Transformation to Case Study

Hill People Page In 1997, when Kirk Watson was running for mayor, Austin was in the drunken throes of enjoying a decade-long spell of unprecedented, economic growth. Unemployment was on the downswing. Corporate relocations and expansions were on the upswing. Venture capitol and new business creation was rising to an all-time high. Office buildings, apartment complexes, new home subdivisions, retail centers, along with all the roads to support them, were sprouting up all over the city.

As a consequence, the city populace had become polarized in their feelings about growth and had split into two political camps. There were the developers who welcomed Austin's transition to a large, thriving metropolis much like the mega-cities of Dallas or Houston, and there were the environmentalists who didn't want Austin to be a city at all, but wanted to go back to the hip college town that was the Austin they knew in the 1970s.

At the core, Watson's successful campaign message laid a new middle ground, shifting the debate away from whether or not Austin would accept being a large city, toward what kind of large city Austin would become. Most reasonable people accepted that turning back the clock to the 1970s and sending two hundred thousand hippies-turned-microchip-makers back to wherever they came from was impossible. They also realized that if Austin's incredible growth was not better controlled and managed, it would destroy the very things they loved about Austin in the first place.

During his campaign, Watson often said "we can't kill the goose that laid the golden egg." Watson was the right messenger at the right time. His forward thinking call for unity and managed growth helped start to break down the antagonistic, black or white line between environmentalists and developers.

However, despite his skill as a politician and his good intentions, Watson soon became involved in a complex land-swap deal in which he found himself having to choose between a group of anti-growth Austinites who had helped win him the election and the preservation of a piece of land key to the survival of an endangered species.

In choosing to vote with his supporters (who didn't want to see a bird species become extinct but also didn't want increased development in their neighborhood) Watson learned that there is often no possible compromise in matters of urban development that can serve all sides. Sometimes one side simply loses. However, by using mediation techniques, Watson and the city helped make the situation easier for all of the parties concerned.

Introduction On the 1997 Austin, Texas campaign trail, mayoral candidate Ronney Reynolds consistently referred to mayoral candidate Kirk Watson as a "personal injury trial lawyer" because based on the polling, Ronney Reynolds knew that 74% of voters had a natural disdain for all trial lawyers.

Every time Reynolds attempted this jab in a public setting, Watson would respond with a solid left hook by referring to himself as "not just a personal injury trial lawyer, but a pint-sized, personal injury trial lawyer." Grandiose in vision and humor, but definitely small in stature, Watson's instincts told him that the voting public naturally embraces people with the capacity to poke fun at their own shortcomings.

It turned out that Kirk Watson's gut instincts were stronger than Ronney Reynolds's public opinion polling, and on June 21, 1997, the pint-sized personal injury trial lawyer from Saginaw, Texas, was sworn in as the new mayor of Austin. Of course it didn't hurt that Watson raised more money through political contributions than any local candidate in Austin's history, and that he had the backing of every environmental group in central Texas, virtually every neighborhood group across the city, and a good showing among local business leaders.

Watson had won the election, but he was soon to realize how much more difficult governance is than campaigning. For years, Austin developers and environmentalists had been pitched in trench-style warfare against one another to determine Austin's fate in the new millennium. The developer camp would fight any projects, any ideas, or any political candidates that emerged from the environmentalist camp. Similarly, the environmentalist camp would fight any projects, any ideas or any political candidates that emerged from the developer camp.

The value or the merit of the idea or the quality of any candidate's leadership was far, far less important than which camp they belonged to within the realm of Austin's municipal politics. Like the national political landscape of democrats and republicans, Austin had a two-party system of developers and environmentalists. It was the fight that mattered most, but neither group had been able dominate the fight so far.

Consequently, when Watson became mayor in 1997, nothing of any major significance on a civic level had risen above the conflict and been accomplished for a very long time. Watson won in large measure because the people of the city believed that he was the best hope for breaking such this long-running stalemate. Watson had certainly campaigned on his ability to do so. In other words, he had campaigned - and won - at least to some extent because he had promoted himself as a mediator between the two different camps.

