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Alternative dispute resolution (ADR)
Of the disciplines surveyed, ADR with its subfield of environmental dispute resolution, uses examples of water disputes quite widely as, for example, in Amy (1987) and gingham and Orenstein (1991). Although international relations in general are treated extensively in the ADR literature by, for example, Kriesberg (1988), Stein (1988), and Ury (1987), application of ADR techniques to international resource conflicts is rare. Dryzek and Hunter (1987) describe mediation as a mechanism to resolve international environmental problems, and Zartman (1992) discusses the challenges presented in in ternational environmental negotiations. An excellent summary of ADR's potential specifically with regard to the problems of international water conflicts can be found in Delli Priscoli (1992).
For an overview of ADR, the works of four sets of authors - Fisher and Ury (1981), Lewicki and Litterer (1985), Susskind and Cruikshank (1987), and Amy (1987) - are compared and contrasted in terms of concepts, methods, and critiques that they offer the field of ADR. The ideas relevant to international water conflict in the Middle East are then culled for inspection.
Four works in ADR - A comparison
Much of ADR literature is divided between works written by mediators or negotiators themselves about their own work, case-studies by outside observers, and a growing body of theoretical work. Of the four works discussed, three - Lewicki and Litterer (1985), Susskind and Cruikshank (1987), and Fisher and Ury (1981) - are each combinations of the three approaches, with the look and feel of "how-to" manuals for the successful resolution of conflict. The fourth, Amy (1987), is a critique of the specific field of environmental mediation, and is best considered separately.
Each of the three works that deal generally with the process of ADR makes several important distinctions. The first is between distributive, or zero-sum, bargaining - negotiating over one set amount where one party's gain is the other's loss - and integrative, or "win-win," bargaining, where the solution is to everyone's gain. Lewicki and Litterer (1985) and Susskind and Cruikshank (1987) each have sections on both, while Fisher and Ury (1981) focus on how to avoid the pitfalls of the former in order to reach the latter - "get to YES."
Each of the works agrees that the integrative arrangement, being of mutual benefit to the parties in conflict, is a much-desired arrangement, and they vary mostly in the path they advise taking. Susskind and Cruikshank (1987) have a fairly procedural approach, dividing the negotiations into three phases prenegotiation, negotiation, and implementation - and offering concrete suggestions, such as "joint fact-finding" and "inventing options for mutual gain," in order to build consensus in an unassisted process. In assisted negotiations (facilitation, mediation, and arbitration), the authors are more vague, suggesting that whether the outcome is distributive or integrative depends primarily on the personal style of the negotiator. They offer some specific advice, mentioning that a "team spirit" may develop in the course of face-to-face negotiations. They do offer the interesting note that "negotiation researchers have established that cooperative negotiators are not necessarily more successful than competitive negotiators in reaching satisfactory agreement."
Fig. 3.1 Styles of conflict management in two-party (A and B) disputes (Source: Delli Priscoli [1992]; derived from concepts presented by Kenneth Thomas [1976] in "Conflict and Conflict Management," in Marvin C. Dunnett, ea., Handbook of Industrial and Organizational Psychology, Chicago: Rand-McNally)
Lewicki and Litterer (1985) go into a little more detail. They identify five styles of conflict management in a "dual-concern model" along a gradient of the degree of concern for one's own outcome compared with the degree of concern for the other's outcome. The five styles possible, then, are avoidance, compromise, and collaboration (as equal concern for both parties), and competition and accommodation (as completely selfish and selfless, respectively) (see fig. 3.1). The key is to reach a collaborative arrangement. Both the difficulties and the conditions necessary are fairly clearly spelled out, as are guidelines to the process itself. Of special concern are the "factors that make integrative bargaining difficult." These include, primarily, the failure to perceive a situation as having integrative potential, the history of the relationships between the parties, and "black-white" thinking. Ury (1991) offers specific advice to getting past historically difficult and valuebased conflicts - "getting past NO."
