Working with the enemy: cooperation, not annihilation, may be the only way to secure lasting solutions in policy wars.

I love to win. As a lawyer who represents trade associations, I enjoy nothing better than beating the opposition into submission - especially when the adversary is the government. Association members frequently get caught up in "war fever" when their association is involved in a lawsuit. Justifiably, a successful legal action often serves as a rallying cry for associations.

This win-lose approach to problem solving is not confined to the courtroom. As a society, we frequently consider destroying an adversary as the only solution; according to this mind-set, win-win negotiation is a sign of weakness. Across the years, however, I have noticed a disturbing trend emerging from this winner-take-all strategy: Relationships are destroyed, and the loser eventually gets even. Short term, the victor gets the spoils. Long term, the loser gets revenge.

Why the win-lose approach fails

Three years ago, I learned a new analysis of government decision making from Jim Palmer, an associate director of employee benefits at Procter & Gamble. Palmer is also the past chairman of the Workers' Compensation Research Institute, a national think tank in Cambridge, Massachusetts.

Palmer believes there is no better example of the negative effects of the win-lose approach to problem-solving than in government. Palmer describes the governmental decision-making process in these terms: A stakeholder group, frequently represented by a trade association, has an idea and proposes the idea in the form of a law. The trade association floats the idea to assess the reaction of other constituency groups. The idea becomes a "duck."

The other side immediately appears, armed with shotguns to shoot down the duck, which is soon wounded or killed. The other side floats its own ducks and then it's the first group's turn with the shotgun. Eventually, a patched-up proposal (call it a wounded duck) becomes law. Who wins? The side with the biggest or most bullet-proof duck.

Power is fleeting, of course, and in a few years power shifts. Now last year's loser becomes the big duck in town. This new power group floats an idea to change the previous law. The endless cycle of duck hunting continues. Is this any way to make value-based decisions?

Ending duck-hunting season

Consider, if you will, what happened in Ohio, where the workers' compensation system had become a duck hunter's paradise. Employers, labor, health care providers represented by their respective trade associations, and the Ohio Bureau of Workers' Compensation were so used to blasting away at proposals that no one took any new idea seriously.

A few visionary leaders from stakeholder trade associations questioned this approach. Surely, they argued, it was time to bring an end to the cycle of idea killing. They envisioned a new workers' compensation system under managed care that would benefit all parties. Decisions would be based on data and consensus, not power or political influence. It seemed worth a try to me.

A series of meetings were held with trade associations representing labor, employers, health care providers, and the state. (Ohio's workers' compensation system is state operated) Incredibly, this was the first time these association representatives had formally met as a group.

As I settled in to this awkward process of cooperation, I began to realize that l was experiencing something bigger than designing a new model for workers' compensation. I saw a new way both to build consensus and to deal constructively with conflict. Now, three years into workers' compensation reform, I believe that these principles are adaptable to long-standing conflicts that all associations face.

Cultivating leadership support

The process begins by looking around and asking yourself, "Is it broken or in need of repair?" The "it" can be anything. How effective is your legislative program? Your marketing efforts?

After deciding that a program or policy needs work, ask yourself if others agree with you and are ready to lead the challenge. Are there leaders within other trade associations who are interested in solving a problem for the long term? Are they willing to join you in your efforts to bring past adversaries to the table if necessary? Does the leadership within your own association support your efforts to pursue this dialogue?

In Ohio, leaders from all interest groups involved with workers' compensation were tired of piecemeal, short-term approaches. The system was broken and in need of a major overhaul. Ostensibly, the workers' compensation program helped injured workers receive quality care. We were not achieving this goal.

Our process began to take shape when one association executive approached another to see if together they could coordinate a meeting of the trade organizations involved in workers' compensation issues. Although their associations were often adversaries, the two executives had a professional relationship based on trust. A first meeting was convened among a small group of association executives. Some were old allies; some were old enemies.

During our first session, the association representatives reached agreement on several broad principles that became the basis of decision making for many issues raised during future meetings among a much larger circle of stakeholders. The key to obtaining agreement during our first meeting was the willingness of the participants to set aside the tough issues and to concentrate on those issues on which consensus was likely.

For example, we agreed at the first meeting that the success of the new system depended upon our willingness to cooperate as stakeholders. While this may seem obvious to those outside the process, employers, labor, and health care providers had never cooperated in the past as stakeholders within the workers' compensation system.

