Late last year I ended my Mediation and Social Justice post with an example of a steering committee facilitation in Colorado Springs that’s integrating diverse community voices into decision-making processes regarding transportation issues. This facilitation falls into a category of mediation/ADR referred to as “public policy mediation.” Given the testy headlines we’ve all been reading since last year’s mid-term elections, and given that we get to inaugurate their effects after ringing in the new year, I wanted to elaborate on this category, and further discuss how mediation can be integrated into the policy making process.
“…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 government, representative stakeholders, and the general public.”
Public policy mediation creates the opportunity to integrate many perspectives and areas of expertise, and facilitates a process through which consensus can be established where at first glance it looks untenable. This process is currently used by a wide range of federal, state, and local agencies to produce actionable policies and regulations. One particular variation of public policy mediation is negotiated rulemaking whereby all stakeholders participate in the creation and drafting of regulations. This entails taking initial time, as a group, to address the processes and expectations of that particular mediation, tailored to the issue at hand. It might include, for example, agreeing on a strategy for working as a large group or in smaller breakout groups, setting deadlines for various goals, deciding upon mechanisms to deal with time constraints or deadlocks, and defining an outcome that must be completed to conclude the mediation (such as a final document or set of recommendations).
A strategy for public policy mediation must be carefully assembled to deal with the complexity of this type of facilitation. A useful outline of the process of public policy mediation can be found at this link, but here’s a brief overview.
Convening, a preliminary mediation process, is the first step in any complicated public policy mediation and by definition these cases are always complex. In convening the primary goal is define the scope of the process. The convenor, whether it be the public agency or an outside neutral, needs to identify and engage representatives of parties that are affected by the issue at hand, and have a stake in the policy’s implications. It’s important to remember that whoever participates in this process has a great deal of power. It is incredibly important that this identification process is done equitably, and without the interference of special interest groups that may have access to more social or financial capital. After the appropriate parties have been identified and drawn into the process, the central questions that the group will address must be defined, and an outside party should be chosen to facilitate (such as CDR Associates in our example of Colorado Springs).
Then a series of initial meetings should begin, to identify the focus of the mediation, set ground rules, and then, importantly, to educate participants on negotiation processes. The facilitator should help the group define phases and time limits for their deliberation process. This may include combinations of caucus sessions, fact-finding visits, small group work, document drafting sessions, and final negotiations.
While mediation will not always be an applicable strategy for contested policymaking, it brings numerous valuable benefits to the process. Approaching a policy issue through a mediation lens assures that the deliberative process is focused on the voices of stakeholders, rather than the posturing that often takes place among governing representatives.
Sometimes governing agencies will resist suggestions for policy mediations as they sound cumbersome and require a significant amount of time and investment. However, those same institutions sometimes end up coming to policy mediation as a last resort, when other more conflict-oriented strategies for policymaking have failed and policy implementation is becoming a critical issue. This is not an ideal way to approach the process of policy mediation – it is a complex process, and is unlikely to maintain processual integrity if participants are seeking last minute short cuts. While initially the necessary efforts for policy mediation may seem intimidating, investing to create sound, sustainable policy can, in the end, save time, energy, and valuable public resources.
Aside from resistance from governing institutions, public policy mediation faces a serious challenge in the current political culture in the United States. It’s not hard to discern from the recent exchanges over midterm elections that a combative aura is the reigning norm for policymaking, certainly on a federal level, though often at the state and even local level, too. We hear day in and day out about the harsh and dualistic partisan divisions that split the capitol, and even our communities. Many of these issues are related broadly to the current structures of the two-party political system here in the United States, and even the most meticulous policy mediations are not going to be able to solve these structural issues. In fact, certain kinds of political tension are a key part of the policymaking process under this model. Still, policy mediation is an excellent tool for moving important policy initiatives forward, and it may provide the opportunity for coalition building that otherwise seems impossible. Perhaps if citizens and policymakers invest more energy and resources into these positive processes of equitable deliberation early on in the policymaking process, we can work towards a new political culture from the ground up.
Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. She provides mediation, group facilitation and training to diverse, national clients. Get in touch with her via email, LinkedIn, Twitter, or give her a call at 301-588-5390.