Given these common pitfalls, it should be mentioned that Lewicki and Litterer (1985) also provide the most detailed description of distributive bargaining of the three works considered. Recognizing that, often, a conflict situation involves fixed resources for which both sides compete, the authors provide useful concepts and strategies to "maximize" one's share of the outcome. In win-lose bargaining, each side comes to the table with a "bargaining mix" including their starting, target, and resistance points. Strategies offered range from the comprehensive - influencing the other's resistance point - to the mundane - scheduling negotiations for when the opponent has jet lag.
One element mentioned in both Fisher and Ury (1981) and in Susskind and Cruikshank (1987) should be introduced at this point - the concept of a BATNA, the best alternative to a negotiated agreement. The latter authors point out that no one should be at a bargaining table to begin with if their BATNA away from the table is likely to be higher than can be gained through negotiations. A clear understanding of one's own BATNA and, if possible, of the opponent's, gives a fairly clear idea of what the bargaining range is likely to be.
Lewicki and Litterer (1985) conclude their discussion with "strategies of integrative bargaining," useful concepts that are common in one form or another to much of ADR literature (including Fisher and Ury, whose terminology for similar concepts is presented in parentheses):
The difference in tone between Lewicki and Litterer (1985) and Fisher and Ury (1981) suggests a subtle but distinct difference in outlook throughout the works and, consequently, a probable reason for the success of the latter work. Fisher and Ury (1981) are indefatigably optimistic. They do not offer much detail for successful distributive bargaining (what they call "positioning bargaining"), only suggestions to "change the game" to "principled negotiation." Their examples of success (and where mistakes were made) are from everyday life and show how conflict at every level can be resolved amic ably. The language throughout is simple, upbeat, and, one can see, appealing: one would prefer to "invent" or "focus" rather than the clinical "generate." One's conflicts are resolved by "controlling" rather than by passively "evaluating." In short, Fisher and Ury (1981), though covering much the same material as in other ADR literature, are accessible.
Amy (1987) provides an altogether different approach to ADR, one of harsh criticism. The author suggests that, since most studies of mediation are carried out by mediators, there is relatively little criticism of the fundamental claims made by the field. Roughly the first half of the work is an examination of the claims made by ADR proponents. He begins by reviewing the advantages claimed by mediation over legislature, bureaucracy, and the courts to resolve environmental conflicts and concludes that mediation tends to be justified only when (a) there is a relative balance of power between the disputants and (b) an impasse has been reached in the conflict; that is, neither side can move unilaterally in what they perceive as their best interest. He also contests the common assertions that environmental mediation is cheaper, faster, and more satisfying than other approaches, especially litigation.
Amy approaches his critique from the perspective of political science, and his most important observations are of power distributions throughout the process of mediation and of some resulting drawbacks. The main thrust of his argument is that the same power relationships that exist in the real world are brought into the negotiating process. In the classic environmental dispute of developer versus conservationist, the former will usually have the power advantage. As such, the developer will enter into negotiations only if he or she somehow has that power blocked through, say, a restraining order. The mediator, then, usually approaches a conflict looking for a compromise, which will be found between the two initial positions. The problem may be rooted in fundamental differences in values or principles, however, for example as to whether development should even take place - representing an alternative "not on the table."
Further, if one party believes strongly one way or the other, any compromise is capitulation. In other words, positions or interests can be compromised but not principles. A mediator is usually not entrusted with finding the "right" solution, only the best compromise, and a mediator who becomes an advocate, either against disproportionate power or in favour of any specific world view, will not be likely to find ready employment. Amy (1987) therefore recommends that, for disputes of basic principles, the best venues for resolution are still the traditional ones of court, bureaucracy, or legislature.