Like most political campaigns, Watson's campaign was chock full of promises. Watson would not raise taxes, but he would grow the tax-base to enhance city services through annexation and new downtown development. Watson pledged to bring the police department to full staffing levels. There would be 3,000 new residential living units built in the urban core over a five-year period. Watson promised to solve Austin's mobility problems by synchronizing the city's traffic lights.

He committed his administration to limiting growth in the Hill Country west of Austin, and to directing more growth to the impoverished east side of town where the city needed more economic development. He promised to support new bonds to buy land for open space and parks. He would end what he called Austin's "politics of blocking" where on any given issue one side's only goal was to block the other side, regardless of the merit of the issue.

Watson's central goal was to bring peace to the local political landscape, ending the decades of conflict between the developers and environmentalists. To do this, he encouraged people to get beyond the need for absolute perfection when trying to seize new opportunities. In Watson's mind, the demand for 'perfection or nothing' had caused too much local fighting and had led to a whole lot of nothing. The pint-sized trial lawyer had a ten-gallon agenda.

He would promote racial harmony, social equity, and if all that wasn't enough for your vote, his TV ads also promised to "give Austin neighborhoods a stronger voice about new development plans in their neighborhoods." But even as candidate Watson was in the final days of licking stamps and handing out fliers to win an election - helped in large part by a group of citizens living along Highway 2222 know colloquially as the Hill People or as CONA, an acronym for Coalition of Neighborhoods along Highway 2222 - the seeds for an early and serious conflict that Watson would face were already being sown.

City employee Junie Plummer - happily oblivious to the political storms brewing outside her 14th floor office on Town Lake - was wrapping up another full day at the city by putting the final touches on another beautiful real estate deal for the city of Austin. In what Junie considered an almost poetic transaction, she would help the city reach several major policy goals and get rid of a few old thorns at the same time.

The land at the center of this deal was called 'Park West." The city owned it and Junie was selling it on behalf of the city to a real-estate firm out of Houston called Cypress Realty. Cypress Realty had won a competitive bid process and intended to build apartments, office buildings and some retail on the land. Junie knew that the demand for apartments and offices around the Park West site was very high. It was one of the most desirable areas of the city in which to live.

Park West was 92 acres with all necessary utilities and great access to highway 2222. Park West had no endangered species issue. And a firm called Cypress Realty was proposing to buy Park West for a whopping $3.5 million dollars. That amounted to a sale at over $38,000 per acre. This was considerably more than the $1,500 per acre that the city had paid for the land only four years earlier. Junie had plans for the $3.5 million from the sale of Park West.

She would combine it with $1 million from a federal government grant, and she would spend $4.5 million to buy another plot of land known as the Ivanhoe tract -- a pristine 942-acre piece of undeveloped land across the street from Park West. If the city didn't close on Ivanhoe by August 11th, less than two months away, the owners were planning to put a major new development on the land. And unlike the Park West site, the Ivanhoe site was home to an endangered bird.

We had to buy Ivanhoe," Plumner said, who had spent seven years trying to find a way for the city to do just this. "Ivanhoe was the most important macro site for the Golden Cheek Warbler in the entire Bull Creek Watershed. It was also more important for protection of water quality in Bull Creek. If we didn't buy Ivanhoe, thousands of homes were going to be built there and that would mean goodbye Golden Cheek Warbler.

Also, residential development leads to more traffic than offices, which is what Cypress was going to build on Park West." Junie was good at her job, so good in fact that she had been offered higher-paying real estate jobs in the private sector many times, but she liked working for the good guys. She put her heart into her work and she felt good that she could help make it possible for an entire species to continue its existence on planet earth.

"How many people get to make that kind of contribution?" she always asked herself. A teachers' retirement fund in Canada owned Ivanhoe. They had bought it as an investment before the 1980s land bust in the region, and when the bottom fell out of the economy, unlike most other speculators, they had diligently continued to make their payments on Ivanhoe. As a result that didn't lose their land back to the bank as did many other investors.

