It seems I have reached the point in my career when those who would be historians ask for my recollections, assessment of the state of the art and vision of the future. Here is my polite reply.
When I graduated from law school in the early 1960’s I just wanted to be a labor lawyer. My early years thereafter were spent at Federal and State agencies, the National Labor Relations Board Regional Office in Detroit and the Wisconsin Employment Relations Commission. I learned that I would be uncomfortable swearing my allegiance to organized labor or management and was trained to mediate and arbitrate. I thought that suited me. It was good work in the field I wanted to be in.
Mediation and arbitration were conventional processes in labor relations. There was nothing reformist about it, but I thought I was doing well by doing good. There was lots of experimenting with dispute resolution in the public sector and, with hindsight; I understand that participating in that prepared me for what came next.
I left government for private practice intending to continue as a labor mediator and arbitrator and to help to found a new “think tank,” The Wisconsin Center for Public Policy, where my focus was to be innovations in labor relations conflict resolution. Everything changed for me when former government colleagues, still in their public positions, asked me to mediate in environmental conflicts. I received a generous grant from the Ford Foundation to support that work, met a new set of colleagues who were also Ford grantees, and had some success as an environmental mediator.
I did not refocus from labor relations to environmental affairs or see myself as part of a movement working for the greater good. What intrigued me was the idea that mediation is applicable to a multitude of disputes and that my new friends and I were exploring that frontier. It wasn’t idealism on my part, just the possibility of continuing to do well by doing good on a modest scale and being in on the invention.
It was the late 1970’s and early 1980’s and things were heating up. Mediation in family disputes was developing. Neighborhood justice centers and court attached mediation capacities were being initiated. Environmental mediation began to include negotiated rulemaking and morphing into public policy mediation. The potential for substantial changes to the justice system and litigation, as well as to how public policy would be determined, was obvious. Forces gathered in favor of this potential as prestigious Courts and scholars gave it their support and imprimatur. It spread beyond any 60’s counter culture aspect that might have inhibited it early on and found its way into bar associations and corporate general counsel offices.
That didn’t disappoint me as it did others who had loftier goals, nor does it to this day. I’m glad that litigators turn regularly to mediation, although I’m not sure that the quality of the mediation is what it might be. It seems like a good thing that divorcing couples and others in family conflicts may have the benefit of processes that should be more sensitive to their needs than courts might be. That law schools are training for settlement seems wise since that’s how most cases are resolved. Recently, I’ve enjoyed teaching planning and environmental studies students and found their enthusiasm for dispute resolution processes really promising for the future of government and those it serves.
The downside for me lies in the niche where I think I have done my most interesting work, public policy mediation. Two factors that dominate that work are that government entities are almost inevitably essential parties, and that both agreement-seeking and non-agreement seeking processes are appropriate. ( I think of my agreement-seeking work as mediation, but that’s just me.)
Public policy by definition is specified by the government. Other stakeholders can provide advice, but only government can enact. The promise of agreement-seeking processes is that the advice will be powerful, because it is sound and consensus-based. The appeal of such processes, for me, is that it places the non-government stakeholders in a position to provide such advice. That amounts to real empowerment for those stakeholders who otherwise might be limited to less effective participation. Call me a late-blooming idealist, but I like the idea of distributing power; or should I say redistributing power, because some non-government stakeholders are already powerful.
On the other hand, I fully understand, having twice been a government agency head in my State, that redistributing power does not automatically redistribute responsibility. Responsibility is an aspect of authority, and as I said, ultimately only the government has the authority to make public policy. So it is natural that government officials when presented with a choice between agreement-seeking and non-agreement processes such as advisory dialogues and public involvement strategies will opt for the latter. They are going to take the gaff when a policy fails or is criticized. They want control commensurate with the risk of such consequences.
Moreover, all of these processes are legitimate strategies. There are cases for which each one of them is the best choice. A thorough and wise assessment in advance should suggest the best strategy for the matter at hand. The question is whether such an assessment will occur, or will the assessment favor the less powerful non-agreement seeking processes because that is preferred by the understandably risk adverse government officials. My concern is that the business interests of the providers of mediation and facilitation services (I refer to my counterparts in the non-agreement seeking processes as facilitators.) will bias the assessment, if there is one; and that strong opportunities for power- distributing agreement-seeking processes will be lost.
