wisdom to know when and how to use them.9 In between the mathematical sciences of negotiation and its art of personal skills lie the social sciences of negotiation, which do claim rational logic and analytical thoroughness; but they also introduce some of the fuzziness that comes with issues such as culture and power. They accept plural rationalities of different social solidarities and their inherently contradictory certitudes, which provide us with crucial lenses with which to understand the social encounter that is negotiation.

The field of water negotiations has been dominated in the past by the international relations and political science schools that see nation states as the primary (and often only) actors, believe in economic efficiency as the primary criterion, as well as the hierarchic proclivities towards regime formation through regulations, laws, rules and treaties. A re-positioning of perspectives for successful water management in the years and decades ahead requires that concerns of social and environmental equity as well as climate change be included. To do so, negotiating processes must also include in their engagements the voices of non-State actors, as well as other social science disciplines such as sociology and anthropology to supplement conventional insights from law and economics. This will mean giving up on monistic water solutions provided only by the market or governments, moving beyond two-legged public-private partnerships, and enabling a three-cornered constructive engagement that includes the hitherto marginalized social and environmental civic movements who can play a creative role only if allowed to the negotiating table.

2.2 Effective public participation

Demands for public participation in planning and decision making are widely articulated, whether by governments, donors, civil society, or within law and policy itself. Participatory approaches imply that people outside the machinery of the State, or other formal institutions, are involved in some way in governance processes. However, the idea of public participation can mean different things to different people. Participation can have varying levels or degrees. These reflect the extent to which the influence or authority to make decisions is shared.

“THE IDEA OF PUBLIC PARTICIPATION CAN MEAN DIFFERENT THINGS TO DIFFERENT PEOPLE”

Modes of public participation can be organized along a spectrum (see Table 2.1). Moving from left to right, this spectrum begins with nominal – or token – participation and ends with public empowerment in which the authority to make decisions is placed in the hands of the public. Simply ‘informing’ or ‘consulting’ are not forms of participation that are adequate for constructive engagement, as decision makers are relatively free to ignore contributions by stakeholders. Public participation needs at the very least to be ‘involving’ and ‘collaborating’. This ensures that participation helps influence and shape decisions, by contributing options that are deliberated prior to decision making. A blanket embrace of ‘empowering’ participation is not possible, however, because while authorities have a responsibility to listen and learn, they also ultimately have responsibility to decide and implement on behalf of the society they are appointed to serve. Within constructive engagement, therefore, even if participation does not always result in ultimate decision making, stakeholders gain the ability to influence and shape decisions.

“WITHIN CONSTRUCTIVE ENGAGEMENT, STAKEHOLDERS GAIN THE ABILITY TO INFLUENCE AND SHAPE DECISIONS”

Table 2.1: Public participation spectrum10

2.3 Approaches to negotiation

Negotiation plays a central role where multiple stakeholders participate in constructive engagement. Where choices have to be made to agree ways forward, negotiation is the process used to attempt to reconcile differences among stakeholders. The main aim of an ideal-type negotiation is to reach a workable agreement, acceptable to all parties. In the context of constructive engagement over complex issues relating to water, there may be many stakeholders – individuals, communities, governments, business, financiers, scientists, NGOs and knowledge brokers – representing themselves or in various groups, organizations and coalitions. Approaches used for negotiation need to be appropriate for this context and for this diversity of actors. There are also many different types of arenas (see Box 2.2).

“THE MAIN AIM OF NEGOTIATION IS TO REACH A WORKABLE AGREEMENT, ACCEPTABLE TO ALL PARTIES”

Box 2.2: Global water negotiation arenas

Four distinct arenas in the global debate around water can be described:

The inter-governmental: Formal UN-type efforts at regime forming for water courses that water bureaucracies around the world uphold and engage in. It is mostly about framing rules that are to be upheld by formalized treaties and enforced by the collective ‘international will’.

Market-led: Globalized efforts to let market players find their own equilibrium through privatization, championed by private multinational water companies and supported by development financing and development banks.

Civil society: There is a third influential arena dominated by egalitarian social movements often opposing large dams, big water diversions etc., that are seen as socially and environmentally harmful.

Expert-led: Water experts and professionals drawn from more or less all the above three who try to find a consensus among the three forces of the State, market and civic movements through measures such as Integrated Water Resources Management (IWRM).

To offer a legitimate way forward for dealing with differences collectively, negotiations over complex water decisions need to be transparent and encourage well-intentioned participation. This premise does not make negotiations easy. The examination of rights and responsibilities along with risks and rewards is rarely straightforward. And yet, if negotiation can be approached in a considerate and constructive manner, it can potentially encourage understanding and joint problem solving, greater mutual regard for diverse interests and values, and the possibility of integrating these into sustainable, rewarding and workable outcomes.

