By Michelle Maiese
What are Ground Rules?
Nearly every kind of dispute management process relies on some form of ground rules. Ground rules are the standards of conduct for mediation, arbitration, and consensus building. Though often unspoken, they are usually used in direct negotiation processes as well.
Ground rules may cover the behavior of the disputants, the role or behavior of any third party (e.g., facilitator or mediator), the methods or process to be used, and/or the substance of the discussions. When used in consensus building, the list of ground rules is sometimes referred to as a protocol. This is an initial set of rules that are negotiated before or during the first meeting and establish common rules of engagement regarding project organization, group decision-making, communication with constituents and the media, and the use of data and technical information.
Emphasis on ground rules stems from a belief that all parties in a dispute resolution process should be treated equally and fairly. These rules spell out behavior and procedures that people consider fair, but tend to abandon when carrying on a fight.1
For example, behavioral ground rules for negotiation or mediation may be that people must talk one at a time, that they must listen carefully to their opponents’ statements, or that they must treat each other with dignity and respect. Typically parties agree that no one is permitted to dominate a discussion or claim special privileges unless the entire group agrees to grant them. Derogatory language or attacks on other people’s values or culture are usually not permitted.2
Other rules apply to processes and procedures. For example, process ground rules for mediation might say that people are expected to be on time for meetings, that substitute representatives must be approved before the meeting occurs, and that observers are (or are not) allowed. Rules for managing participation may also be instituted. For example, should participants raise their hands and wait to be called on, or should they speak freely?3 Other process rules concern how draft documents will be circulated and reviewed and how to reschedule meetings if necessary.4
Procedural rules may also define the role of observers, establish the closed or open nature of the meetings, and define ways to deal with the news media. Mediation ground rules usually require that the conversation that takes place in the meeting room be confidential, unless an explicit agreement is made to release particular information. In many cases, parties agree not to characterize the position of any other party in public statements or in discussions with the press, even if that party withdraws from the negotiations.5 When participants are negotiating public policy issues, it is important that the process be accountable and open to scrutiny. However, an excessively public negotiation can reduce creativity by increasing reluctance of participants to present new ideas and discuss issues openly.6 Such issues should be kept in mind when establishing ground rules.
Often the facilitator or mediator should help the parties develop rules that will guide group members’ interactions with the press. This includes guidelines on who will talk with the press, who is responsible for writing press releases, how often reports will be released, and what sort of information should be provided. Participants might also agree not to reveal the content of a likely settlement until everyone involved has accepted it.7
Ground rules also define the role of the person in charge of the meeting. Rules pertaining to the intermediary’s role in mediation or consensus building might include the idea that the intermediary will set an agenda for each day’s meetings, which needs to be approved by the parties, and that the intermediary will lead the discussion, giving each party an equal amount of time to talk. Such rules also serve to clarify the degree of authority afforded to a mediator or facilitator. While some processes provide a mediator with considerable discretion, other processes restrict the mediator in terms of budget, staff, and involvement.8 The roles and responsibilities of the mediator or facilitator vary across cases.
There are also rules to define the boundaries of substantive discussions, including what issues will be addressed, the type data that will used, and methods of obtaining information.9 An example of a rule setting the boundaries of discussion might be one that defines which topics are to be covered and which not:”discussion today will focus solely on the issue of water usage, and will not go into a discussion of mineral rights.” Rules surrounding the agenda might also establish the expected length of time a process will take and set down fixed time lines or deadlines.
From time to time, the groups may change the rules during the course of the negotiation. Whether they are adding a new rule or modifying an existing one, the entire group should approve the change before it’s adopted.
Instituting Ground Rules
When the disputants are familiar with each other, and with the process, ground rules may simply be assumed rather than stated outright. If the disputants have not worked together before, however, or are not familiar with the process, explicit ground rules can be very helpful in focusing the discussions in a productive way and preventing the process from becoming side-tracked by unnecessary procedural disputes. There is no one correct set of ground rules. Different approaches are appropriate in different circumstances.