Over the years, the retirement fund had sunk hundreds of thousands of additional dollars into Ivanhoe, waiting for the economy to rebound. They expected a solid financial return on their investment, and the fund managers didn't care one iota about endangered species or clean water in Austin, Texas. They cared about teachers in Canada and their ability to retire comfortably. Just to negotiate the appraisal on Ivanhoe had taken Junie six months, but she had finally negotiated a price.

Now, with the sale of Park West to Cypress Realty, and the federal grant for $1 million, she had found a way to come up with the money to buy Ivanhoe. The city of Austin had bought Park West originally intending to dedicate it as permanent preserve habitat for the Golden Cheek Warbler, the Black Capped Vireo and four cave invertebrates -- all of which were federally listed endangered species that live around the Balcones Fault area.

In order to comply with the Endangered Species Act, the city was required to create a habitat plan, based on good science, that would set aside enough habitat for the seven endangered species to survive. When Park West and the other tracts were purchased, over 100 local politicians, environmentalists and government officials held a press conference to celebrate the purchase.

Jake Pickle, Austin's congressional representative at the time, was on hand to comment: As a people, we have dedicated a certain portion of our environment and heritage for all time and for our children.

We must remember that this is just the beginning." Elements of Conflict The conflict that developed over this proposed sale in some ways mirrored the long-standing conflicts in Austin between development and conservation, but it also involved a number of other dynamics, including the politics of neighborhoods - in which no one wants their own neighborhood to be affected by congestion, pollution, etc.

The Ivanhoe tract was an essential element of the Balcones Canyonlands Conservation Plan (BCCP), a habitat acquisition plan by the city of Austin to save endangered species that had three basic components. First, it laid out the absolutely critical pieces of land (i.e. Ivanhoe) that needed to be purchased fee simple by the local government partnership for protection.

Second, it identified areas where there endangered species may live, but that could be developed if the landowners were willing to donate a portion of their land to the preserve as mitigation for the impacts of the development. Third, if a landowner outside the critical areas had endangered species on their property and they wanted to develop it, and they did not want to set aside acres for preservation, they could donate cash to a mitigation fund to be used to buy the critical pieces of land to be bought.

The BCCP was basically a policy engine designed to protect approximately 30,000 acres of endangered species habitat as quickly as possible. Until the 30,000 acres were set aside for permanent protection, the federal government was threatening to restrict all development on private property anywhere any of the seven species were known to possibly live.

As the economy began to recover in the early '90s, this threat from the federal government to block development created tremendous tension between top city officials, who had to make land-use decisions every week at city council meetings; local developers who were ready to start making money again, landowners who were ready to take up arms to protect their property rights; and the Fish and Wildlife Service officials who were under constant pressure from their higher-ups in Washington to make the Endangered Species Act at least look like decent legislation.

To diffuse all this tension around endangered species, the city was working double-time with county officials and the Fish and Wildlife Service to buy the 30,000 acres they needed to complete the BCCP. The parties involved were working so fast in fact, that the city bought the Park West land in 1993 before doing the scientific study to determine where the birds and the bugs really lived.

After the biologists studied the actual nesting habits of the warblers, Park West was found to be low-grade habitat compared to many other pieces of land in the Balcones Fault area. The Ivanhoe Tract was far more important to the BCCP, and it was also a more important tract to preserve clean water in nearby Bull Creek. Park West was 92 acres of low-grade habitat with less importance to Bull Creek. Sell 92 acres. Buy 942 acres. More land saved. Better habitat for the birds and the bugs preserved. Cleaner water.

No additional tax dollars needed. The only remaining issue to finish the Park West deal was for the city council to approve a zoning change on the 92 acres. The city attorneys had advised Junie not to get too involved in the zoning case. By law, the city council had to make the judgment on zoning, and because the city was both the applicant and the granting authority, an unbiased process had to be assured.

