New Negotiating Tools For Governors
By Howard S. Bellman and William R. Drake
How can governors use the tools of dispute resolution? Howard S. Bellman and William R. Drake address that question in Governors and the Resolution of Public Policy Disputes which the National Governors Association will publish next year. Bellman, a former cabinet officer in Wisconsin state government, is a veteran mediator. Drake is vice president of the National Institute for Dispute Resolution. Following are excerpts from the publication.
Policy conflicts are the business of political life. They involve the essence of political judgement and the best aspects of being involved in politics. Governors always have used negotiations to resolve conflicts and balance competing interests, both to achieve their initiatives as well as to respond to initiatives undertaken by others. But now the increasing pressure to be actively, even personally, involved in many policy disputes calls for a broader repertoire of innovative problem-solving and dispute resolution alternatives.
Mediation and Conflict
Mediation and consensus-building tools are proven procedures to help governors manage and resolve conflicts. Of course, they are not intended to replace traditional legislative, regulatory, administrative or judicial mechanisms. Instead, governors should view them as useful adjuncts to these institutionalized decision-making mechanisms that should not be applied indiscriminately.
Making Decisions
Mediation and other dispute resolution approaches can be used to enhance the decision-making process and help state executives broaden and strengthen their leadership roles. Using mediation as a problem-solving tool does not mean relinquishing the authority or power granted to a leader by state constitutions and statutes. Recent trends suggest that mediation can be used in addition to traditional decision-making processes, and that the use of this alternative is often politically advantageous.
Mediated Negotiation
Mediation, as discussed in this issue on statewide offices, is a voluntary, structured process of negotiation in which key stakeholders-those parties affected by a problem or decision-seek to resolve their differences consensually in ways that-are mutually beneficial. Key to this "mediated negotiation" approach is a collective effort to set aside certain behaviors common to traditional bargaining and negotiation and address the underlying interests of the parties.
Settling the Snoqualmie Dispute
The Snoqualmie River flood control dispute in 1973 probably was the first time mediated negotiations were used by a governor to resolve a dispute other than labor conflict. Negotiations were proposed by Daniel J. Evans, then governor of Washington, when several environmental groups opposed the building of a flood-control darn on the river. At Evans' request, two mediators helped the parties negotiate a solution. By December 1974, an agreement was signed which included formal recommendations for the project and the creation of a coordinating council which guides the project and monitored its progress for its first 10 years.
Resolving Hundreds of Conflicts
Since 1973, mediators have helped states resolve hundreds of conflicts involving almost every policy and decision-making area-aligning highways, siting waste facilitators, establishing environmental standards, allocating social service funds, and drafting rules and regulations. During the 1980s, the use of mediation has increased dramatically. The four states discussed in this issue have created offices to provide mediators. Other states have passed legislation to "trigger" the use of mediation and negotiation during policy development and implementation.
Examples of the Use of Mediation Multiply
Ten states have used mediation in farmer-lender disputes. Virginia authorizes mediation to resolve annexation disputes among local jurisdictions. Pennsylvania sanctions mediation in local land use conflicts. States as different as Connecticut and Mississippi use negotiated investment strategies to allocate federal social service block grant funds. Massachusetts, Rhode Island, Texas, Virginia and Wisconsin have statutes that permit mediation for settling disputes over siting hazardous waste dumps.
The Governor as Mediator
Sometimes a governor may personally serve as a mediator. Although specialists may call that role a "mediator with power," such power does not mean that the mediator cannot be neutral in helping participants reach an agreement. Indeed, the governor's power and stature may be a healthy catalyst for convening key parties and enabling opposed groups to negotiate. Governors can use mediation to enhance their leadership roles in three ways: as consensus builders, problem solvers, and institution builders. Depending upon the circumstances, governors may fill any of these roles personally or use their authority and influence to help others act in such capacities.
The Governor as Consensus Builder
Governors often act as consensus builders, an appropriate strategy for resolving complex issues. This role can be greatly enhanced, in selected situations, by using a mediated or facilitated approach to negotiations. Consensus building through mediation involves more than compromise. It recognizes areas of agreement which are mutually acceptable to all interested parties. A neutral mediator or facilitator can help structure a multiparty negotiation in ways that increase the chances all parties will agree on some, if not all, of the key issues.
For example, former Colorado Governor Richard Lamm once convened a 31-party negotiation over water policies and asked a team of professional facilitators to assist him. The parties ranged from the Denver Mayor's office and suburban governments and water districts to the League of Women Voters and neighborhood groups. Eventually the Denver metropolitan water roundtable successfully negotiated a needed set of policies and guidelines.
The Governor as Problem Solver
Governors use the problem-solving approach to address a specific situation and to settle urgent problems rather than to resolve issues related to the gradual development of broad policy. As with consensus building, the governor may personally intervene to help structure negotiations or may arrange for assistance by a third party.
For example, Governor William A. O'Neill of Connecticut assumed the role of problem solver to reallocate social services block grant funds by convening a Negotiated Investment Strategy, a form of mediated negotiation. The federal government had forced states to accept sharply reduced social service funds in a lump sum and to distribute the money among competing programs. The Charles F. Kettering Foundation provided two mediators to guide the negotiations. O'Neill assigned a personal representative and committed himself to accept a consensus agreement. This personal commitment was an essential element in creating an environment for competing parties to enter and successfully conclude the negotiations.
The Governor as Institution Builder
Governors can support and promote a state framework that sanctions and provides incentives for the use of mediation in public policy and enforcement disputes. The statewide offices of mediation discussed in this issue are the best current examples.