DISPUTE RESOLUTION: Public Policy Mediation: Best Practices

Vol. 33 No. 3

By

Howard S. Bellman has mediated in nearly every category of dispute, ranging from the most ordinary civil and labor matters to international diplomacy.

Susan L. Podziba has been a public policy mediator for more than 25 years and is the author of Civic Fusion: Mediating Polarized Public Disputes (ABA, 2012).

Public policy mediation has the potential to enhance the practice of democratic governance and build sustainable agreements to address contentious policy issues. Over decades of practice in this area, we have seen citizen potential and expertise harnessed to contribute to a more sustainable world.

Public policy mediation is a method for securing actionable agreements among a broad range of interested parties who participate as negotiators, often on behalf of constituencies. It creates a forum for deliberative negotiations among the government, representative stakeholders, and the general public. The parties’ technical expertise, as well as their critical concerns and preferences, are woven into deliberations that increase mutual understanding and lead to otherwise untapped opportunities for consensus agreements. Policy mediation is used by a broad array of federal, state, and local governments to develop all manner of public documents that reflect complex decision making, including plans, policies, regulations, city charters, settlements, and memoranda of understanding.

Best practices. Best practices of policy mediation are grounded in the development of policy that values, and is improved by, stakeholder participation. With practical strategies for actually reaching sustainable agreements, best practices include conducting preliminary assessments prior to convening negotiations, developing and using participant-determined procedural ground rules, and maintaining mediator independence. Policy mediation conducted in this way can yield plans, regulations, policies, and even constitutions that reflect the wisdom and unique characteristics of those who will be governed under them.

Today, unfortunately, policy mediation is often a last resort, used only after government institutions and practices have failed to yield agreements. Government officials who turn to policy mediation may not be familiar with its complexities and so seek shortcuts that can inhibit success. As we all know too well, participants in a failed mediation are unlikely to try the process again. To help the field grow, mediators and participants must understand best practices.

Although the initiating agencies often resist it, the assessment phase, during which policy mediators interview relevant parties to understand and help organize the issues, learn the history of past efforts to address the situation, and identify the dynamics likely to affect negotiations, is critical. These early interviews provide opportunities for mediators to build confidence in the mediation process, identify relevant stakeholders and key issues, and develop relationships with negotiators.

The concept of mediator independence, another critical part of best practices in the public policy arena, is often confusing for government officials as well as for other constituent representatives. Government officials typically hire consultants to accommodate their needs and accomplish required tasks, so policy mediators often need to clarify that their benefit to the government is an ability to provide a forum for an exchange of ideas and for complex negotiations to solve a festering problem. In other words, mediators must remind clients that they serve the process and all its participants, not just one party. Similarly, participating stakeholders often presume that a mediator is biased in favor of the government, given that it usually covers the mediation costs. Mediators often must expend a great deal of effort to overcome such assumptions of both government officials and constituent representatives to build confidence in and credibility of the process.

Critical challenges. Critical challenges for building the field of public policy mediation stem from the current atmosphere of intense political polarization, government concerns about relinquishing authority to ad hoc groups of stakeholders and citizens, and, simply put, the “business” of mediation.

Currently, policy making within the federal government, as well as in many states and locales, is characterized by combativeness, not consensus building. Throughout these processes, we see “winner takes all” and “do it because we can” attitudes among stronger parties and “over my dead body” stances from those with less power.

For those situations where policy mediation is possible, government officials, particularly elected officials, often express the critical concern of maintaining their responsibilities to constituents and their authority under the law. In direct response to this concern, agreed-upon procedural ground rules usually describe the product of the negotiations to be a recommendation to the process-initiating government agency. Concurrently, the participating government officials agree to support implementation of the product if it reflects a consensus among the parties as defined under the ground rules. However, the government agency can decide not to implement the consensus recommendation because it has no legal obligation to do so—its authority and responsibility are not transferred to an ad hoc group of citizens. Of course, failure to use a broadly supported product, one that was developed with full government participation throughout the negotiations, could result in negative political implications, although the negotiators would not have recourse in the courts.

Finally, the business practices of policy mediation sometimes create impediments within our practice field. Policy mediation often is viewed as a last resort when the status quo must change and all usual efforts have failed to provide a sustainable shift. As such, the mediation community, with its conspicuous lack of political clout, often offers potential clients a service that carries some unappealing risk. On the other hand, that risk is shared when important constituents or high-level politicians advocate for policy mediation.

Benefits for the future. We remain optimistic that the inherent strengths and societal benefits of public policy mediation, when conducted according to best practices, will gain broader appreciation and application. We have seen its increased use at the local and state levels. Negotiated rule making is congressionally mandated under a number of laws, and policy mediation is being initiated more often for inter-governmental disputes within and among federal agencies. In addition, we have seen an expansion of its use internationally to resolve national and local policy disputes within countries as well as international disputes among nations.

Local government officials, leaders from cities, towns, counties, and school districts, cannot escape to capitols but rather must respond daily to their constituents’ direct demands for essential services such as fire and police protection, water and sewers, and K–12 education. Importantly, even with diminished resources, local leaders cannot find refuge in blaming others, support from remote donors, or ideological arguments. They must produce results. Many strategies for maintaining service levels now involve sharing among such local units. That, in turn, requires negotiations that are sensitive not only to the objectives of the governmental units but to the political “realities” that influence their officials. Mediators are working with local governments to elicit those interests and discreetly bring them into play.

The promise worth sustaining. As the United States grows more polarized, policy mediation offers an alternative approach that is likely to be embraced by the general public. Cynicism regarding traditional representative processes and the role of “special interests” in campaign financing seems to be an established feature of our political landscape. Greater participation and inclusive processes, professionally designed and mediated, are strategies for creating actionable and sustainable outcomes.

ABA SECTION OF DISPUTE RESOLUTION

This article is an abridged and edited version of one that originally appeared on page 22 of Dispute Resolution, Spring 2014 (20:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/dispute

PERIODICALS: Dispute Resolution magazine, published four times a year; Just Resolutions eNews, electronic newsletter published ten times a year.

CLE AND OTHER PROGRAMS: Annual spring conference, the world’s largest ADR conference; advanced mediation, arbitration, and negotiation training institutes; monthly teleconferences and webinars.

BOOKS AND OTHER RECENT PUBLICATIONS: Inside Out: How Conflict Professionals Can Use Self-Reflection to Help Their Clients; The Choreography of Resolution: Conflict, Movement, and Neuroscience; Sharing a Mediator’s Powers: Effective Advocacy in Settlement; Stories Mediators Tell; Early Neutral Evaluation.

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