Role-Play:

Woodstove New Source Performance Standard A negotiated rule-making exercise

Steven Maser
Five- or six-person, multi-issue, facilitated negotiation among federal agency, state government, environmental, and industry representatives over the regulation of woodstove emissions; optional sixth role for industry association counsel

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SCENARIO:

The Environmental Protection Agency is using a negotiated rule-making process to promulgate a rule governing emissions from woodstoves, the nation’s largest unregulated source of particulate matter and carbon monoxide. If a committee composed of interested parties can reach consensus on a proposed rule, the Agency will use it as the basis for a final rule. The committee includes representatives from: 1) the Agency, seeking a fair and effective rule and expedited rulemaking; 2) the Natural Resources Defense Council (NRDC), seeking to show progress in reducing emissions; 3) state governments, seeking tight, cost-effective, and prompt approaches to complying with ambient air quality standards; and 4) the Wood Heating Alliance (WHA), the industry trade association, seeking a feasible, nationally uniform rule to avoid facing different state rules. The deadline for completing negotiations is imminent. Assisted by a facilitator, the parties are meeting to reach consensus on compliance date; and a reliable testing procedure.

 

MECHANICS:

This exercise was created for six participants, five if the trade association is not represented by counsel. Public and confidential information should be distributed two days before negotiations take place: all participants need at least an hour to read and prepare for the negotiation; client (WHA) and counsel should meet in advance, as well. The group negotiation will require 1 1/2 to three hours, followed by 1 1/4 to 2 1/2 hours debriefing.

 

MAJOR LESSONS:

  • The primary sources of conflict in devising government regulations can be understood in terms of a divisible prisoner’s dilemma game. It depicts the three problems participants confront here: coordinating behavior to identify joint gains; dividing the gains and costs of securing them ; ensuring compliance.
  • The conditions under which government and business might choose to negotiate a rule, rather than use traditional administrative processes, can be identified by discussing the factors that make this negotiation particularly easy or difficult.
  • The differences between positions, issues, and interests in bargaining are illustrated nicely. That promotes discussing the role of both shared and conflicting interests in creating joint gains and the value of integrative bargaining to capture the gains.
  • Scientific and economic data are incomplete and inconclusive, motivating discussion of how decisions should be made and agreements structured given limited information.
  • When the exercise is conducted among several groups simultaneously, comparing outcomes is instructive. Some groups may not reach agreement. This motivates discussing the characteristics of an effective facilitator, the impact of differences in participant preparation, the role of personality plays, and the influence of pressures from constituents.
  • One of the interested parties being represented by counsel illustrates not only the dynamic relationship between lawyer and client but also the potential impact of representation on negotiating tactics.

 

TEACHING MATERIALS:

For all parties:

  • Public Information: History and Procedure

 

Role Specific:

  • Confidential Instructions for:
  • Agency (EPA) Committee Member
  • Environmental (NRDC) Committee Member
  • Facilitator (includes agreement form for signatures)
  • Industry Committee Member — Counsel to WHA (optional role)
  • Industry (WHA) Representative (may replace counsel as a member of the committee)

 

Teacher’s Package:

  • All of the Above
  • Teaching Note

 

PROCESS THEMES:

Attorney/ Client relations; BATNA; Bluffing; Caucusing; Coalitions; Competition v. Cooperation; Compliance; Constituents; Creating and claiming value; Fairness; Game theory; Integrative bargaining; Interest analysis; Interests dovetailing; Joint gains; Lawyering; Managing uncertainty; Meaning of “success”; Mediation; Packaging; Pareto optimization; Risk perception; Systems of negotiation; Threats; Time constraints

 

Woodstove New Source Performance Standard A negotiated rule-making exercise Attributes

Time required:
3-5 hours
Number of participants:
6
Teams involved:
Yes
Agent present:
Non-lawyer
Neutral third party present:
Facilitator
Scoreable:
Yes
Teaching notes available:
No
PON Teaching Negotiation Resource Center

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Soft copy vs. hard copy

You may order this role simulation in either soft copy (electronic) or hard copy (paper) format. If you select the soft copy option, you will receive an e-mail with a URL (website address) from which you may download an electronic file in Adobe Acrobat PDF format. You are then permitted to view the document on your computer and either print the number of copies you purchased, or forward the electronic file as many times as the number of copies you purchased. You will only receive a link to one electronic file per document. So, if you order 25 soft copies, you may either forward copies of the link to 25 people via e-mail, or print (and/or photocopy) 25 hard copies of the document.

If you select the hard copy option, you will receive paper copies of this role simulation via the shipping method you select.

The purchase price and handling fee are the same for both soft and hard copies. Soft copies do not entail a shipping fee.

For additional information about the soft copy option, please visit our FAQ section, or contact the PON Teaching Negotiation Resource Center at tnrc@law.harvard.edu or 800-258-4406 (within the U.S.) or 781-966-2751 (outside the U.S.).

Please note: At the present time, Teaching Negotiation Resource Center soft copies are compatible with the following versions of the Adobe Acrobat Reader: English, German, French, Spanish, Swedish, Portuguese, Japanese, and Korean. If you have a different version of the Acrobat Reader, you may wish to download one of these at http://www.adobe.com/products/acrobat/readstep2.html, or contact the PON Teaching Negotiation Resource Center at tnrc@law.harvard.edu, 800-258-4406 (within the U.S.), or 781-966-2751 (outside the U.S.) for further assistance. This restriction does not apply to the freely available Teacher’s Package Review Copies.

Ordering a single copy for review

If you wish to review the materials for a particular role simulation to decide whether you’d like to use it, then you should order a single Teacher’s Package for that role simulation. A PDF, or soft copy, version of the Teacher’s Package is also available as a free download from the description page of most role simulations and case studies. There is no need to order participant materials as well as a Teacher’s Package, as all Teacher’s Packages include copies of all participant materials. In addition, some Teacher’s Packages (but not all) include additional teaching materials such as teaching notes or overhead masters. Please note that the materials in Teacher’s Packages are for the instructor’s review and reference only, and may not be duplicated for use with participants.

Ordering copies for multiple participants

If you wish to order multiple copies of a role simulation for use in a course or workshop, simply enter the total number of participants in the box next to “Participant Copies.” There is no need to calculate how many of each role is required; the Teaching Negotiation Resource Center will calculate the appropriate numbers of each role to provide, based on the total number of participants. For example, if you wish to order a 2-party role simulation for use with a class of 30 students, you would enter “30” in the box next to “Participant Copies.” You then would receive 15 copies of one role and 15 copies of the other role, for use with your 30 participants. As another example, if you ordered 30 participant copies of a 6-party role simulation, you would receive 5 copies of each role.

In the event that the number of participant copies you order is not evenly divisible by the number of roles in the simulation, you will receive extra copies of one or more roles. Participants receiving the extra roles may partner with other participants playing the same role, thus negotiating as a team. So, for instance, if you ordered 31 copies of a 2-party role simulation, you would receive 15 copies of the first role and 16 copies of the second role. One of the participants playing the second role would partner with another participant playing that same role, and the two would negotiate as a team.