Lawyers & Civil Public Discourse: A Process Map

Vol. 18 No. 2

By

Beyond advice and counsel, we use negotiation both to help them form contracts and to resolve disputes. In addition to litigation, we represent clients in mediation and arbitration. We serve as mediators and arbitrators. Most of us conceive of our practice in relation to the judicial branch of government.

Resolution 108 reaffirms existing obligations of civility for lawyers and extends them by explicitly authorizing involvement in a broad array of new processes beyond traditional law. Those of us who work in government and advise executive branch agencies work in this arena. We advise clients on public participation or public comment in hearings before local, state, or federal agencies. This article will map these processes as lawyers encounter them in the policy process, show how they relate to each other, and identify some emerging legal issues regarding their use.

Mapping Civil Discourse Processes for Lawyers

Upstream in the policy process, there are many new methods for a lawyer’s tool kit. These include all the ways that the public and stakeholders exercise voice in governance and policy: dialogue, public deliberation, deliberative democracy, public consultation, multi-stakeholder collaboration, and collaborative public management.[1]

The policy process has many discrete steps. One helpful metaphor is the flowing stream. Upstream, it includes identifying and defining a public policy issue, defining the options for a new policy framework, expanding the range of options, identifying approaches for addressing an issue, setting priorities among approaches, and selecting from among the priorities. It also includes enacting law in the state or federal legislative branch or ordinances in local government. Midstream, it includes developing and adopting regulations in the executive branch, implementing solutions, project management, and program evaluation. Downstream, it includes enforcing law and regulations through agency adjudication and through litigation in the judicial branch. All levels of government (federal, state, and local) engage in these activities; lawyers play a fundamental role.

Just as ADR provides for consensus and resolution as an alternative to adversarial adjudication, so too dialogue and deliberation, or deliberative democracy, provide for civil public discourse as an alternative to adversarial debate on public policy. Dialogue and deliberation differ fundamentally from debate. In debate, participants listen in an effort to identify weaknesses and score points in an effective counterargument. In dialogue and deliberation, participants engage in a reasoned exchange of viewpoints in an atmosphere of mutual respect and civility, in a neutral space or forum, with an effort to reach a better mutual understanding and sometimes even consensus.  Participants listen in an effort to better understand the other’s viewpoint and identify questions or areas of confusion to probe for a deeper understanding.  Deliberation is the thoughtful consideration of information, views, and ideas. In other words, it is a way to conduct civil discourse.  Two models for encouraging deliberation and dialogue are Study Circles and Deliberative Polling, which are detailed in Sandy Heierbacher’s article in this issue.

Lawyers can use dialogue to inform people, consult with them, or help them deliberate on policy decisions.[2] There are many ways for people to have civil discourse and narrow the adversarial policy gap. However, models vary across several dimensions. Professor Archon Fung suggests that dimensions include the nature of the participants, their authority, and their modes of communication.[3] Participants may include the general or diffuse public sphere, open self-selection, open targeted recruiting, random selection, lay stakeholders, professional stakeholders, elected representatives, and expert administrators. Fung describes types of authority as including personal benefits, communicative influence, advice and consulting, co-governance and direct authority. He identifies six modes of communication and decision-processes: participants listen as spectators, express preferences, develop preferences, aggregate and bargain over priorities, deliberate and negotiate, and deploy technique and expertise.

Other commentators have suggested that the quality of dialogue processes depends upon how well they satisfy three criteria: inclusiveness, deliberativeness, and influence.[4] Inclusiveness is getting a broadly representative portion of the relevant community to participate. Deliberativeness is the quality of dialogue, information exchanged, and civility among participants and decision-makers. Influence is the impact of deliberation on policy and decision-making. Other examples include community conversations, consensus conferences, deliberative town meeting forums, choice work dialogues, national issues forums, participatory budgeting, citizen juries, and planning cells.[5]

The easiest way to understand the array of process choices is by mapping them in relation to the functions and role of government.

Figure 1 illustrates where dialogue and deliberation and ADR fit on the continuum through which we make, implement, and enforce public policy in our democracy. Processes vary in the legislative, executive, and judicial branches of government. Upstream generally involves making policy through more legislative or quasi-legislative activity; midstream involves implementing, managing, and evaluating policy; and downstream involves enforcing policy through more quasi-judicial or judicial action. Conflict can and will occur at each of these stages. 

