Multi-Party Public Policy Mediation:
A Separate Breed
By Lawrence Susskind
Mediation is often thought of in terms of the resolution of disputes between two private parties, maybe three. However, a mediator can help in a great many situations involving large numbers of parties, and great issues of public importance, particularly before formal legal action is taken.
For example, the mediation of multi-party, multi-issue disputes at the local level, such as battles over the design and location of public facilities, the setting of policy priorities (like how to spend public funds), and the specification of health and safety standards (like acceptable levels of risk) can be particularly effective. Professors Lela Love and Cheryl McDonald illustrate the point well in their article on mediations involving the day-laborer problems in New York and California. (See page xxx.)
Multi-stakeholder dialogues at the state, national, and even the international levels can also be mediated to great advantage -- producing fairer, more efficient, more stable, and wiser outcomes. Chris Carlson article in this issue, for example, describes how a facilitated mediation of Ohio's redesign of its Medicare reimbursement system is saving that state more than $50 million a year while providing better services. (See page xx).
The requirements for successful mediation of multi-party, multi-issue disputes (particularly in the public policy arena) are somewhat different from the usual prerequisites for successful mediation of private two-party disputes (particularly in court-annexed contexts). These differences speak to an important question that has been variously posed in the pages of Dispute Resolution Magazine: "What is real mediation, and who should decide?"
In this article, I will examine how multi-party dispute resolution in the public sector differs from other types of mediation. I will also reflect on what we have learned from several decades of practice in the mediation of public disputes. Finally, I will review the mistakes that public dispute mediators sometimes make, and the implications that these errors have for the regulation of the practice of mediation in the United States.
A Different World
Lawyers who have handled employment, divorce, property, and even personal injury cases, take a number of things for granted.
It is usually clear, for instance, who the stakeholders are and who will represent each one. It is also clear what the rules of engagement will be. Requirements that information be shared are accepted by all sides, for example.
Most importantly, the external basis for deciding "who wins and who loses" is not up for grabs: the rule of law applies. When such cases are mediated prior to adjudication, both sides are likewise bound by a set of rules and procedures. They will compare possible settlement offers to the "likely outcome of litigation." While the parties may differ in their estimates of what will happen if they go to court, they are basically working within the same framework as they think through their "next best alternative" in the absence of a voluntary settlement.
Things are different in the world of public disputes. There are almost always a great many parties, and not all of them are obvious. Indeed, it is hard to know exactly who the stakeholders are and who can speak for them. In a Superfund clean-up, for example, there may be hundreds of potentially responsible parties many of whom have no idea that they are involved such as abutters, environmental interest groups from outside the immediate area, business interests, public agencies with relevant jurisdiction, to name just a few.
Bringing these groups together to explore, for example, a possible environmental clean-up plan is a laborious task. Some groups will refuse to participate. Others may not get involved unless all parties have committed to come to the table
Ground rules have to be negotiated anew in each such situation. Some groups, for example, may have serious doubts that some who claim to speak for particular constituencies (such as "future generations"!) have the capacity to do so.
More significantly, the participants in a public dispute resolution process are very likely to have diametrically opposed views of what will happen if ad hoc negotiations are not successful. Some may think that they can get their way by relying on their political contacts. Others may think that the usual administrative procedures will go their way. Still others may have a campaign to shape public opinion mind. There are no relevant rules of standing. The rule of law does not apply, at least insofar as which issues will be the focus of negotiation and which will be out of bounds.
In public dispute resolution, the agenda of issues is not limited to what can be litigated or what the court would find relevant. Any and all issues can be linked in the world of politics and public affairs. Many policy issues are quite complex, with far-reaching technical or scientific implications. Yet, there are no requirements that information be shared. There are no guarantees that some, or even most, of the parties will have the expertise they need to wrestle with the technical questions that will arise. In public dispute resolution, the product of a multi-party dialogue even one that extends over several years is almost always an informal, non-binding agreement. The power to actually decide and set policy usually rests in the hands of a government body. Elected and appointed decision makers, therefore, may tolerate a mediation effort they may even participate in it but in the end they retain the right to make the final decisions.