“NEGOTIATION REQUIRES THAT THERE IS A DIVERGENCE OF INTERESTS AMONG ACTORS”

2.3.1 Pre-conditions for negotiation

There are some essential pre-conditions for negotiation. Negotiation requires that there is a divergence of interests among actors, but that actors recognize there is a degree of mutual interdependence in resolving problems, and that actors are able to communicate freely with each other:

It is also important that negotiations operate where there is the possibility of some other action or recourse and/or appeal (for example, a legal process) if agreements are not reached or if they are challenged. This provides a motivation for participants to negotiate as well as alternate ways forward if agreement is not reached or if some parties are excluded or exclude themselves from agreements.

2.3.2 Types of negotiation

“NEGOTIATIONS ALSO INVOLVE THE EXERCISE OF POWER, WHICH ITSELF REFLECTS A COMPLEX SET OF RELATIONS AND PROCESSES”

There are different approaches to negotiation. These shape the way negotiations are set up, the design of processes used, the stance taken by negotiators, the tone and openness of interactions and the types of outcomes possible. Overlain on this are differences in style and ways of behaving that actors may adopt when negotiating.

A variety of factors influence how an individual, group, organization or government will negotiate; for example, their purpose, intention, social status and their sense of responsibility to the process or parties involved. It depends also on what is being negotiated, the history of relationships and the issues at hand, and the legal, political and procedural context. Negotiations also involve the exercise of power, which itself reflects a complex set of relations and processes at both an individual and social level. The way power is exercised always affects the strategies parties use in negotiation. For example, when a party chooses to exercise power over another, they may be aiming to ‘defeat’ the other by demonstrating that they have greater means (in status, resources, ability, influence or legitimacy) to achieve their aims than does their ‘adversary’. Power can be exercised, however, for different reasons and results, including cooperative pursuits. Complex social and psychological interactions thus underlie negotiations. Facilitators and participants in negotiations need to find constructive ways of managing this complexity if workable, fair and effective agreements are to emerge.

Facilitators and negotiators need approaches to negotiation that are suited to constructive engagement. It is vital, therefore, that they develop an understanding of what approaches and behaviours are more likely to lead to desirable, mutually acceptable outcomes. The distinctions between types of negotiation should guide this understanding. There is a variety of terminologies and concepts applied to negotiation. These can be grouped into two main types of negotiation:

“IN PRACTICE, COMPETITIVE AND COOPERATIVE STANCES CO-EXIST DURING NEGOTIATION”

The contrasts between these types of negotiation are summarized in Table 2.2. In practice, competitive and cooperative stances co-exist during negotiation. Negotiation can be structured and guided by cooperative principles, while at times parties use competitive behaviours, either as a deliberate ploy or inadvertently. In complex situations, if competitive negotiation is dominant, however, outcomes may be less than optimal. Cooperative negotiation strengthens constructive engagement.

“COOPERATIVE NEGOTIATION STRENGTHENS CONSTRUCTIVE ENGAGEMENT”

Table 2.2: Contrasting emphases and assumptions in negotiation

Competitive negotiation

Competitive negotiation is characterized by a set of assumptions about the relationships among parties and the transactions to be negotiated:

Competitive negotiation is seen as predominantly about bargaining, which involves settling on what each party shall concede and take, or perform and receive. The general focus is on identifying a particular solution that is then sought. Having a particular solution at the outset is known as establishing a ‘position’, which is then defended and used by parties as the target for what needs to be achieved by negotiating. The discussion is then limited to this reference point.

With parties taking different positions that are defended and sought, negotiation becomes a concession-making process. This can involve each party implicitly or explicitly having a bargaining ‘range’ between what they want most and what would be unacceptable to them, with an optimum point or a ‘bottom-line’ somewhere between the two extremes.

A bargaining range can be set in terms of, for example, prices: ‘I'd prefer $60,000, but would take $50,000, however, I'm not going below $40,000!’ Or it might be in terms of types of actions: “I want you to stop pumping water, or at least reduce it to this level, or else...”. With this range in mind, the basic expectation of negotiation and strategy is the making of offers and counter-offers (or a series of demands) until a workable agreement can be reached. If this fails then the ‘talks’ may be postponed or ended.