ADR and the Jordan River watershed
The works presented offer guidelines for how one might approach the facilitation of dispute resolution between the parties involved in conflict over the Jordan River basin. What follows are some specific guidelines and cautions for a presumed facilitator involved in assisted negotiations. The ideal goal, as suggested by the four works cited, is an integrative solution but, given the length and depth of the conflict on this and other issues, a reasonable distributive solution might be more than acceptable to the parties involved. Much of the terminology is from the three "checklist" works. Although it is used interchangeably, the emphasis is from Fisher and Ury (1981).
IDENTIFY THE ACTORS, INTERESTS (SALIENCE), AND POWER.
Borrowed from the conflict-analysis literature (e.g. Coplin and O'Leary 1976), this is perhaps the most difficult and most important step in conflict resolution, particularly given the intense hostility between the parties involved. This point, therefore, receives special attention.
The primary assumption of the works examined above and, in fact, of most ADR literature is that the parties at conflict not only wish to hold negotiations but are already at the bargaining table. The parties in question here, however, not only have never negotiated officially but either do not recognize other parties' right to existence or do not acknowledge other parties' national aspirations. A crucial task, along with identifying the actors themselves, is to induce, entice, or coerce mutual acceptance not only of legitimacy but also of the desire to negotiate. This process would presumably be under the auspices of an interested (and, it is to be hoped, powerful) third party, and would take place in conjunction with comprehensive issues other than solely the water conflict. It is assumed for this analysis that the various other issues would take place simultaneously but separately.
One other issue that should be resolved early is, "What kind of conflict is it?" Delli Priscoli (1992) suggests that five different kinds of conflict - data, interest, structural, relationship, and value conflicts each have different components, each of which informs different strategies to conflict resolution. Water conflicts have aspects of each of the five conflict types listed, not only complicating the negotiations but also offering the potential for "spillover effects" of any breakthroughs into other realms.
Once the actors have been brought to the table, some of Amy's conclusions (Amy 1987) become relevant to the facilitator, particularly those relating to power inequity. As noted by Susskind and Cruikshank (1987), each party will negotiate only as long as its interests can be served best at the negotiating table. Further, Amy (1987) warns that "only when politics of power are exhausted can politics of cooperation become a viable possibility." It should be remembered that, in contrast to the examples of national environmental disputes that Amy (1987) presents, international courts are not necessarily a more egalitarian option than negotiation (see the description of international water law above), nor are the UN forces or economic sanctions, the international equivalents of law enforcement, liable to be mobilized if negotiations fail. Nevertheless, a third party, such as the US State Department or the World Bank, can hold out economic incentives as either a "carrot," by offering aid on a cooperative project, for example, or as a "stick," threatening to withhold aid if cooperative steps are not taken. Both have been used successfully in the Middle East in the past. Here it will be up to the facilitator, and the body he or she represents, to act as advocate not just for compromise but for fairness.
One important point to consider as the facilitator evaluates the "bargaining range" is that, in international relations, armed conflict is sometimes chosen by a state as the BATNA. Predictors, as determined by relative positions and power, of when water conflict may help lead to warfare, are suggested by Naff and Matson (1984), Lowi (1900), and Frey (1992).
As the negotiating process is initiated, it will be crucial to "separate the people from the problem." In our context, the problem is too little water for too many people, not Palestinian national aspirations versus Israeli security. Nevertheless, the issues of water, security, and nationalism are so intertwined that ignoring the ties between them can condemn potential cooperation to failure. This pattern has been seen repeatedly in past attempts at cooperation in the Middle East, such as the Johnston negotiations and the "water-forpeace" process. Ury (1991) and others recognize that "satisfying unmet interests" is a crucial step in "getting past NO."
Furthermore, each state's interests are informed by sectoral conflict agricultural needs compared with those of industry or domestic consumption and even intersectoral pressures: which crop gets the most return per unit of water, for example. The work of Frey and Naff (1985) in developing "cognitive maps" of national views of water would be useful in identifying from where the pressures on an entity's position are likely to come.