It is the facilitator’s job to help the group design its meetings in a way that is consistent with the core values of facilitation. In many instances, ground rules are developed by the facilitator before the first meeting and are sent in draft form to the parties for their review. This proposed set of ground rules contains guidelines for constructive discussion. Before or during the first meeting, the program manager talks to participants about these guidelines to make sure that the rules are clearly understood.10 Rules will effectively guide group members’ conduct only if they find them acceptable. Therefore, all participants must review the ground rules to ensure they begin negotiations with shared expectations.
Ground rules are often based in part on concerns raised by parties during preliminary analysis interviews where parties are asked to suggest rules. Groups are generally more committed to rules they have freely chosen. However, in some cases it may be more appropriate for the facilitator to provide a set of ground rules. One option is for facilitators to provide a complete set of ground rules and ask members to select those they consider useful.11 The facilitator can then send a document that describes the proposed ground rules to all participants so that members can make an informed choice about which ones they wish to use. Another option is for facilitators to list the rules they commonly use, and then ask for additional ground rules from participants. Facilitators can ask participants to think about what they, as individuals, need to ensure a safe environment to discuss difficult and controversial issues.12 Finally, some believe that the best way to create ground rules, time permitting, is to allow the participants to generate the entire list.
In general, the parties should discuss ground rules together and develop a set they all agree upon. Rules should be adopted by the group at the first or second session and any questions or concerns about the ground rules should be addressed early on. It is crucial that all parties accept and agree to use the ground rules. The first acknowledgment of a rule violation can be phrased as a reminder. If additional violations occur, reminders can become more forceful: “You have violated the ground rule that prohibits personal attacks. I ask you to refrain from such comments.” The chairperson can ask the participant to leave the session if the violation continues. This is important, because if even one person refuses to abide by them, they will become meaningless. Also, if facilitators do not set a tone of strict adherence to the items early in the process, it may become impossible to enforce them later. Facilitators should also be sure their own participation conforms to ground rules.
Rules may be written down or conveyed orally. When parties will be working with each other for an extended period of time, especially when trust is low, they often use written ground rules. If parties have already established a positive working relationship or they only plan to meet one or twice, they may be more likely to use spoken ground rules.13
Why Are Ground Rules Important?
Ground rules are important because they establish the purpose of the dispute resolution process at hand and shape how meetings will be conducted. By setting down rules about who may participate and how decisions will be made, parties can ensure that these processes run more smoothly. In addition, ground rules institute safeguards to protect parties and discourage needless escalation.
A group’s process is more effective when members explicitly identify and commit to following rules about how they will act. Instituting ground rules against personal attacks, for example, can help to keep uncertainty or hostility from becoming issues in themselves. Ground rules for attendance can likewise be important, as the group may be prevented from making decisions or may lack critical information if a key person is absent.15
The ground rules that the group agrees to follow will affect the kinds of interventions the facilitator makes. For example, ground rules can help to create a supportive climate for communication between present or former enemies as well as individuals who have undergone social severe social trauma. Rules such as no interrupting, giving every participant equal opportunities to speak, and refraining from judgmental and caustic responses all help to create and sustain safe spaces for communication and foster a sense of security among participants.
Adopting procedures also allows parties to reach agreements early in the discussions. Success early on in developing ground rules demonstrates to skeptical parties that they can indeed reach agreement with one another.16 This is a first step towards working together effectively to solve the problem at hand. In addition, discussing rules helps to provide guidelines for behavior that participants are likely to follow as they contribute to making the rules.
However, there is sometimes a danger that ground rules will privilege the already privileged groups in a given dialogue or negotiation. For example, in a dialogue about race, white participants will often support ground rules meant to keep anger out of the discussion. But anger is a key element of racial problems, so it needs to be expressed and dealt with.17 Facilitators should try to ensure that that the rules established for discussions and dialogues do not further oppress historically oppressed people or prevent any group of people from feeling safe in the discussions. (Though it is commonly asserted that “privileged” groups need to be made uncomfortable to learn, meaningful learning and conflict transformation cannot take place if some groups feel so uncomfortable that they do not speak openly about their issues and concerns.)