Having a bargaining range is not unhelpful, but it can limit what is discussed and the results possible. The competitive approach – with its focus on predetermined positions, distribution, and maximizing gain/minimizing losses – tends to result, at best, in a compromise. Little or nothing is added to the scope of the discussion or outcomes. The purpose is to claim something (of value) within a predetermined range of options. The positions of parties are played off one against another, with a net result that may not be satisfying to either, or more to one party at the expense of the other. The parties tend to be working against each other, as compared to with each other. Communication spirals easily into monologues about why one position or outcome is better than another. Information used, in a variety of forms, tends to reinforce one party's position over the others and become a source of contention. For simple exchanges/transactions/decisions, this might be efficient and acceptable. However, for complex situations where ongoing relationships are important, this way of negotiating has a tendency neither to foster nor maintain the relationship, and may make it difficult to achieve the best overall results, as seen in international cooperation in the Aral Sea Basin (Case 2.1), conserving the Florida Everglades (see Chapter 4, Case 4.2) and wastewater management in Coffs Harbour, Australia.11

“COMPETITIVE NEGOTIATION IS CHARACTERIZED BY CERTAIN TYPES OF BEHAVIOUR OR ACTIONS”

Competitive negotiation is characterized by certain types of behaviour or actions. Parties tend to be: dominating or combative, where people try to convince, persuade, influence, manipulate, argue, threaten or bargain hard to gain an advantage; or accommodating or compromising, where a little of something is claimed in order to gain at least a portion of what is required; or at least efforts are directed to not losing too much, and the bargaining style may be to concede, avoid confrontation or hostility, submit or withdraw. Each style of behaviour reflects different goals and values, as well as the different contexts (including the nature of the relationship) involved.12

There are a number of strategies that may be employed. For instance trade-offs, in which something is given up or provided in exchange for a gain of another type, or a take-it-or-leave-it offer, or a time-specific offer. It can also be an advantageous tactic to try to uncover information about the other's bargaining range, or to not be forthcoming with one's own. Information in general becomes part of the struggle or game and therefore valuable as a resource to use, gain, conceal or manipulate.13 House buying and selling is a classic example where competitive, hard bargaining is the norm. Houses are different from complex water.

Case 2.1: Tensions in the Aral Sea Basin

The Aral Sea – once the fourth largest inland body of water in the world – has been reduced to 10% of its original size and is plagued by salinization and pollution. Competition for water is adding tension to what is already an uneasy region. However the shrinking Aral Sea is not so much the crux of the problem as an illustration of the impact of the real problem which is overuse of water caused by inefficient use of water. Many people think the Aral Sea itself is a lost cause. Improving the way water is used so that there is more to share is not.

The problems of increasing demand and declining supplies have been compounded by the failure of the region's nations to work together. Despite an agreement in 1992 amongst the five States to cooperate on its management, an annual cycle of disputes has developed between the three downstream countries – Kazakhstan, Turkmenistan and Uzbekistan – that are all heavy consumers of water for growing cotton and wheat, and the upstream nations, Kyrgyzstan and Tajikistan, who have considerable water resources and hydroelectric potential, but little potential for agriculture.

Water management in Central Asia has suffered greatly from the Soviet legacy of top-down control and general rivalries between the States. The inter-governmental organization charged with managing the basin – the Interstate Water Coordination Commission – has been criticized for operating with little transparency, with no representation from agricultural or industrial consumers, NGOs or other parties, and being generally ill-equipped to deal with the complexity of issues. Accusations of favouritism have further weakened cooperation.

As each country started to view the problem as a zero-sum game, it took steps to increase control over water and energy, often to the detriment of the others. There is increasing uncertainty over plans to build new reservoirs and dams or to expand irrigation, and the relatively little consultation over most of these projects has led to intensified suspicions between States.

Tensions over water and energy have contributed to a generally uneasy political climate in Central Asia. Not only do they tend to provoke hostile rhetoric, but they have also prompted suggestions that the countries are willing to defend their interests by force if necessary. Competition for water can only increase, and tensions will continue to rise unless better mechanisms are put in place to manage the problems.14

“COOPERATIVE NEGOTIATION IS AN OPPORTUNITY TO CONFER AND PROBLEM SOLVE”

Cooperative negotiation

Cooperative negotiation is an opportunity to confer and problem solve to enable outcomes that are mutually beneficial to all involved. This is achieved by striving to accommodate the differences and/or the interests of the parties involved in integrated packages. Both the means of negotiating and the particular ends sought are viewed as interlinked and integral to arriving at a sustainable, satisfying or beneficial outcome.

The aim is for parties to negotiate on the merits of the options available. The parties explore how efficiently and amicably they can find mutual gains or establish mutually agreeable standards for assessing gains in order to come to a workable, equitable agreement.