What all voice processes in Figure 1 have in common is collaboration. They are all deliberative and/or consensual as distinguished from adversarial or adjudicative. However, they map differently along the policy continuum. Generally, processes upstream involve broader participation among a larger number of people from the public with less control over the ultimate decision or outcome. These processes for voice and collaboration upstream in the policy process often entail dialogue and deliberation. Midstream processes entail both collaborative public management and public policy dispute resolution. Collaborative public management involves networks of government agencies, nonprofits, and private sector organizations collaborating to implement public policy. For example, has a collaborative watershed management network that includes multiple state agencies, municipalities, resources users, environmental non-governmental organizations, recreational users, and others. It uses dispute resolution methods in decision-making.[6] These involve targeted stakeholder groups in more focused consultation with somewhat more influence on the outcome.

Downstream generally entails ADR. It involves fewer participants and generally those with a legally cognizable stake in the outcome and shared decision-making authority. For example, Superfund litigation is downstream, while negotiating the terms of a permit for using a resource is midstream. However, there are exceptions at every stage of the policy continuum. Superfund litigation may loop back into a negotiated abatement plan overseen by a collaborative network of stakeholders in the litigation. Moreover, it is important to design a sequence of processes to address policy issue across the continuum.

The Legal Framework for More Civil and Deliberative Discourse Processes

This is a new field of work for lawyers, although many other professionals practice in this field, such as the National Coalition for Dialogue and Deliberation.[7] The legal framework for dialogue and deliberation is not well developed. Early ADR proponents had to lobby for legislation expressly authorizing courts and public agencies to develop ADR programs. So too, we need clearer authority for dialogue and deliberation in the policy process. This new field presents substantial legal issues, largely arising out of the statutory framework for public participation and administrative law.

Administrative law encompasses administrative procedure for rulemaking and adjudication, public meetings and sunshine laws, freedom of information, advisory committee rules, and more recent legislation authorizing negotiated rulemaking and administrative dispute resolution.[8] The phrase “public participation” appears as a requirement in many of these and hundreds of other federal statutes; however, generally, it is not defined. Moreover, the various statutes that comprise administrative law have grown from their own historical context and address different parts of the policy continuum. There is no express authority for public bodies to use dialogue and deliberation processes in the policy process. However, neither do laws prohibit these processes. Much like the legal framework for dispute resolution in the early years of the field, the silence creates ambiguity.

For example, through keypad voting, wireless computer banks, and large projection screens, the AmericaSpeaks 21st Century Town Meeting allows a demographically representative sample of thousands of people to deliberate simultaneously on a policy issue. Decision-makers have used this model to understand the public’s views on issues such as how to redevelop Ground Zero, how to allocate the budget, or how to reform Social Security. However, anecdotal evidence suggests that some federal agencies may be reluctant to use this process for rulemaking, because of perceived difficulty in capturing the simultaneous comments of thousands of people in the rulemaking record under the Administrative Procedure Act. Nevertheless, many public bodies have incorporated these new processes for civil discourse into their decision-making, particularly at the local government level.

Moreover, there are promising recent developments. President Barack Obama, on his first full day in office, committed to create “an unprecedented level of openness in Government” and “a system of transparency, public participation, and collaboration” to strengthen democracy, ensure the public trust, and “promote efficiency and effectiveness in Government.”[9]  Under the memorandum, federal agencies adopted plans to engage the public and stakeholders from the public, private, and nonprofit sectors in policy. This initiative recognizes that knowledge is widespread in society and that a strong democracy needs many voices and values. While the open government rhetoric has exceeded the results, it is a change in the way agencies think about the public role in policy. It has served as a model for the states; has implemented an open government web site.

Last year, the Uniform Law Commission adopted the Revised Model State Administrative Procedure Act. Section 303 authorizes agencies to gather information and solicit comments from the public after a notice of rulemaking.[10]  Section 303 also provides that it “does not prohibit an agency from obtaining information and opinions from members of the public on the subject of a proposed rule by any other method or procedure.” Although the notes to this section refer to informal consultation related to negotiated rulemaking, this language may also open the door to some innovation in the methods or procedures for public participation in rulemaking. Similarly, Section 306 on Public Participation appears to permit innovation in the process for consulting informally with the public; it expressly provides that “nothing in this section prohibits an agency from discussing with any person at any time the subject of a proposed rule.”[11] The revisions were a good start on expanding information-sharing, between agencies and the public, but they fall short of explicitly authorizing collaborative decision-making.