If it wasn't unbiased, it could be construed as the city engaging in contract zoning, which would be a conflict of interest and could be against the law. It was at this point in the process that the carefully constructed deal began to unravel. And the group most responsible for helping to unknit the plan was the association of homeowners living along Highway 2222, such as Howard Chalmers. Chalmers remembered watching the mayoral campaign closely.

As a marketing consultant who had done public relations work to help large-scale developers get their projects through city bureaucracies, Chalmers was not a self-described environmentalist. However, as a resident with a beautiful view from his back porch, Howard Chalmers liked Kirk Watson's neighborhood and environmental friendly message, as he describes below: listened to Watson's campaign with interest. He believed a lot of what needed to be fixed in the city was neighborhood based and I agreed. I had never known of him before he ran for mayor.

If there is one word that I remember thinking it was 'reasonable.' He seemed reasonable, but at the same time, I wondered if it was for real. I had to overcome my natural bias against trial lawyers. For a long time there was no development along 2222. Between the endangered species issue and the economic dive of the 1980's, new development in the area had been essentially at a stand still for a long time.

We hadn't seen a building go up for almost ten years, and we took it for granted that it would stay that way. None of us were active in local politics. Most people out here couldn't even have told you who their mayor was. Meanwhile, during the real estate bust, dozens of speculators had been quietly gaining zoning approvals for huge development projects along the 2222 corridor. They caught us sleeping.

Then, when the economy began to pick up and the bird issue started to get resolved, suddenly we were besieged by major construction projects, huge traffic delays and disappearing views. You better believe that people started having an opinion. Most people moved out here to be away from the city and suddenly the city was coming to us.

To make matters worse for Chalmers and his neighbors, the zoning approvals along 2222 that had been granted during the downturn were based on the planned construction of a six-lane highway that, according to State of Texas traffic engineers, would easily accommodate the additional cars on the road. The Texas Department of Transportation ended up scrapping plans for the highway after all the zoning approvals were granted. The buildings were built and the cars came, but the road never materialized.

Over-development and traffic along the 2222 corridor had gotten so bad in recent years that the Austin American Statesman had dubbed the road "Highway to Hell." We basically had a roadway with the capacity for 39,000 vehicle trips per day, and we had development projects in the pipeline that when built would put over 140,000 vehicle trips per day on that roadway. It was insanity, and the city kept giving projects rubber stamps of approval adding to the insanity.

In response to the insanity they saw, Chalmers and his neighbors started an umbrella neighborhood organization and joined the ranks of Austin's old-guard environmentalists in the fight to limit growth in Austin. We decided to approach the candidates that were running for office and make our case while they were campaigning. We didn't really get into specific development issues, but we did educate the candidates about the traffic issues on 2222 so that when they got into office, they would be sympathetic.

We did work for Bill Spelman, Willie Lewis and Kirk Watson. We actually approached both Watson and Reynolds in the mayor's race, to hedge our bets on that one, but before we had a chance to meet with Reynolds, he dropped out of the race. When it was all over, Willie Lewis publicly attributed his election victory to CONA. Howard Chalmers and the other Hill People's first foray into local politics wound up having a decisive impact on Austin's entire political landscape.

In the same election cycle that put Mayor Watson in office, the coalition of older-guard environmentalists and the newer-guard CONA won every seat on the city council. The Hill People helped to tip the political scales in Austin forever, creating the beginning of the end of Austin's irreconcilable fights over growth. Conflict Assessment and Process Selection Zoning is the city's way to grant a landowner or a developer the legal right to use their property in a specific way.

It is also a way in which the city can - at least if the process is working smoothly - make its intentions clear to its citizens. Zoning can in this sense be seen as a tool of mediation and conflict resolution. Zoning can be residential, commercial, industrial, retail or office and there are dozens of permutations in each category to satisfy any type of land-use ranging from day-care to auto-repair to high-rise apartments to industrial parks.