As you begin your own consensus process, don't try to solve the group's most difficult problems in your first sessions. Try to get the participants working on the easy, "slam dunk" issues by identifying common areas of agreement. Once the group has easily reached a few agreements, you are more likely to succeed on the more difficult ones.

Developing core leaders

In Ohio, our first series of workers' compensation meetings also helped develop a core leadership group that was committed to cooperative discussions. Once this first group of leaders saw that it had made tangible progress on some issues, members of the group were more inclined to move the process forward.

As the meetings continued, it became obvious that this core group of association leaders was essential to consensus building. Ordinarily, an association's rank-and-file members or its volunteer elected officers can't commit the time and resources to a major consensus-building project. Much of the necessary work must fall squarely on the shoulders of the association executive.

At the outset, it is essential to bring all of the groups or individuals who have a stake in the outcome to the table. Before excluding anyone, ask yourself if lack of involvement by an individual or group could block the implementation of your final plan. If so, count them in.

In Ohio, we initially failed to include several stakeholders, which triggered an attempt to undermine our efforts. Recognizing our mistake, recent meetings have included the leadership of all groups with a stake in the outcome. I have formal that when an association's leadership is represented, it becomes committed to the process even though disagreements still exist on substantive issues.

Establishing operating principles

No consensus-building project can move forward without a vision of where the stakeholders want to go. This can be difficult, especially for old adversaries meeting for the first time. They are not apt to speak in terms of vision or mission during the opening stages of discussion.

It is difficult for any new group to develop a mission or vision statement when little trust exists. In fact, our group did not produce a mission statement until 2 1/2, years after the project began. However, you can reach agreement on where everyone wants to go without labeling the results a mission or vision statement. A professional facilitator can suggest broad questions to the entire group in such a way that operating principles will emerge that can eventually be molded into a mission statement. But call it what you will, a common vision must emerge over time.

In our case, a professional facilitator asked each of us at the beginning of the process: "What does a first-in-class health care system look like trader workers' compensation?" Our common responses became the basis for the development of specific operating principles.

Two key principles that quickly emerged from the facilitator's question were, first, an agreement among all stakeholders that the new system would be evaluated through the use of data and, second, that this information would be shared and used to enhance the quality of treatment for injured workers. In the past, politics and hidden agendas clouded most issues related to the operation of the workers' compensation system. Data and the interpretation of data was unreliable, rarely shared, and used in a punitive manner.

For example, utilization review of providers was always considered a way to control costs without consideration of providers' needs. The new system, however, would share information to improve treatment quality. Data obtained from evaluating providers would be used to educate doctors on treatment patterns that best served injured workers. This educational approach was a significant departure' from, past punitive models of utilization review. The key to achieving agreement on this and other difficult issues was the establishment of consensus operating principles early in the process.

Ultimately, we were able to draft a mission statement that captured the central focus of all operating principles: "We will, through communication among diverse groups utilizing the knowledge of all partners', establish an ongoing participatory tool that promotes proactive involvement, problem-solving, and an atmosphere of trust and cooperation among customers and partners in the Workers' Compensation System in pursuit of continuous improvement."

That paragraph took 2 1/2, years to emerge. Considering its stakeholders were barely speaking when we started, it is an astonishing achievement.

Identifying interests

One of the most important responsibilities of any consensus-building project is to identify the real interests or needs behind the positions of the participants. While it's easy to learn the position of an individual, it's much harder to understand why the person holds that position, since the reasons behind the position are frequently not stated.

Individuals often engage in positional bargaining where one person advocates a position and the other person counters with another position. Positional bargaining is usually a regurgitation of demands. To build consensus, you must find out the reasons why a person holds a particular position.

As discussed by William Ury in Getting Past No, an easy way to identify the interests or needs behind a stated position is to ask questions. This will lead to additional, nonthreatening questions. "Why is this important to you?" was a question we frequently asked during the workers' compensation project when a participant stated a position. People have a tremendous need to be understood. When you ask sincere questions and listen to the answers, a world of opportunity for problem solving emerges.

Pinpointing reasons behind positions is a little easier than uncovering hidden agendas. It usually takes some probing to find interests; it takes a shovel to dig out hidden agendas. There is no easy way to discover hidden agendas, but the workers' compensation project illuminated several helpful techniques.

The simplest way is to build an environment of trust. The consensus-building process works best when people do not distrust one another and real interests can be brought to the surface. Trust develops across time. With more time together, even hidden agendas come into view.