The legal framework for civil public discourse is stronger at the local government level, where municipalities have adopted charter provisions and ordinances to provide for new forms of public engagement, like neighborhood councils in Los Angeles that provide a forum for deliberation among residents and agencies about area service needs and priorities. In many states, local government elections are non-partisan. However, even nonpartisan public bodies need help structuring conversations with citizens about important policy choices.
There is a growing body of knowledge and resources on this local use of deliberation.[12] 

One way to encourage more civil and deliberative public discourse would be expressly to authorize government bodies to use processes other than the standard three-minutes-at-the-microphone public hearing. One possibility is to pass a collaborative governance act, similar in structure to the federal Administrative Dispute Resolution Act that authorized federal agencies to use negotiation, mediation, and arbitration. Such a statute could authorize agencies to innovate with models for dialogue and deliberation and build internal agency capacity for hosting more civil and deliberative discourse on public policy.

This primer is just a brief introduction to the rich array of processes for addressing conflict over policy through civil and deliberative discussions, to the role of lawyers, and to the legal issues that may arise as lawyers counsel clients about their use. The Section for Dispute Resolution will offer a variety of informative sessions at its annual conference in , April 18-21, 2012. This is a new arena of practice for dispute resolvers. As lawyers, we can help clients working upstream in public policy to find more collaborative and problem-solving ways to address critical issues.

Bingham Figure 1

[1] This discussion is adapted from Lisa Blomgren Bingham, Collaborative Governance: Emerging Practices and the Incomplete Legal Framework for Citizen and Stakeholder Voice, 2009  J. Disp. Resol. 269 (2009).

[2] For a selection of resources recommended by dialogue and deliberation practitioners for the ABA Section of Dispute Resolution’s Mediation Week (October 2011), see www.americanbar.org/dispute .

[3] Archon Fung, Varieties of Participation in Complex Governance, 66 Pub.

Admin. Rev. 75 (2006).

[4] Lynne Carson & Janette Hartz-Karp, Adapting and Combining Deliberative Designs, in The Deliberative Democracy Handbook: Strategies for Effective Civic Engagement in the Twenty-First Century 120-138 (John Gastil & Peter Levine eds., 2005).

[5] James S. Fishkin, When the People Speak: Deliberative Democracy and Public Consultation (2009); see also Gastil & Levine, supra note 4.

[6] Mark Imperial and Derek Kauneckis, Moving from Conflict to Collaboration: Watershed Governance in , 43 Nat. Res. J. 1009 (2010).

[7] See www.ncdd.org.

[8] This discussion is adapted from Lisa Blomgren Bingham, The Next Generation of Administrative Law: Building the Legal Infrastructure for Collaborative Governance, 10 Wis. L. Rev. 297 (2010).

[9] Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009).

[10] Admin. Procedure Act (2010), http://www.nccusl.org/Act.aspx?title=State%20Administrative%20Procedure%20Act,%20Revised%20Model (last accessed Nov. 14, 2011).

[11] at § 306, which provides “(b) An agency may consider any other information it receives concerning a proposed rule during the rulemaking. Any information considered by the agency must be incorporated into the record under Section 302(b)(3). The information need not be submitted in an electronic or written format. Nothing in this section prohibits an agency from discussing with any person at any time the subject of a proposed rule.”

[12] For more detail, see the publications of the Institute for Local Government, available at www.cal-ilg.org  (last accessed November 6, 2011).

 

Lisa Blomgren Bingham is Keller-Runden Professor of Public Service at the University School of Public and Environmental Affairs and Visiting Professor of Law at the University of Nevada Las Vegas Boyd School of Law. Her research interests are dispute system design and collaborative governance. She is currently working on a book with Janet K. Martinez and Stephanie Smith entitled Dispute System Design: Preventing, Managing, and Resolving Conflict (Stanford University Press, Forthcoming). She can be reached at lbingham@indiana.edu  or www.indiana.edu/~spea/faculty/bingham-lisablomgren.shtml.

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