“COOPERATIVE NEGOTIATION FOCUSES ON INTERESTS RATHER THAN DIFFERENCES”

Cooperative negotiation focuses on interests rather than differences in positions. Interests are defined in broader terms such as values, needs, wants or fears,15 or underlying concerns (about the substance of the negotiation) and relationships with other parties. In either case, interests are understood to relate to what lies behind a stated position – that is, the reasons why something is sought. For example, in the context of regulation of river flows by a dam, an environmental group may take the position that the dam spillways must be open during flood seasons, but their underlying interest is in ensuring that peak flows occur during spawning of an endangered fish species in downstream wetlands. The dam operator may take the position that timing of flow releases should be determined only by power demand and reservoir levels. Their actual interests may relate more to avoiding loss of income and avoiding shortfalls in electricity. Negotiations between the two parties that only focus on their positions leave little room for finding solutions. Understanding respective interests through cooperative negotiation, on the other hand, opens room for discussion of ideas and innovation in the way a dam might be managed and financed and the way water is allocated that could be acceptable to both parties.

Cooperative negotiation is more explicit about the aim of negotiation being a collective, constructive and mutually rewarding process. It leads to integrated decision making that is based on mutual regard and the co-existence of interests and values. Sometimes it is described as ‘win-win’, or ‘mutual gain’, or ‘creating value’.

There are assumptions underpinning cooperative negotiation that relate to the stance of the parties, their ways of relating, and outcomes sought:

By going beyond viewing situations or issues as having a constant or fixed value, more can be added to the situation than seems apparent at first. For instance, there may be different ways to measure worth, a whole sought by parties can be broken down into parts, and/or something new or different may be created through understanding the reasons for why something is wanted or desired. Integrating decisions opens the possibility of creating new options or possible arrangements for agreement. A negotiation and its outcomes may not, therefore, be restricted to dividing portions or result in a gain-loss scenario. It may not even result in compromising, as there may be the possibility of making anew something not considered before, as compared to just giving and taking.16

Cooperative negotiation thus goes beyond dealing with positions, and gives attention to the process of exploring issues. Time must be spent bringing differences into the open, asking parties to explain to each other:

This process is critical, as it provides a space in which parties can better understand what may have previously been unknown or misunderstood about other parties. This paves the way for creating new pathways and options for decision making and outcomes that are more workable, fair and effective. Case 2.2 presents a positive change towards constructive engagement in Nepal's hydropower sector. Case 2.3 describes the steps taken to comprehensively review the operation of the Ok Tedi Mine in Papua New Guinea, change the paradigm of engagement, and build trust required to negotiate fairer compensation to affected communities.

Case 2.2: From conflict to constructive engagement in Nepal's hydropower sector

Nepal's hydropower politics have traditionally been dominated by confrontation between environmental and social activists and large-scale dam proponents. The campaign to stop the Arun-3 hydroelectric project in the 1990s, however, marked a shift from confrontation to more constructive engagement.

A coalition of national and international activists together with small-scale hydropower entrepreneurs successfully campaigned to halt the billion dollar 201 MW project in eastern Nepal. The campaign used economics and science to demonstrate that the proposed project, to be financed by the World Bank and a consortium of donors, was financially unsound. A crucial component of the campaign was the proposal of cost-effective and timely alternatives – rather than simply opposing ‘bad’ dams, there was advocacy for socially and environmentally ‘good’ dams.

The success of the activists in halting Arun-3 changed water politics in Nepal; government could no longer ignore activists and their call for constructive dialogue. Water politics were also changing globally with the release in 2000 of the World Commission on Dams (WCD) report.

Seeing the need to move beyond the ‘pro-dam’ and ‘anti-dam’ positions, the government of Nepal initiated a multi-stakeholder negotiation process in 2003, in which State and non-State water actors agreed to come together to explore options and find workable ways forward. Drawing upon the work of the WCD, multidisciplinary and multisectoral teams worked to improve joint understanding of the complexity of the issues with the ultimate aim of modifying the WCD recommendations to guide Nepal's hydropower sector.

The participants in the dialogue process included representatives of the government's parastatal electricity authority and Ministry of Water Resources (dam managers), the private sector (dam builders), and NGOs representing the communities affected by the project and concerned about other social and environmental issues.17

Photo 2.1 Women's meeting to discuss Community Mine Continuation Agreements with the OK Tedi Mine (Serki Village, Papua New Guinea).

Case 2.3: Ok Tedi Mine, Papua New Guinea – Changing the negotiating paradigm

The Ok Tedi Mine in Papua New Guinea (PNG) is among the largest gold-copper mines in the world, a major source of revenue for the PNG government, and a source of employment and revenue for people in PNG's remote Western Province.

