Design principles for Med- Arb processes in public policymaking disputes

1. Design principles for Med-Arb processes in public policymaking disputes Thomas Webler Social and Environmental Reseach Institute Greenfield Massachusetts USA

2. 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

3. PSE – Public and Stakeholder Engagement • an intentional process designed for the general purpose of eliciting informed input through engaging interested and affected parties in collaborative assessment, planning, and decision-making

4. Public and Stakeholder Engagement (PSE) • When it is dialogue-based, it is a form of mediation • It reaffirms shared values • Promotes common understandings • Builds interpersonal trust • Respects autonomy • Builds civil society • Creates adaptive capacity

5. To do PSE well Theory of Communication Theory of Rationality

6. To do PSE well Theory of Communication Theory of Rationality • Habermas’s theory of communicative action • Habermas’s theory of discourse ethics • Respect autonomy • Be unbiased • Be fair • Be prepared • Help people voice and justify their concerns to others

7. To do PSE well Theory of Communication Theory of Rationality Integration of multiple ways of knowing Analysis Multiple witnessing Observation Deliberation “Force” of better argument Peer testing of ideas • Habermas’s theory of communcative action • Habermas’s theory of discourse ethics

8. Techniques for PSE • Many different formats • Citizen advisory committees • Citizen juries • Deliberative polling • Cooperative discourse… • Should be step-wise and iterative • Steady sense of progress • But opportunity to go back and make adjustments • Adaptive to local needs and conditions

9. What does this have to do with Med-Arb? • It is different in many ways • Can be large number of parties • Decisions affect private interests and the public interest • Non-participants • Participation is infeasible (children, distance, work obligations) • Decide not to participate (uninterested, but affected) • Future generations • Consent may require buy-in from others

10. What does this have to do with Med-Arb? • The person running the show is a good mediator • Comes prepared and knowledgeable • But, is not a source of information • Understands the values and interests of the parties, • Helps people express their concerns, • But does not take sides • Accepts that emotions are part of the process • But is not a therapist

11. Sets the conditions for communication • Therefore, needs a theory of communication and a theory of rationality • Will there be groundrules? • How will they be enforced? • Has a strategy for how to carry out the process and reach closure

12. A strategy needs a conceptual plan

13. A strategy needs a conceptual plan Here is a conceptual plan that mediators can use to design and conduct a PSE process

14. Figure 1. Key questions in designing a public participation process. Who participates? What happens? What information & expertise are needed? Deliberation Analysis What are the agency’s responsibilities? How to reach closure? How to be effective?

16. Design questions • Who gets to participate and in what way? • What happens? • What is the role of information and knowledge? • What are the agency’s responsibilities? • How to reach closure? • How to have an effect on decisions? • How to be adaptable, transparent, and efficient?

17. 1. Who participates and how? • Self selection • Intentional selection • Random selection • Purposive selection • Balance interest positions • Problem of equality - groups don’t want to be treated equally • Efficiency & Reliability • Problem of popular legitimacy • Voting • Solves problem of legitimacy but not equality • Do all participants have the same liberties?

18. Clearly define who can participate and in what manner. • Create diverse ways for people to participate. • Establish an advisory board and have its members help define what is appropriately inclusive. • Let public opinion, not budgets or timetables, determine how much participation is allowed. • Arrange participation for special groups, but be careful not to send other people the wrong message.

19. 2. What happens? • People try to come to understandings • Analysis and deliberation

20. Analysis and deliberation • Two different ways people make sense out of the world • Analysis - making sense out of the world through systematic examination of data • Deliberation - making sense out of the world by talking about it with others

21. Who does analysis? • Scientists • Systematic data collection • Analysis according to established conventions • Professionals • Legal analysis, insurance risk analysis • Lay people • Systematic data collection and analysis (lay monitoring programs) • Anecdotal data collection and analysis

22. Who deliberates? • Scientists • At academic conferences • Among their research peers • Professionals • At professional meetings • Informally with peers • Lay people • Informal everyday observations • Formal lay monitoring programs

23. Analytic deliberative process Feedback and learning Interested And Affected Parties Problem Formulation Select Options Synthesis Officials Implementation Decision Information Gathering Process Design Evaluation Scientists

24. Analytic Deliberative Process - 6 steps Problem formulation Process design Select options and outcomes Gather information and interpret Synthesis Closure (decide)

25. Problem formulation • Each party may have its own definition of problem • Different knowledge • Different responsibilities • Different political objectives • Clarify each party’s definition • Identify reasons for differences • Promote consensus through: • Education – bring knowledge into the process • Mutual awareness • Collaborative expectations

26. During the process mediators need to: • Keep the process moving through the steps • Easy to get bogged down in disputes • But don’t rush people too fast! • Make sure that the relevant facts and information are available to all. • Make sure people are accountable for what they say • Promote responsibility • Promote sincerity

27. Process mediation • Let people have their say, but avoid moralizing • Respect autonomy • Recognize the value of diversity • Manage and contain emotional speech • Allow full expression • Disallow violent speech acts • Encourage people to find the rational root of their feeling • Make suggestions, not decisions

28. 3. How to reach closure • Decide how decisions will be made at the start of the process, well before any decisions are made • To gauge public opinion: • Conduct surveys • Hold referendums • Allow municipal government to express the community’s opinion • Create a community advisory board that negotiates and accepts agreements • Allow communities to decide for themselves how they will decide • Point out what might happen if no agreement is reached

29. 4. How to have an effect on decision? • Make certain that the process is well-timed with the Agency’s window of action • Establish clear decision points in a long-term process. • Publish documents that clearly apply decision criteria and offer supporting evidence for all recommendations. • Publish documents that clearly show the ways that public comments, analytic studies, etc. influence decisions. Similarly, explain why some input not used. • Define the legislative mandates, implementing authorities, and resources required for all recommendations

30. 5. How to ensure transparency, efficiency, and adaptability? • Transparency and openness about what you do and think • Agencies • Stakeholders • Inclusion, not confrontation • Bring the harshest critics the closest to you • Agency must be committed to the process • Listen authentically - be available • Develop personal relationships (no cycling) • Mutual respect • You don’t need to agree with everyone • But you do need to treat all opinion as valid

31. Thank you! A report describing these principles and applying them to the problem of how to manage nuclear waste in USA are available at: www.seri-us.org