$0.00 – $6.00
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
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.
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.
- 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.
For all parties:
- Public Information: History and Procedure
- 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)
- All of the Above
- Teaching Note
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 Attributes
|Time required:||3-5 hours|
|Number of participants:||6|
|Neutral third party present:||Facilitator|
|Teaching notes available:||No|