Workshop participants were asked to consider the following scenarios and come prepared to explore them in greater depth through a panel discussion and audience participation.
Each scenario will be the focus of a 105-minute panel facilitated by one of the Workshop organizers. Each panel will include several dispute resolution professionals and several political theorists. Each panelist will have 5 minutes to make an opening comment on the situation described in the scenario. Panelists will then have 20-30 minutes to respond to each other’s statements. The rest of the Workshop participants will have at least 30 minutes to join the conversation that emerges about each scenario.
Scenario 1: Municipal Decision Making
Facilitator: Judith Innes
Panelists: Josh Cohen, Archon Fung, David Laws, Carolyn Lukensmeyer, Jane Mansbridge, Nancy Roberts, Jay Rothman
A local government decides that it wants to “consult” citizens more directly before a critical long-term development decision is made (regarding the investment of a substantial amount of public money). The dispute centers on the appropriateness of filling mapped wetlands so that a new highway spur connecting the city to the nearby interstate can be built. As usual the battle lines have been drawn between environmentalists who oppose filling the wetlands and development interests who say that the roadway is the key to revitalizing the declining city economy. Elected officials are deciding who to include in the consultation and how to include them. One faction wants the mayor to pick a blue ribbon advisory committee to formulate suggested city policies and priorities governing wetland protection (above and beyond federal and state laws). Another wants to run a set of public hearings once the experts selected by the city have prepared a detailed plan for the roadway. A third proposes a non-binding referendum. A fourth wants a consensus building process that would involve all relevant stakeholder groups (and let them nominate their own representatives). This consensus building process would involve a fairly large group of stakeholders in generating detailed plans for the site as well as local wetland protection polices.
The focus is on whether and how to supplement the work of representative democracy at the local level. Are more “direct” forms of democracy “better?” Should major community-wide decisions be made only after some form of public deliberation precedes formal governmental action? If so, how should the options for supplementing the work of elected and appointed officials be evaluated? How might a municipally-authorized consensus building process be run, particularly with regard to the selection of participants? If the product of an ad hoc consultative process is not binding on elected and appointed officials, what is the incentive for potential participants to “come to the table?”
Scenario 2: Metropolitan Policy Making
Facilitator: David Booher
Panelists: John Dryzek, Mike Elliott, Frank Fischer, Bill Isaacs, Susan Sherry
A metropolitan agency wants to engage a wide range of stakeholders in a policy dialogue regarding regional “fair share” housing policy. State and metro agencies have agreed to hire a professional “mediator” to help manage a policy dialogue on a metropolitan scale. The question is, what should the mediator’s mandate include, especially with regard to the involvement of advocates of low income residents and residents of color who may or may not have the knowledge and skills needed to participate on an equal footing with real estate and municipal interests. The 15 suburban towns on the periphery of the region are trying to fend off litigation (and possibly state legislation) charging that their exclusive land use policies are excluding poor people from the jobs and housing available outside the central city.
The focus is on the role of a “mediator” in a policy dialogue when unequal power and capability among the stakeholders may well influence the outcome. Also, are alternative dispute resolution (ADR) strategies that seek to avoid or settle litigation a good idea when “rights” (particularly of the poor) are at stake? Assume that the metropolitan agency (a voluntary inter-municipal collaborative) has little or no authority. Does it make sense to generate informal agreements when the potential host agency does not stand for election?
Scenario 3: National-level Consensus Building
Facilitator: John Forester
Panelists: Peter Adler, David Fairman, Jim Fishkin, Susan Collin Marks, Susan Podziba
A federal agency has decided to involve the public in a negotiated rule making process (i.e. drafting regulations pursuant to federal legislation). Many questions regarding the role and structure of government advisory bodies in this context are answered by federal legislation (i.e. the Federal Advisory Committee Act). Some questions, however, remain open. For example, what kind of fact-finding or technical studies can and should the advisory group commission on its own (separate from the sponsoring agency)? What approach to joint fact-finding is most likely to ensure an effective balance between science and politics in the development of proposed regulations? And, is it reasonable to seek such a balance through the engagement of ad hoc representatives of various non-elected constituencies? Who should pay for whatever studies the group decides to commission? How might peer-review of the technical work fit into this process? And, what if the regulations in question concern actions or polices that could create serious risks to human health and safety? When fear, anger and emotion run high, what can and should be expected of joint fact-finding or efforts to balance science and politics?
The focus in this case is on generation of knowledge for consensus building, especially at the federal level, and ways of resolving science-intensive policy disputes (especially when fear and anger are involved because of potential risks to human health and safety). Questions about judicial review of regulations produced through national-level consensus building are sure to be raised. Should such regulations (especially when consensus is reached) be immune from subsequent legal challenges? If the participants in such a process are designated official advisory group members (under the Federal Advisory Committee Act), does this require that they all have substantial technical expertise? What kind of transparency should be required of such technically-oriented dialogues?
Scenario 4: Implementation of Informally Negotiated Agreements or Settlements
Facilitator: Carrie Menkel-Meadow
Panelists: Maarten Hajer, David Kahane, Richard Reuben, Marianella Sclavi, Dan Yankelovich
A neighborhood effort to involve local residents in overseeing a “brownfields redevelopment” program is just wrapping up. Federal and state funds, as well as substantial private investment, will be allocated to help clean up an abandoned contaminated site based on the clean-up agreement reached through a mediated dialogue. The plan answers the question “How clean is clean?” and spells out the proposed design of new housing, commercial and recreational facilities to be developed on the site. A consensus building process - preceded by a credible conflict assessment - generated a written consensus among the more than 30 participants in the process. Right before the group presents its final recommendations to the city council, however, a new neighborhood group appears claiming that it has been left out, that it had tried unsuccessfully to convince the advisory group to modify its proposals, and it is seeking a promise from the city council that the advisory group’s proposal will not be accepted.
The focus is on the legitimacy of consensus building promises and the conditions under which that legitimacy might be established or rightly contested. If the relevant agency gave tacit approval to the process (and assigned technical staff to attend), on what basis can it or should it ignore the consensus developed over many months through a completely transparent process? Would a non-binding referendum on the proposed plan “solve” this problem?