Indeed, a promise by an elected official to "live with the results of an informal consensus building process" could be criticized as a "dereliction of duty" or as "delegating away" statutory responsibility. Yet, unless political decision makers promise to abide by the results of a mediation, why should the key stakeholders bother to get involved? In almost every instance, the results of an informal public dispute resolution effort must be transformed into a binding format, such as a contract, a piece of legislation or a set of conditions added to a permit. Explaining to angry citizens why and how this will happen can be difficult.
The mediator in a public dispute resolution effort is often expected to convince the parties to come to the table, to help them structure a "work program" and ground rules to guide their interactions, and to broker agreement when it becomes too difficult to bring large numbers of (grandstanding) parties together in a public forum.
Similarly, the mediator is usually the one who drafts the agreement, presents it to the public, monitors its implementation, and helps the parties reconvene if someone suspects someone else of non-compliance.
Indeed, the range of responsibilities assigned to mediators in multi-party (public) disputes goes well beyond what is expected of mediators in private two-party disputes a point well demonstrated by Eric Van Loon in his article on an Indian gaming mediation (see page xxx).
Given the difficulties listed above, it is somewhat surprising how many complex public disputes have, in fact, been mediated successfully. There are a great many case studies documenting successful practice and several large scale statistical evaluations, all of which point to six or seven key findings with regard to the practice of public dispute resolution.
Substantive expertise. Mediators of public policy disputes need to know something about the substantive realm in which they are working, and be extremely sensitive to the larger context of their work. In the past, there was some debate about whether or not public dispute mediators needed to have a background in public management, planning or a related discipline. Now it is clear that the special demands of multi-party public dispute resolution require a mediator with substantial public sector experience.
Environmental disputes, in particular, are best handled by mediators familiar with the technical and scientific issues likely to arise. Public dispute mediators are almost always called upon to establish not only their own credibility, but the legitimacy of the mediation process itself.
Team Approach. Public dispute mediation is best handled by teams of mediators. There is so much work to be done "away from the table," particularly before stakeholders are convinced to participate in a consensus building effort, that a team approach is required.
Also, with 20-50 parties "at the table" it is not possible for one person to pay close attention to all the non-verbal cues being given at all times, and to attend to summarizing key points of agreement. Members of the mediation team need to fan out between mediation sessions in order to stay in close contact with all the parties.
Early conflict assessment. An early, preferably written conflict assessment almost always needs to be prepared before a public dispute resolution effort can begin.
Face-to-face confidential interviews with increasingly larger circles of prospective parties, can help a mediation team to determine who should be at the table, what the work program should be, what sort of joint fact-finding will be required and which ground rules will work best. This pre-negotiation work is one of the most important special features of multi-party (public) dispute resolution.
Eclectic Problem-Solving. Mediators in multi-party disputes must be highly eclectic in their approach to problem-solving. No single method of consensus building is going to work in the face of the enormous complexity and diversity of interests, ability levels and styles typical of public dispute mediation. Indeed, process design itself needs to be a joint activity ("owned by the parties") for the final results to be acceptable.
Transformed Outcomes. Informally negotiated outcomes need to be transformed into formal mechanisms that will bind the parties in credible ways.
Thus, even when a group reaches a negotiated agreement, its work is not completed. Informal understandings may need to be re-negotiated with elected and appointed officials who, perhaps, "blessed" the mediation process in a general way at the outset, but reserved the right to make final decisions at a later time. The need to formulate ingenious ways of holding parties to their commitments may require the mediator to "sell" the negotiated agreement to parties who were not actually involved in the process. Implementation Evolves. The implementation of agreements in a public dispute resolution process must be monitored and (often) renegotiated.
One of the ways in which multi-issue, multi-party agreements are reached is through the use of contingent commitments. When there is a great deal of uncertainty about what is likely to happen, agreements may take the form of a schedule of commitments only some of which will be triggered by specific findings or events in the future. Someone has to monitor implementation to be sure that all the appropriate promises are kept. New information may necessitate reassembling the parties for further discussion.
It is sometimes possible to move ahead with the mediation of a complex public dispute even if all the key parties are not on board. It may be desirable to convene the parties that want to meet and leave open whether the process will conclude. Sometimes a public dispute resolution effort might stop for a period while one or more parties waits for information (or the build up of public pressure). The most important insight to date is that there is no predictable pattern that successful mediation must follow.