This is most likely to be the case on the Federal level, I think, for a number of reasons. A notoriously polarized political climate with little interest in consensus is the most obvious.
It is also true that the amount of money to be made at that level is the greatest and, therefore, the pressure to please the government “client” is the greatest. Moreover, the use of procurement contractors by Federal agencies compounds the problem because those contractors, who distribute the cases to mediators and facilitators, have nothing but an ordinary business-customer relationship with the government agencies.
I fear that this combination of governmental risk aversion and the business interests of providers will compromise such best-practices as a thorough assessment and stakeholder-determined procedural ground rules, thereby risking the success of these processes, and as a consequence, their reputation. A problematic reputation undermines interest in agreement-seeking processes and rationalizes their rejection.
The State level is obviously a mixed bag and not subject to brief generalization. In any case, the “light at the end of the tunnel” is at the local government level, in my view.
At the local government level, cities, counties, school districts, etc., government officials face diminishing resources and growing service demands. They cannot hide in distant capitals, they face their constituents in their daily lives; and often they are not driven by the politics of reelection and personal ambition.
Here are two examples of where mediated public policy negotiations should be a valuable strategy for local government. Both of these scenarios are more than familiar in thousands of cities and counties.
A project hoped to provide needed strength to a city’s economy is resisted by members of the community who are concerned about its impact on natural resources adjacent to the site. Other concerns are expressed by preservation advocates who appreciate the historic nature of the neighborhood. Commercial and labor interests support the project as a job creator and an attractive feature for the aging district where it would be built that would draw customers to surrounding businesses. The City itself is undecided about tax relief and design measures requested by the developers. Assembling these interests to negotiate the issues among them seems to be a promising alternative to politics-as-usual and litigation.
Local governments needing to provide essential public safety services are advised by consultants, who have considered both the economic and service challenges, that a viable strategy for maintaining and even enhancing protection lies in a spectrum of arrangements in which neighboring localities coordinate and share responsibilities. However, certain political concerns, stated and unexpressed, thwart efforts to implement this advice. The careers of ranking officials and the positions held by rank and file employees seem to be at risk, as does the status of some of the local government units. There is disagreement as to the formula for allocating costs and how planning will occur to address predicted service needs. Once again, why not consider mediated negotiations?
There is another example that applies to school districts. I happen to think that public education is in crisis and would be exceedingly well served by bringing educators, administrators, parents, non-parent taxpayers, and certain advocacy groups to policy negotiations. I have addressed that elsewhere in some detail and won’t otherwise burden this piece with that matter.
The transparency and public involvement opportunities that can be built into these processes, their cost and time efficiencies, the benefits of mediation’s “shuttle diplomacy” and process management capacities, not to mention the inputs of otherwise under-involved, but worthy, segments of the affected community, seem obvious. “Hidden agendas” can be surfaced and addressed diplomatically. The polarizing nature of litigation and ordinary politics can be substantially mitigated, if not entirely avoided. Creative, unanticipated outcomes are a real possibility. The advantages that mediation brings to negotiations compound the benefits of real dialogue among well-informed and savvy stakeholders.
What is missing to date, at least in most localities, is precedent and capacity. In my view, establishing such strategies as conventional methods and providing skilled mediation on an affordable basis are what needs to be done. All of these shortfalls ought to be addressed aggressively by the dispute resolution community. Local government officials and those who would influence them should hear more about the potential of these processes and especially about their successes. State statutes making clear that such negotiations are not prohibited might provide some encouragement to the risk averse. I also believe that a state supported mediation capacity such as some states provide for collective bargaining would overcome concerns about paying for mediation services. (Such a mediation agency would not be a costly addition to a state’s budget and the costs attendant to mediation must be compared to the costs of litigating and the costs of delays in cases such as the examples above.)
So that’s it, my very personal description of our earliest days, some aspects of our evolution and the future as I would prefer it, not how I predict it. I would only add that I don’t know the dimensions of the learning curve we are on and I prefer to believe that despairing over unachieved goals is premature. Optimism, patience and tenacity ought to come naturally to mediators.