Article Summary of "Resolving Water Disputes" by Gail Bingham, Aaron Wolf, and Tom Wohlgenant

The authors describe the special problems that water disputes pose for negotiated resolution. They then describe the negotiation stages and strategies used to resolve such complex disputes.

Characteristics of Water Disputes

Water disputes pose particular challenges for negotiation. Stakeholders may disagree on the nature of the dispute, on which issues are central, on who should be involved in negotiations, on how negotiations should be conducted, and even on whether negotiations are the best means of resolving the dispute. Many of these difficulties arise from the very nature of water disputes. Because water flows across legal and political boundaries, the number of potential stakeholders in a water dispute is increased. This boundary-crossing also means that various stakeholders may feel that they have recourse to better alternatives to negotiation. The stakeholders in water disputes are often organizations or institutions. These groups' internal bureaucracies can further complicate the dispute.

In addition, water resource management is inherently technically complex and subject to much scientific uncertainty. This uncertainty and complexity can increase disagreement on the nature of the issues, and on which issues are central. Power differences between the stakeholders can also pose challenges for effective negotiations. Usually the party with the most power has the most say in crafting the resolution. In the long run, however, ignoring the needs of the weaker parties will destabilize any agreement, as the weaker parties will continue to agitate for more favorable conditions.

Negotiation Strategies

Negotiation success can be measured in different ways. Focusing on substance, negotiations may be called successful when they produce a mutually beneficial agreement at lower cost that an alternative forum, and when that agreement is implemented. Focusing on process, a successful negotiation would be one which was fair, efficient in terms of time and money, involved in all the relevant stakeholders, consistent with applicable regulations, and did not establish limiting precedents for third-parties. Focusing on relations, successful negotiations are those in which the parties maintain civil relations of mutual recognition and respect, and improve their joint problem-solving abilities. Generally the substantive measure tends to dominate.

One key negotiating strategy is to focus on interests rather than positions. A party's interests are the reasons they have for holding a particular position on an issue. Negotiations based on positions tend to devolve into contests of will. They are less successful by any measure. Incompatible positions may be backed by compatible interests, and so negotiating on interests is more likely to produce fair, mutually beneficial outcomes without generating added hostility. In addition to separating interests from positions, it is helpful to generate a wide range of possible solutions before trying to come to a decision. It is also helpful for the parties to agree on the criteria by which possible solutions will be evaluated before actually setting down to evaluate the proposals.

Negotiating strategies may be integrative (win-win) or distributional (zero-sum). Negotiating on interests is often integrative. The goal is to make the parties' interests compatible, so that both sides can "win," that is, reach an agreement that satisfies their needs. While integrative negotiation strategies are preferable, they are not always possible. Sometimes parties' interests really are opposed, as when both sides want a larger share of a fixed resource. In these cases distributional negotiations, which seek to distribute the costs and benefits fairly, are necessary. Water dispute often have zero-sum elements. Sometimes disputes which appear to be zero-sum can be reframed so that an integrative approach is possible. One way to do this is to find creative ways to increase or use the apparently "fixed" resource. Another way is to reinterpret the parties' interests to make them compatible, or to find more basic interests which are compatible.

Negotiation Stages

The overall negotiation process is made up of three general phases: pre-negotiation, negotiation, and implementation. While parties often focus on the negotiation phase, the pre- negotiation and implementation phases are as important. Negotiations are proposed and organized in the pre-negotiation phase. In water disputes, getting the parties to agree to negotiate can be difficult. One way to bring people to the table is to show them that their best alternative to a negotiated agreement (for instance, litigation) is actually worse than negotiating. Show them that they are more likely to get what they want at lower cost through negotiations than through any other method. Other factors which contribute to a successful pre-negotiation phase include having a limited number of stakeholders and of related issues, of having parties that demonstrate interest in good faith negotiating, having the resources to conduct negotiations and implement agreements, and having some reasonable deadline for a solution. Once the parties agree to hold negotiations, they must then agree on the issues to be discussed, which parties to include, and on the negotiation procedures to be used.

Once the negotiation phase has begun the parties have four basic tasks to complete. First, they must confirm or modify the informal agreements on negotiation organization and procedure made during the pre-negotiation phase. Second, the parties must exchange information. The parties may need to share technical information. They should explain their interests and try to identify previously unstated assumptions. Listening is a key activity at this point. Third, once both sides have an improved understanding of the issues and interests, they should begin to generate creative options to seek mutually beneficial outcomes. Separating the invention stage from the evaluation stage helps to foster creativity and to maintain a cooperative rather than competitive atmosphere. Finally, the parties must narrow the options and settle on an agreement. Parties generally do this by identifying the issues on which they have agreement, those issues on which they were indifferent, and those on which there remained strong disagreement. The group may then either attempt to reach some agreement on the divisive issues, or may agree to address the divisive issues in later negotiations. Areas of agreement should be written up in a draft settlement.

Agreements must be implemented. In the implementation phase the agreement needs to be ratified by the negotiators' constituency groups. The parties also need to negotiate such implementation issues as the definition of terms, terms of enforcement, and how unexpected circumstances will be handled. Agreements may fail to be implemented for a variety of reasons. The agreement may be impractical or unclear, the parties may act in bad faith, the constituent groups may not accept the agreement, or new or excluded groups may oppose the agreement. There are three basic tactics for avoiding implementation problems. The first and most basic tactic is to anticipate and avoid problems. Make sure that the proposed agreement is practically feasible, and that all the relevant parties have been consulted. A second tactic is to create self-enforcing implementation mechanisms. Self-enforcing agreements generally include rewards for compliance, negative consequences for violations, and provisions for monitoring compliance. Contingent agreements may give the parties additional incentives to comply; provisions which create an ongoing relationship between the parties also help to prevent bad faith violations. The third tactic is to specify mechanisms for dealing with problems which arise over the course of the implementation process. For instance, the implementation agreement may specify that future implementation disputes be submitted to arbitration or mediation.