There are several things that often go wrong when attempts are made to bring made parties together to tackle a complex (public policy) issue.
The first has to do with the impatience of many convening authorities. It may take several months to complete a conflict assessment and decide whether or not a full-fledged mediation should go forward. This can run counter to the interests of a public agency or a convening authority that wants to move quickly. More often than not in public dispute resolution it is necessary "to go slow to go fast." That is, unless all the pre-negotiation logistics are handled with great care (to give the overall effort the necessary credibility and legitimacy in the eyes of the stakeholders), the entire process is likely to falter before it is completed.
Second, a key party particularly a public agency with relevant jurisdiction may resist efforts to convene a consensus building effort. It is not uncommon, for example, for public officials with little or no first-hand mediation experience to mistake mediation for arbitration. They worry that they are being asked to give up their formal decision-making authority.
Mediators who gloss over this misconception will find themselves trapped. It is better to walk away from a possible mediation than to get involved when the parties are confused about what the process entails, or when a key party does not accept the basic premise that mediation is voluntary, and remains so right up until the final agreement is signed.
Inexperienced mediators also sometimes fail to give sufficient attention to maintaining communication between stakeholder representatives and their constituents. When this happens, the negotiators get "out ahead" of the people they are supposed to represent. A small "community" develops around the table, but the negotiators lose touch with the people who really decide whether an agreement will go forward. It is often necessary to organize public educational processes and work closely with the press in an effort to be sure that all the stakeholders know what their representatives are doing. Public dispute mediation can only be effective if the stakeholder representatives stay in close touch with their constituents.
Mediation style can also be problematic. A passive style in a situation that requires a high level of mediator activism, for example, will result in failure. Too many mediators hold back, in an effort to be sure that the participants "own" the process. They are unwilling to propose specific alternative or "packages" that go beyond what the parties themselves are able to invent.
On the other hand, an activist mediation style can overwhelm or put off a group of participants who expect the mediator to play a low key role. Mediators who fail to match their approach to the demands of the situation are often the cause of failed dispute resolution efforts.
Finally, the parties sometimes underestimate or resent the costs associated with professional mediation. In a public dispute resolution context, it can be hard to find the resources to cover the costs associated with a year-long facilitated process. While the parties would presumably pay the bills associated with litigation, they rebel when it becomes clear that a mediation team working 15-20 hours a week for a year or more may cost (all) the parties $30,000 - $40,000.
In some instances, the parties may be unable to find a way to pay for neutral assistance, unable to accept underwriting from one or two parties for fear that unequal payments from all participants might undermine the mediator's neutrality. Sometimes mediators are called upon to write grant proposals or take other steps to generate resources to cover their fees.
Implications for Regulation
Given what we have seen, it seems highly unlikely that the standards and accreditation procedures relevant to the regulation of lawyers mediating private disputes that have already entered the legal system would apply to public dispute mediators handling multi-party public policy disputes.
Which is real mediation? Both, I would suspect. Who should set standards regarding the role played by public dispute mediators? Certainly the parties ought to have the primary control. Indeed, an informed consuming public is the best possible means of setting standards for professional behavior. But public agencies may feel compelled to set standards governing public dispute resolution, and some already have.
These standards tend to be absolutely minimal. On the other hand, the Public/Environmental Sector of the Society for Professionals in Dispute Resolution (SPIDR) has drafted its own, much more ambitious, description of "best practices" that goes far beyond the regulations drafted by any state. These reflect the considered judgment of some of the most experienced practitioners in the country.
The demands, successes and failures of public dispute mediation help to deepen our understanding of the contributions that multi-party dispute resolution can make to our growing understanding of the larger implications of the ADR movement. We need to keep all these dimensions in mind as we think about the desirability of moving toward more explicit standards to govern the professional practice of mediation in the United States.
Lawrence Susskind is the Ford Professor of Urban and Environmental Planning at the Massachusetts Institute of Technology, in Cambridge, Mass., and president of the Consensus Building Institute. He can be reached at susskind@MIT.EDU.