Characteristics of Med- Arb processes

1. Characteristics of Med-Arb processes Thomas Webler Social and Environmental Research Institute Greenfield Massachusetts USA

2. Overview of techniques • Informal Problem Solving • Everyday talk • Negotiation • Voluntary, formal or informal • Mediation • voluntary, contract, court • Arbitration • Binding or non-binding • Impartial decision maker

3. Overview of techniques • Reg-Neg • Negotiation inspired by power of regulatory agency • Med-Arb • Consequences of failed mediation are obvious • Med-Admin • Consequences of failed mediation are that the State decides • the State is not impartial

4. Administrative Rulemaking • Legal authority is given power to regulate • Power is constrained by legislation • Usually developed around routine decision • Develops technical capacity to inform itself • Example: US EPA • Regulates air emissions • Regulates water emissions • Example: US Forest Service • Regulates uses of national forests

5. Benefits of Administrative Rulemaking • Agency represents a common interest (the public good), • It has expertise, which is politically neutral. • It has expertise and competence to handle tough, complex problems • It has the political will to enforce solutions.

6. Limitations of Administrative Rulemaking • Constrained by organizational structure • Goal-setting from top-down • Intended to perform limited routines (not innovate) • Reductionist approach to problem-solving • Can mean that problems are displaced not solved • Management is fragmented • Not learning-based institutions • Power to act without consent

7. Understanding conflicts over public policy • They involve stakeholders • “Interested and affected parties” • Self-identify • Objective determination • Whose values come into conflict because of proposed actions • Exist in hierarchies • Are activated by action alternatives • Amplifying effects of uncertainty • Speaks to the need for science and fact-finding

8. Solutions involve • Re-affirming shared values • Find existing shared values that supercede the debate (“We all want to protect nature.”) • Emphasize validity and importance of democratic institutions • Reaching common understandings • Finding agreement • A system for compensating losses • A system for monitoring performance and adapting decision making accordingly

9. Mediation can help • Mediation builds trust • Trust is the foundation for effective negotiation • With uncertain knowledge, trust becomes more important to reaching satisfaction

10. Furthermore • Mediation respects autonomy • It helps to build the bonds the link people together • Helps create civil society • Creates societal adaptive capacity

11. Furthermore • Mediation respects autonomy • It helps to build the bonds the link people together • Helps create civil society • Creates societal adaptive capacity Think of mediation as strengthening civil society.

12. PSE is the shape mediation takes in public policymaking • Public and Stakeholder Engagement (PSE) • Informing  • Consulting  • Deliberating • Deciding • Public meetings • Workshops • Deliberative polls • Citizen juries • Citizen panels • Advisory committees and working groups • Collaborative learning • Listening sessions

13. How to do this well? Theory and Concept Experience and Evaluation We also need to experiment And learn from those experiments Systematic evaluations • Need a sound conceptual frame • A theory of communication • A theory of rationality

14. Theory and Concepts • Habermas’s Theory of communicative action and theory of discourse ethics. • Ideal of fair speech • Types of knowledge claims • Inherently consensual

15. Theory and Concepts • Analysis and deliberation • Facts vs. values paradigm is flawed • Science vs. politics is flawed • Analysis • Seeking patterns through observation • Verifying via multiple witnessing • Deliberation • Testing peer acceptance of assertions • Building shared values

16. Well run dialogue can: Pragmatic Benefits • Clarify positions • Identify points where more knowledge is needed • Create shared understandings • Create shared agreement for action

17. Well run dialogue can: Civil Society Benefits Build trust among the parties Build trust in government Develop citizenship skills Problem solving Communication Ability to work together Better understand one another Better understand the issue

18. Mediation Arbitration Negotiation

19. Legal Disputes Mediation Arbitration Negotiation

20. Legal Disputes Mediation Arbitration Negotiation

21. Legal Disputes Courts Mediation Arbitration Negotiation

22. Legal Disputes Courts Interna-tional Diplomacy Mediation Arbitration Negotiation

23. Legal Disputes Courts Interna-tional Diplomacy Mediation Arbitration Negotiation Policy Making

24. Legal Disputes Courts Interna-tional Diplomacy Mediation Arbitration Negotiation Policy Making Reg-Neg

25. Legal Disputes Courts Interna-tional Diplomacy Mediation Arbitration Negotiation Public and Stakeholder Engagement (PSE) “Med-Admin” Policy Making Reg-Neg

26. Legal Disputes Courts Interna-tional Diplomacy Mediation Arbitration Negotiation Public and Stakeholder Engagement (PSE) “Med-Admin” Policy Making Reg-Neg

27. Legal Disputes Courts Interna-tional Diplomacy Mediation Arbitration Negotiation Public and Stakeholder Engagement (PSE) “Med-Admin” Alternative Dispute Resolution Techniques (ADR) Policy Making Reg-Neg