Law Times

Page 14 April 13, 2015 • Law Times www.lawtimesnews.com FOCUS Partnering moves beyond the construction field Range of organizations exploring ways to manage non-competitive conflict By JUdy van rhiJn For Law Times artnering is a well-established practice in the construction field that's starting to find acceptance in other areas. This consensus building process is stirring interest in a number of legal fields where parties are try- ing to manage non-competitive conf lict. A commitment to partnering involves identifying and achieving objectives that are beneficial to two organizations or two parts of one. It's an ongoing process requir- ing co-operation, open communication, and continuous consultation. Rick Russell, a lawyer and mediator at Agree Inc., is expanding his non-construc- tion partnering work as interest grows. "Partnering was designed by the Army Corps of Engineers in the United States to bring design professionals, other profes- sionals, and builders together to make a project proceed more efficiently and more time effectively. It arises out of a construc- tion application but it can also be used where two companies are merging or where two departments that are interdependent but different are co-ordinating activities." The facilitation process took root in Canada in the early 1990s and has had ma- jor use in defence construction with many major construction companies now using it as well. It has seen slow adoption in non- construction applications. Russell finds the level of understanding isn't high outside of the construction industry. "Other applications are relatively unknown. It is very much a new thing." He recalls one situ- ation where an organi- zation hired a mining company to work on production and project construction. "It was a deep, hard- rock mine. While they constructed a new shaft, they had to continue production to pay for it. The construction firm couldn't take over the mine. They were in com- petition for the use of the tunnels and the mine- shafts. Each manager had a timeline and requirements. They were in conf lict even though they were on the same side. It was necessary to get them talking and agree on certain principles." Russell notes it's issue rather than dispute resolution. "A lot of facilitation doesn't really involve conf lict as used in common parlance. We in conf lict man- agement define it as anywhere there is perceived to be competition, where inter- ests are not in perfect alignment." Russell notes hospitals have used the process as a visioning exercise where ex- pansion means they must co-ordinate ac- tivities. "You need a coherent vision. You need to get a group problem solving." In another case, the Greater Toronto Airports Authority carried out a visioning exercise as it wanted to map out what the airport would look like in 20 years. It involved futurists, airport ex- perts from around the world, and transporta- tion experts who acted as a panel. The exercise produced a vision that was then subject to peer review. The authority went on to develop and refine the vision. In government, Rus- sell has seen partnering used between different levels of government in the process of repurpos- ing valuable land. "There are heritage interests, development interests, transportation stakeholders, and an interest in obtaining finance for the government. All stakehold- ers have to have input," he says. There's also a great deal of restructuring occurring, not just in the private sector but in the public arena, too. "They need to re- model their structure to stay f leet of foot," says Russell. "Where you have several lev- els of government, the two entities need to develop an intimate understanding of how they each do business so they can leverage both organizations. It is done at the provin- cial and municipal level." Agree Inc. uses a step-negotiation pro- tocol. "You start at the lowest level of deci- sion-maker. If they can't agree, you escalate upwards. You don't get people end-running each other." Russell views it as placing the parties in a crucible. The facilitator is the catalyst that brings in perspectives the parties may not have on their own. "We raise issues that they are all worried about but don't want to talk about. It puts them under pressure and reveals the fault lines up front. The parties get to see each other problem solving before they get to the point where they really need each other but they are suspicious. Like a time-lapse photograph of a f lower burst- ing, the relationship opens and grows if it is nourished and they break into bud earlier than they otherwise would." Russell suggests some processes lend themselves to a legal setting, such as real es- tate lawyers putting together syndicates for development, litigation lawyers who have to run four-way meetings, and mergers and acquisitions. "When most organizations buy another company, it's a debacle. It usu- ally reduces the value of both assets. Most mergers aren't effective at getting value out of two businesses." Russell believes investors funding a merger should prescribe partnering or give an incentive such as reduced interest if the entities try it. "Just as insurers require cli- ents to take steps to mitigate risk, investors should protect their investment," he says. Noting managers probably go through a merger during their careers, he suggests there aren't many executives with experi- ence with them. "They come in and make the deal but then they disappear. Lawyers would be well-advised to use facilitation to help their clients get the most out of the deal." LT JAMS welcomes Hon. Judith A. Snider (Ret.) jamsadr.com/snider Business Manager Bob Bhalla 416.861.1084 or bbhalla@jamsadr.com Joins JAMS after a decade as a judge on the Federal Court of Canada where she wrote extensively on intellectual property and patent litigation matters; is passionate about resolving cases and committed to understanding the parties' issues Before becoming a judge, was general counsel and vice chair of the National Energy Board based in Calgary, Alberta; also a partner at Code Hunter in Alberta Based in the JAMS Toronto Resolution Centre and available to resolve Administrative, Business/Commercial, Energy/Utility, Environmental, Government/Public Agency, Intellectual Property and Maritime/ Admiralty disputes Neutrals Like No Others Untitled-8 1 2015-04-08 2:55 PM Rick Russell is expanding his non-construc- tion partnering work as interest grows. P

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