Environmental Law 101: Define Success Before Negotiations; Identify Your Needs and Those of Other Parties.

The time to define success is ahead of a negotiation, not after you have gotten into it. Is success unconditional surrender (as was the case in World War II) or is it a lesser, discrete objective (such as forcing Iraq out of Kuwait during the First Iraq War)? A lot of sloppy, lazy thinking goes into explaining to business executives what it is that they should seek, or expect, from a complex permitting matter or an enforcement case. Nothing is served by painting a rosy picture not supported by the facts, by demonizing the other side or by not clearly explaining the process and what reasonable expectations are.

I am a strong believer in consensus, team oriented project management; but I’m also a believer that management needs to know how a decision or recommendation is derived. If management doesn’t understand the thought process, and doesn’t realize the risks posed by competing alternatives because it demands one homogenized recommendation, it lacks an ability to exercise good judgment. Other business models accept, in fact, promote what I would call dysfunctional decision making by encouraging conflict. The best approach lies somewhere between these extremes.

I believe that a project team (including the lawyers) needs to clearly define, and management needs to understand and endorse, the elements that it needs from the process—whether it is permitting a complex project or defending an enforcement action. The nature of the human personality is that there is always an element in the room that argues for “the moon.” They don’t want to appear to be weak so they “want” everything. It is like the economist who argues: “In an ideal world, there would be sufficient resources to do everything we want; therefore, I propose that we do whatever we want.” We don’t live in an ideal world so why debate whether we do? The real issue is to “cut to the chase” and concentrate on a client’s needs. What are they and can they be obtained?

The strategic planning process is about thinking smart and defining, up front, absolute needs. Many times this argument pits those who want to demonstrate that they are the toughest guys in the room (and who, incidentally, stand to gain the most from conflict and the delay in concluding the process) against strategic pragmatists who know what can be achieved and help the client decide whether a likely outcome is adequate for its purposes.

As part of the process, the planning team needs to evaluate the wants and needs of other parties to the negotiation. The objective of the process is to get what you need; but it may be necessary for other parties get what they need for that to happen. This is the process of strategic planning; define success in advance and figure out, based on a two-sided needs analysis, what an acceptable outcome is.

In short: Think objectives. Define success. Concentrate on needs.

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