When building a mine tailings storage dam proved technically treacherous, the mine operator, Ok Tedi Mining Limited (OTML), received permission in 1984 from the government to discharge 90,000 tonnes of mine waste directly into the local river each day. The tailings have caused significant environmental damage to the Ok Tedi and Fly river systems, and seriously affected the livelihoods of more than 90,000 people living downstream. A series of legal actions in Australia, where BHP, multi-national mining company and then majority shareholder of OTML, was registered, resulted in, first, a payment to landowners in an out-of-court settlement, and later unsuccessful class actions on behalf of landowners.

By 2000, new assessments of the damage from the mine led the World Bank to recommend closing the mine without delay, and BHP to withdraw from the project. The government, a shareholder of OTML, agreed to keep operating the mine, having already lost the national income from the Bougainville copper mine due to civil war.

With this legal history and a need to garner the support of affected communities to continue mining, OTML negotiated Community Mine Continuation Agreements (CMCAs) in 2001. These agreements sought the communities' consent for continued operation along with acceptable compensation arrangements.

The CMCAs were not supported by all villages, with some villagers who took part in legal action refusing to sign up. The CMCAs included provision for a mid-term review in 2005, and an obligation on the mining company to report major changes in the environmental predictions on which the agreements were based.

The review became a centrepoint for airing conflicts, concerns, hopes and demands, and a platform for improved delivery on the sustainable development projects component of the compensation. There was clear interdependency among the key stakeholders: the mining company desired community consent to continue operating; the villagers had limited alternatives other than to work with the company to alleviate their social, environmental and economic hardships. The dilemma for the communities was that the obvious social and economic benefits of the mine, and their dependence on them, had to be balanced against the continuing damage of the mine's tailings on their lifeblood – the Fly River system.

The review centred on renewing communities' support for continued mining, and a better sustainable development outcome. The environmental and social contexts were indivisible – and a process of negotiation was required that could result in an enduring and positive legacy for all affected.

The CMCA mid-term negotiations took 18 months, involved 500 meetings and many thousands of people from 150 villages. The review faced a number of challenges: i) communication and language differences; ii) distances and the inaccessibility of some villages; iii) cultural issues regarding participation of women; iv) representation, trust and capacity to participate; and v) how to ensure informed consent and deal with technical information. A fully transparent, collaborative approach to the situation was identified as the best way forward, to overcome entrenched distrust and real and perceived power imbalances. The mining company, OTML, its advisors and others developed a negotiation and communication process based on interest-based negotiation principles. The Informed Consensus approach adopted also reflected Papua New Guinean traditions of discussion in longhouses to reach community consensus.

The review process culminated in the signing of a Memorandum of Agreement by all parties in 2007 that resulted in a four-fold increase in compensation to affected communities, and a new Ok Tedi and Fly River Sustainable Development Foundation to be controlled by affected communities and funded by mining royalties. An evaluation of the review reported that the working relationships between all parties had significantly improved.18

2.4 Designing negotiation processes

“NEGOTIATION PROCESSES SHOULD PAY ATTENTION TO THE NEEDS OF THOSE LESS ABLE TO ARTICULATE THEIR CLAIMS”

There can be a healthy tension between flexibility and structured design in a negotiation process. As social, political and economic contexts change, so too might the stances and behaviour of key actors. Some issues should be non-negotiable – for example, basic human rights – but other changes might require facilitators and participants to adjust.

There are also usually constraints to any ideal setting for constructive engagement. For example, special efforts might be necessary to ensure that stakeholders without essential means or resources can genuinely participate. Negotiation processes should pay attention to the needs of those less able to articulate their claims, understand their entitlements or obtain adequate representation.

Sub-optimal results can have many other causes. For example, it is important not to underplay power relations or be blind to the political and cultural contexts that favour certain groups. Valuation is another area where mistakes are often made. Often there are very different views of the ‘right way’ of valuing, and care must be taken not to use frameworks which unfairly privilege particular options. Appropriate design of a negotiation process, reshaping when needed, and fostering deliberation are key to unravelling and eventually understanding different perspectives.

Multi-Stakeholder Platforms (MSPs) (see Chapter 3) and consensus building (see Chapter 4) are forms of deliberative and constructive engagement that are being applied to complex water issues and decisions, by those aspiring to make decision making more reasoned. As demonstrated in the following chapters, their design explicitly incorporates methods for increasing the fairness and effectiveness of agreements, implementation and outcomes.

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