INSIST ON COMMON CRITERIA FOR ANALYSIS.
Getting the parties to focus only on people and water will be only half of the hydrologic battle. Determining the technical and policy alternatives that can help to alleviate the water crisis will depend, first, on establishing a common base of information for the physical hydrography of the region. This crucial step is not always straightforward, as data are presented and contested. Kolars (1992) and Starr (1992) offer suggestions for a regional centre for water data gathering and exchange, as a first step in regional cooperation.
Even once the physical parameters are agreed, finding a mutual definition of such concepts as "ownership" and "value" can be equally difficult. Fisher and Ury's suggestion of using fair and mutually agreed standards for criteria for measurements as a step in "focusing on interests, not positions" (Fisher and Ury 1981) is well taken (although one might question their belief in "objective" criteria). Some of the possible paradigms for evaluating the rights to, and value of, water, including legal and economic guidelines, are explored above.
One additional useful tool for evaluating efficient distribution is the concept of "per capita availability" (PCA) of a nation. Falkenmark (1987; 1989a) describes the technical options that are useful, and the common political pressures that are likely, given a state's PCA (the total amount of water available per person). This is especially helpful, both in determining a likely target for the water from diversion or desalination projects and because PCAs can be projected into the future, adding a dynamic element to the search for solutions.
INVENT OPTIONS FOR MUTUAL GAIN.
As mentioned, a mutual distributive solution to the problem of Middle East water allocation would be a great step forward for the parties in question, but even an agreed distribution scheme for existing resources will not solve the regional shortage. Without cooperation, each entity's quest for more water supply or less demand will take place unilaterally, with the probability of duplicate efforts and foregone opportunities. It might be shown, however, that cooperative efforts both are more efficient and allow for greater options. Access to independent and creative expertise necessary for generating "elegant solutions" would be crucial to the facilitator to be able to prompt the bargaining from distributive to integrative.
DETERMINE A FEEDBACK MECHANISM FOR PERPETUATING AGREEMENT.
A viable agreement must incorporate mechanisms for any future misunderstandings to be resolved. This is a final, but crucial, step that has to be taken for a negotiated arrangement to last beyond the signing ceremony. The circumstances that brought about a conflict to begin with are seldom static, nor are the conditions of agreement. This is particularly true for hydrologic conflicts, where supply, demand, and understanding of existing conditions all change from season to season, from year to year. Crisis management for droughts, floods, and technical (e.g. dam or sewage facility) failures, must also be addressed.
The section above on law examines the kinds of multinational bodies of joint research, development, and management that might be established for the Jordan River watershed and that would help guarantee the perpetuation of a negotiated arrangement.
A comparatively recent subfield in ADR, "dispute systems design," is a process of integrating the potential for ADR in public institutions and other organizations that deal with conflict. Described by Ury et al. (1988a), "dispute systems design" may offer lessons in cooperation enhancement in water systems as well. Although most of the work in this field describes incorporating cooperation-inducement within organizations, some of the same lessons for "enhancing cooperation capacity" (Kolb and Silbey 1990), or "design considerations" (O'Connor 1992) and "guidelines" (McKinney 1992), might be applicable to technical or policy systems as well. A water-sharing agreement, or even a regional water-development project, for example, might be designed specifically to induce cooperation in ever-increasing integration from the beginning. This possibility is explored in more detail in chapter 4.
The conflict over the Jordan watershed provides a particular challenge for the application of ADR guidelines offered by the works of four groups of authors. One can imagine Lewicki and Litterer developing a new category for the basin, called "Factors that make integrative bargaining difficult - with a vengeance": the actors do not recognize each other's legitimacy; the enmities between them are deep and ancient; the hydrology is intricate, poorly understood, and seems arranged almost to spite the contentious political boundaries; and everyone is running out of water.
On the other hand, once a strategy for resolving international water conflicts is developed for the Jordan basin, other applications of ADR probably could not get much more complicated.
