Business people negotiating a private deal are trained to listen to discover their counter-party’s interests, and to devise beneficial options that accommodate them. Yet listening is something one seldom observes in public legislative debate. Adjusting on the basis of what one hears, practically never.
Why is that? And might the ADR community have something to contribute to encourage creative negotiation of matters of public interest?
At the 13th Annual Spring Conference of the ABA Section of Dispute Resolution, a panel led by Robert D. Benjamin challenged lawyers and other professional problem-solvers to recognize the risks that poor negotiation processes pose to our society, and to assume some responsibility for contributing to the improvement of public discourse.
Some of these problems are endemic, we were told. Christine Scanlan, a former Colorado State Representative and now Director of Legislative Affairs to Colorado Governor John Hickenlooper, opined that “good process” is not a broadly recognized value in legislative matters — “it’s called sausage for a reason.” Negotiation is not always perceived by constituents as being in their interest, and for legislators time and focus are at a premium. A creative participant in the legislative process must “learn to tolerate messiness.”
John Ferrugia, a guest panelist who is a veteran legislative reporter, noted an important distinction: Negotiators have an incentive to reach an agreement, while legislators have an incentive to retain their seats. Negotiators rely on their counterparty to seek shared interests, while legislators rely on their constituencies to get money to be re-elected. Can a legislator afford to break with the party on a budget issue? Is centrism viable when the funders are on the extremes? Is the process of politics rational?
Richard Reuben introduced a Resolution that was enacted by the Council of the Section, for consideration by the ABA House of Delegate at the ABA Annual Meeting in August. He and others consider it a timely and forceful contribution to solving the problem of dysfunctional public negotiation. The Resolution provides:
RESOLVED, that the American Bar Association reaffirms the principle of civility as a foundation for democracy and the rule of law. When dealing with the public as well as with one another, lawyers should set a high standard for civil discourse as an example for others in resolving differences constructively and without disparagement of others.
FURTHER RESOLVED, that the American Bar Association urges all lawyers, ABA member entities and other bar associations to take meaningful steps to enhance the constructive role of lawyers in promoting a more civil and deliberative public discourse.
FURTHER RESOLVED, that the American Bar Association urges all government officials and employees, political parties, the media, advocacy organizations, and candidates for political office and their supporters, to strive toward a more civil public discourse in the conduct of political activities and in the administration of the affairs of government.
FURTHER RESOLVED, that the American Bar Association supports federal, state, territorial and local governmental policies, practices, and procedures that promote civility and civil political discourse and that are consistent with the First Amendment, and other federal and state constitutional requirements.
Peter Adler of the Keystone Center urged us to recognize the true nature of the problem: These are discussions of “public interest,” not private “interests.” It is the exercise of collective power. These talks are reported on the TV. It is not two parents negotiating child custody. Waiting for a moment of consensus in a legislature is like waiting for the exciting bit at a baseball game. It will come, but it will be unexpected and without any impact on the way the game itself is played. That’s why “Town Hall meetings are not a good forum to solve problems.” There is a role for the creative leader in public discourse, just as there is a role for the creative facilitator in the divorce discussion. But importing terms like “interest,” “collaboration” and ”facilitation” from the private sphere to the public one is inartful and displays a lack of sympathy with the process of public policymaking.
My well-educated and articulate daughter was complaining the other day of a friend who equated “social safety nets” with a 4.0 student’s giving a gradepoint to a 2.0 student in an exercise in “wealth redistribution.” She related in lurid and passionate detail how off-the-mark the analogy was and how social policy is different from a student’s GPA. She couldn’t understand how someone could think that way. I told her that, any more, I involve myself in political discussions only if I think I can learn something from them, and have completely abandoned the goal of persuading the person I’m talking to.
Is that healthy? Or is it an abdication of my role as a citizen in a democratic republic?