Zoning is a form of both legislating land use and communicating to the residents of a city how the government intends for that land to be used. Cypress Realty needed a zoning change on the Park West tract to give it legal authority to build its apartments and office buildings on the land it was planning to buy. Once the city council and mayor granted the new zoning status, Cypress would close on the transaction and buy Park West from the city.

The city would then buy Ivanhoe from the Canadian teacher's retirement fund. It all made perfect sense to Junie Plummer. It made perfect sense to Cypress Realty. It made perfect sense to the Canadian teachers' retirement fund, and it made perfect sense to the officials at Fish and Wildlife. It made sense to the current mayor and city council and Junie felt sure that it would make sense to the Mayor-elect Kirk Watson who was assuming the reins of the city in a few weeks.

But the sale of Park West to Cypress Realty made no sense to Howard Chalmers, and it made no sense to several hundred of his neighbors that were fed up with living along the traffic "highway to hell." It made even less sense that the city, the government entity that was supposed to protect public interest and promote public safety, was actually the applicant in a zoning case to sell a publicly owned preserve to a private developer. Chalmers remembered the surprise when he first learned about Park West.

Howard Chalmers knew that if selling Park West made no sense to him and his neighbors, this meant there was a decent chance that it would make no sense to Mayor Watson and the other political candidates that the Hill People had recently helped elect to office. Chalmers began assuming a leadership role in the effort to kill the zoning change on park West. This case provides an excellent real-world example of the ways in which various forms of mediation can be used.

This case does not meet some of the formal requirements of mediation or alternative dispute resolution since there was no process of bringing in an outside mediator and establishing formal ground rules ahead of time. However, the mayor (and by metonymic extension the city) served as a facilitator in trying to bring about a resolution to the problem. The new mayor stepped into a situation in which the major problem - more important even than disagreements over land use - was a lack of clear communication.

Watson tried to increase the degree of communication among the groups and individuals involved, one of the most important tasks of a mediator. As Susskind (1989) argues, every group provides what seems like an infinite number of opportunities for conflicts among its members. As a result, any group that maintains its cohesion must have both formal and informal rules to minimize misunderstandings and conflicts.

Each member of the group is expected to learn and follow these rules, although it should be noted that people often learn the norms of the group so thoroughly that they are hardly aware of them. Leaders must ensure that such norms are in fact followed, which is what Watson stepped in to do.

One of the most important ways in which he did this was by helping to create a sense amongst the participants that they did in fact belong to a single group, thus avoiding the extreme factionalism that had marked city politics before his term. Chalmers describes the problems in communication that he saw - a lack both of information passing back and forth amongst different groups as well as a lack of consensus on the terms being used.

Any mediation process that will succeed has to bring people together in a fact-finding and definition-creating process. We learned about the zoning hearing when we found the zoning notification signs in the trash along 2222. They were supposed to serve as public notification, yet they were in the garbage. Our first reaction was that preserve is preserve.

Why are we selling preserve to developers? When we made inquiries into the case, we found out that the city real estate division was taking steps to accomplish certain goals, but they made a decision to deal with the devil to do it. It made no sense that they had previously touted the habitat value of Park West, and suddenly they decided it was not valuable. They sent Junie Plummer out to talk to us and she was oblivious to people's feelings.

She was like talking to the good witch from the Wizard of Oz, but in patronizingly goofy way. That's when we realized we were facing a full blown assault on our neighborhood. Watson stepped in at this point to diffuse this sense of assault that the members of CONA were feeling. An expert politician never goes into a meeting without knowing who they are meeting with, what issue is going to be discussed, and the position of the other person.

An expert politician knows the outcome of every meeting before it even starts, and has their staff handle as many meetings as possible. An expert politician does not meet with people who did not support their candidacy without making them feel at least some degree of pain for their poor early judgment. Most important of all, an expert politician never, ever, ever makes a specific commitment to someone during a meeting, either to a position or to a timeframe.

This is because invariably, she or he is only getting part of the story during the meeting, not the whole story. Instead, no matter how good a cause appears or how much of a no-brainer it appears to be, expert politicians say things like "That sounds interesting. Let me do some investigating and get back with you;" or "I'm truly intrigued.