One way to develop trust is to group old adversaries into work groups. The ground rules laid out by our professional facilitator required participants to listen to one another and ask nonthreatening questions within these work groups. Often, this is the first time that adversaries have ever listened to one another. When you are sitting next to an old adversary and asking nonthreatening questions, the interests behind the position frequently emerge.

You also begin to see the other person's viewpoint. You don't have to agree, but understanding that viewpoint allows you to move forward to deal with the interests of each party. As Stephen Covey so wisely states in The Seven Habits of Highly Effective People, "Seek first to understand. Then to be understood."

When you suspect that one of the parties is not honestly disclosing the true interests behind a position, it is useful to take that person aside. Move to a more comfortable setting and ask, "What's really going on here? Why are you taking this position? We can deal with it when it's on the table, not trader the table."

Using this technique with one of our stakeholders, we discovered that he might lose his job if he didn't maintain a particular position, even though the position appeared inconsistent with past discussions. Recognizing his real interest allowed us to privately brainstorm ways to protect his position. We did not want to see him lose his job, so we fashioned a solution that allowed him to save face with his constituency group but gave us the results we sought.

Another technique we used to identify real interests behind positions was to select two representatives who held opposing views on a subject to go out into the hall to try to work things out. They were told to question one another about the reasons behind their positions and then attempt to reach a resolution. Amazingly, the two opponents frequently came back with a workable solution when they were able to talk privately without the attention of the group. On those occasions when a solution was not resolved, the issue was placed "in the parking lot" for later discussion.

Here are some other helpful guidelines for building consensus.

* Try to find objective criteria for decision making. Emotional arguments will fade if decisions can be based on objective criteria. We agreed to resolve conflicts in the workers' compensation program by collecting data with which we could judge quality of care. All stakeholders worked together to determine these quality indicators.

* Don't worry about the law. This may sound odd coming from an attorney, but you will not think creatively if decisions are confined to the law. Consensus-building groups thrive on brainstorming. There is no bigger barrier to creative brainstorming than a lawyer saying, "You can't do it because the law says so."

Of course, this doesn't mean you can ignore laws that forbid price fixing, discrimination, and so forth. But it does mean you can ignore laws that the group intends to change once consensus is reached. It is amazing what you can accomplish when collective energy is directed toward solutions - not conflict.

* Accept that some stakeholders will resist the process. Building consensus is hard work. It is much easier to revert to old habits, and some people will not accept the process. Some participants will leave meetings, return for short stays, and bad mouth the process in the hallway. An amazing thing happens, however, if you can keep everyone in the room. The collective energy of the process will frequently sway even those stakeholders who hold extreme positions. Some participate and become committed to the results. Others become isolated when their arguments are not rational and logic soon becomes the basis of decisions.

Keeping everyone in the room full time was not easy for our workers' compensation group. Some naysayers would wander in and out of discussions. Ultimately, the stakeholders decided as a group to require full-time attendance during a future two-day session, recognizing that commitment only comes from those who fully take part in the process. Surprisingly, representatives from most stakeholder groups participated for the entire two-day session, which strengthened their commitment. There is no magic formula to gain the commitment of groups that refuse to participate. March forward without them, always keeping your eye on your mission.

* Be prepared to fail. This method is not foolproof. Success depends on the magnitude of the conflict and the leadership abilities of those who embark on this journey. For those of us committed to the workers' compensation project, it has been difficult to think in terms of failure, but it still remains a possibility. We've even defined failure. For us, failure is approaching the legislature as individual interest groups in preparation for duck-hunting season.

* Trust the process. Working with your enemies takes time. Impatience sets in. The good old days of all-out war look better in retrospect. The long-term benefits of building consensus, however, far outweigh the short-term benefits of waging confrontation.

If you are thinking about making peace with your association's traditional enemies, here are a few questions to ask yourself:

1. What organizations does your association traditionally consider as adversaries?

2. Are people on both sides tired of past adversarial relationships getting in the way of your effectiveness on larger issues?

3. Is there a shared vision that is stronger than the adversity?

4. Do you have the leadership skills to convince others that your way is more effective?

Conflict doesn't have to end in stalemate. There is another way. While you don't have to see eye-to-eye with your adversaries on all issues, you may be surprised to find that you have many interests in common. You may even discover that getting together can be better than getting even.

Robert P. Sherman is a principal with Karr and Sherman, a legal professional corporation in Columbus, Ohio. His e-mail address is [e-mail].