Characteristics of Med-Arb processes

Thomas WeblerSocial and Environmental Research Institute

Greenfield Massachusetts USA

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

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

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

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.

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

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

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

Mediation can help

• Mediation builds trust• Trust is the foundation for effective

negotiation• With uncertain knowledge, trust becomes

more important to reaching satisfaction

Furthermore

• Mediation respects autonomy• It helps to build the bonds the link people

together• Helps create civil society• Creates societal adaptive capacity

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.

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

How to do this well?

Theory and Concept

• Need a sound conceptual frame

• A theory of communication• A theory of rationality

Experience and Evaluation

• We also need to experiment• And learn from those

experiments• Systematic evaluations

Theory and Concepts

• Habermas’s Theory of communicative action and theory of discourse ethics.– Ideal of fair speech– Types of knowledge

claims– Inherently consensual

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

Well run dialogue can:

Pragmatic Benefits

• Clarify positions• Identify points where more

knowledge is needed• Create shared

understandings• Create shared agreement

for action

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

MediationArbitrationNegotiation

MediationArbitrationNegotiation

LegalDisputes

MediationArbitrationNegotiation

LegalDisputes

MediationArbitrationNegotiation

LegalDisputes

Courts

MediationArbitrationNegotiation

LegalDisputes

Interna-tional

Diplomacy

Courts

MediationArbitrationNegotiation

LegalDisputes

Interna-tional

Diplomacy

PolicyMaking

Courts

MediationArbitrationNegotiation

LegalDisputes

Interna-tional

Diplomacy

PolicyMaking

Courts

Reg-Neg

MediationArbitrationNegotiation

LegalDisputes

Interna-tional

Diplomacy

PolicyMaking

Courts

Public andStakeholderEngagement (PSE)“Med-Admin”

Reg-Neg

MediationArbitrationNegotiation

LegalDisputes

Interna-tional

Diplomacy

PolicyMaking

Courts

Public andStakeholderEngagement (PSE)“Med-Admin”

Reg-Neg

MediationArbitrationNegotiation

LegalDisputes

Interna-tional

Diplomacy

PolicyMaking

Courts

Public andStakeholderEngagement (PSE)“Med-Admin”

Reg-Neg

Alternative DisputeResolutionTechniques(ADR)