Alternative Regulat ory Practices & Dispute Resolution

1. Alternative Regulatory Practices & Dispute Resolution Rohan Samarajiva, LIRNE.NET & Delft University of Technology SAFIR Workshop on Legal Aspects of Regulation in South Asia, Dhaka, August 3-4, 2002

2. Alternative regulatory instruments • Rule-making proceedings • Workshops • Advisory committees • Public hearings • Negotiated rulemaking • Dispute resolution • Mediation • Arbitration

3. Alternative rulemaking • Workshops • Invite stakeholders to participate in workshops that will generate the information that will shape the formal process • Negotiated agenda that reflects stakeholder interests • Opens up the information-subsidy mechanism hitherto available primarily to the incumbent • Appropriate for cutting-edge issues • Can be combined with training • Allows for participation by local & foreign experts, paid for by NRA or by stakeholders

4. Alternative rulemaking • Advisory committees • Good for subjects that require continuing attention, e.g., • Spectrum policy in telecom • Rights-of-way policy • Consumer protection • Problems • Staff capture • Keep separate from regulatory staff, if possible

5. Alternative rulemaking • Public hearings • Structured environment for stakeholder consultation and education • Possible to have looser procedures for public hearings in some countries • Possible to be proactive • use of consultants • consultation documents • Relation between public hearing committee & NRA?

6. Alternative rulemaking • Negotiated rulemaking • Parties jointly engaging with issues, rather than separately with NRA • Works only when number of parties is small • NRA to identify, invite to face-to-face negotiations • Parties with remote interest, limited to written comments

7. Conditions for negotiated rulemaking • No party can win • Limited number of parties • Issues have crystallized • If no agreement, others decide • Potential for win-win • No fundamental values at stake • Multiple issues • One party does not control information

8. Conditions for negotiated rulemaking • Ground rules established at start • Prevent adoption of adversarial roles • Periodic reminder: objective is not victory, but solution • Confidentiality rules • Harvard principles

9. Harvard principles • Focus on interests, not initial positions • Seek options that allow mutual gain • Define objective criteria • Fisher & Ury (1981) Getting to yes

10. Check list for alternative rulemaking • Rational choice of procedure • Issue initial notice • Ensure all parties represented • Generate necessary data • Obtain an advisory report • NRA should be ultimate decider • Reasoned decision by NRA • Not applicable to all countries • Prepared to sustain alternative procedures in US

11. Dispute resolution: Arbitration • Third-party neutral • Appointed by NRA • If collective entity, may be appointed by parties • Can impose a solution • Parties bound by decision, generally

12. Conventional arbitrator • Examines facts laid before her • Listens to disputants present their cases • Offers a solution • Generally binding • In some cases, may be modified • Similar to “trial”

13. Conventional arbitration vs. trials • Outside conventional legal system and its delays • Toll road that allows faster movement than congested highway • Arbitrator selection different • May have expertise • Procedures may be less rigid • Appeals may be precluded

14. Unconventional arbitration • Final-offer or “baseball” arbitration • Variation is to remove power of arbitrator to fashion a remedy • Has to pick one of the solutions proposed by the two parties • Corrects polarization incentives of conventional arbitration

15. Assessment of arbitration • Fast-track trial, with some expertise thrown in • Adversarial, not cooperative • Neither variety addresses the cognitive and emotional dimensions of the conflict • They may get addressed if arbitrator is skilful • Not optimal for long-term cooperation

16. Dispute resolution: Mediation • Assistance to resolve conflicts • Facilitation (guide consensus building process) • Training to prevent escalation of conflict • Coaching (same, but while negotiations are on) • Relevant forms of mediation • Fact finding (e.g., Mitchell Report)

17. Mediation relevant to regulation • Forms of “binding” mediation • Advisory mediation • Interest-based arbitration • Mediation-arbitration • Same third-party neutral • Different arbitrator • Expert decision-makers on call

18. Features of “binding” mediation • Less trial-like than arbitration • Linked to other mechanisms to yield results • while keeping door open for voluntary resolution • Third-party neutral’s role is more fluid

19. Mediation in regulation • For NRA to be the effective third-party neutral, legitimacy needed • Perception that it’s fair • Independence • Special problems with incumbent • If NRA has quasi-judicial powers, important to insulate mediation function

20. Mediation in regulation • Ensure mediation does not weaken formal decision-making powers • Conventional mediation gives ownership of conflict to parties • No guarantee of solution • NRA cannot accept impasse

21. Mediation in regulation • NRA versus outsourcing? • Resources • Perceptions • Skilled mediation v. generic mediation

22. Mediation in regulation • Need for training • Communication skills that are culture specific • Listening • Reading body language • Not ascribing motives • Not accusing • “I” messages v. “you” messages • Importance of framing & reframing

23. Assessment of mediation • Regulation done right is what governance should be • Mediation-informed interactions are how life should be

24. Additional resources • Fisher, R. & Ury, W. (1981) Getting to yes (Boston: Houghton Mifflin) • Mayer, B. (2000). The dynamics of conflict resolution: A practitioner’s guide (San Francisco: Jossey-Bass) • NRRI reports 87-12; 96-17; 96-24 • International Forum on Dispute Resolution in Telecommunications (IFDRT): Richard Hill & John Watkinson (eds.), “Telecommunications disputes: Specificities, problems, and solutions” (White Paper), (17 June 1999). At: http://www.icc-uk.com/rhill.html