I would like to think about this a little on my own, talk to a few people, and then I'll let you know;" or "Let me see what I can come up with over the next while." During his second week in office, Watson was a good politician, but not yet an expert politician. Chalmers arrived for the meeting with Watson with ten other neighborhood leaders in tow.

Watson thought he was meeting with Chalmers and perhaps a couple other people to talk more about traffic issues on 2222, but instead he met with a representative from every single neighborhood along 2222 to talk about the upcoming zoning case for Park West. Chalmers remembered Watson listening intently to each person in the meeting state their case. They voiced support for preserving habitat. They touched on traffic. They mentioned water quality.

They hit all their arguments, putting the strongest emphasis on the abnormal process leading up to the Park West zoning case. They noted that the city was not only the applicant in the zoning case, but also the granting authority. They skirted at the edge of suggesting that the city was illegally engaged in contract zoning. At the end of the meeting, Chalmers remembers Watson's saying "Guys, I have to say, this doesn't sound kosher.

I am going to do some checking on this, and if this issue has not gone through a reasonable process as you say, you will have my support." The CONA representatives left Watson's office smelling victory for their cause. Jerry Harris also called Watson's office during Watson's first week as mayor. Harris knew his friend Howard Chalmers would be calling Watson to make the neighborhood case and Harris wanted to be sure to make the position of his client. Cypress Reality, known to the new mayor as soon as possible.

Harris's repeated calls to Watson's office weren't returned for several days, and when he finally did get a meeting on the new mayor's calendar, he didn't end up meeting with the mayor. Instead, he met with the mayor's staff to make his case. Process of Mediation The situation that developed can be seen to be an ideal one for the application of Alternative Dispute Resolution (or ADR) Alternative dispute resolution is actually a collection of dispute resolution techniques, each of which involves the use of a mediator.

In formal cases of resolution, that mediator is always a neutral third party, someone who is engaged in the process but has no actual stake in it. The advantages of such a system of dispute resolution should be obvious to anyone who has ever lived with other humans. It's all to easy to get involved in conflicts, and often these conflicts gain a certain life of their own - as they had in Austin.

People come rather easily to the point that they are arguing just to argue rather than arguing to win a specific point. Watson was not a neutral into a dispute but one of the players. He was also not neutral in the sense that he was aligned with CONA because the debt he owed them for their support during his campaign.

However, his primary goal as mayor was to serve as a mediator between the camps that had made Austin city politics such a quagmire for so many years, and so to some extent he was simply on the side of political progress and municipal piece. He understand - to use Fisher and Ury's terms - that "positional bargaining" tends not to forward either position. In other words, people who come into a dispute interesting only in winning are endangering their chances to do so.

They are using the "perfect or nothing" strategy that had proven to be so harmful in Austin politics. Watson tried to use traditional tenets of mediation to guide all of the participants into a frame of mind in which negotiating the best possible result was what each person and group wanted. In other words, he was trying to move the parties involved toward a spirit of compromise. Outcomes Chalmers remembers one of his first insights about the Park West zoning deal.

"We were sure that the city staff had timed it to happen during the elections." CONA members believed that city officials had deliberately scheduled the zoning during the change in city leadership, because it would make it more likely that the zoning would pass without incident. The reasoning was that a new mayor and city council would have more than enough to figure out in their first few weeks in office and that they would follow the advice of city staff on Park West.

Chalmers guessed that it was his long-time friend Jerry Harris who had devised this strategy for his client. Chalmers knew that if Cypress and the City had Jerry Harris guiding their strategy, CONA would need equally good professional help on their side. We were a group of rational business leaders, and we knew we needed help. We allocated $3,000 and we hired Jim Knias to assess the legal situation and give us advice. We are the only neighborhood that Knias has ever represented.

He always represents developers, but in this case, he made an exception. We also hired Dick Lilly, former planning director for the City of Austin. We hired Lilly to be an information.