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Article Excerpt
KEYNOTE ADDRESS
It's a great pleasure to be invited. I want to talk about democracy. I also want to talk about public dispute resolution, social justice, and how these three topics fit together.
Imagine the following scenario: a small city, wherever you like; a proposed industrial development project of whatever kind is proposed. The city council and a number of other boards and permitting agencies in the city must say yes if this is to go forward. It involves something bigger than what the general regulatory system is set up to handle. Thus, it will require a special permit. Indeed, a number of different boards and departments will have to give approvals.
There is no question that this project is desirable from the standpoint of producing jobs and sorely needed tax revenue. It's pretty clear that the environmental and public-health risks associated with this project are substantial enough to cause concern, especially if impacts are not appropriately mitigated and design options that would reduce those impacts are not pursued. So how will the decision about whether and in what form to permit this project get made? What is the normal democratic decision-making process in such situations in the U.S.?
The city council, which has to give at least a primary permit, taps one or more agencies to undertake studies of what is being proposed. The city council might hold hearings, supplementing those required under the zoning law with additional public meetings. There would probably be a lot of lobbying behind the scenes by people for and against the project, speaking through and to members of the city council as well as various agencies. There would undoubtedly be a lot of letters written to the newspapers protesting and supporting the project. There would probably be a lot of direct public appeals--in other words, the proponents would take ads in the paper, contribute op-eds, contribute editorials on the local TV channel, while the groups opposed would mobilize, in whatever ways they can, to sway public opinion against the project because of their worries about the environmental risks as well as their concern that the gains will all go to a small number of out-of-city gainers, and not to local people who ought to be benefiting from the project.
At some point, the city council will vote. The majority will rule. Then there's likely to be litigation. It is highly unlikely that the vote in favor, granting the permits, will be definitive. Rather, we would expect somebody to say, "I want another bite at the apple. I don't like that decision." It doesn't matter which side; it could even be both sides. So they will litigate, because the primary venue for democratic decision-making in these kinds of cases is the court. Other opportunities are insufficient to convince those adversely affected that their interests have been adequately addressed. Then, whether the litigation succeeds or not, we'll look to the next election to change the membership of the council so that those who were unhappy can try again to make sure the outcome is different the next time a project like this is proposed.
I call this the conventional procedure for making decisions of these kinds in our democratic society. It offers a measure of accountability through the electoral process. It incorporates technical and expert input via the staff of public agencies. It builds on freedom of speech, so people can have a say. How and whether that say gets taken into account by our elected and appointed officials, however, is not clear. Nor is it clear what democracy requires in that regard.
Now consider this alternative. A project is proposed, conceptually, at a very early stage, to the council. The council says to the proponents, "Terrific. We want to set in motion a process to see if consensus can be reached on whether a project like that in the place you have in mind ought to go forward. If so, what stream of benefits and costs--gains and losses--are likely to be associated with it in the minds of those who see themselves as stakeholders? And, what can be done to adjust the benefits and costs flowing from the project to ensure that everyone is treated fairly and there is sufficient attention to sustainability?"
So the council, at that moment, hires a mediator (i.e., a professional neutral) and says, "We need to determine who should be at the table to participate in a collaborative design process, to ensure that we come as close as possible to an informed consensus on whether, and if so, how, this project should go forward." The neutral undertakes something we call a conflict assessment. "Conflict assessment" is both a noun and a verb. As a verb, the conflict assessor, the neutral, interviews, privately and confidentially, three circles of potential stakeholders.
The first is an obvious set of people who have already made their views known. It's clear that certain groups will want to be involved--abutters to the proposed site, various city departments and agencies, maybe regional agencies, maybe state or federal departments and agencies. The assessor meets with them and says, "Listen, confidentially and off the record, what are your concerns about this project? What issues do you think ought to be addressed in a collaborative process to see whether, and if so, how, this project should proceed? I'm not going to quote you, but I need some sense of what you think the conversation should cover and who should be at the table. I can't do that without hearing from you. I need to map the potential conflict." Within that round of interviews with the obvious first circle of potential stakeholders, one of the questions the neutral asks is, "Who else do you think needs to be at the table? Who else do you think I ought to be talking to?"
That first set of conversations leads to a much larger second circle of conversations. These are conducted in the same way: "Confidentially, off the record, I want to talk to you. I have been hired by the Council to explore the question of whether there ought to be a collaborative process, and if so, who should be at the table and how the conversation should be structured." The Council announces publicly that this consultative process is under way and says, "Anybody who thinks they should be involved, contact the neutral." The neutral's name, email address, phone number, and local drop-in spot are described in a newspaper story about the process. This identifies the third circle of stakeholders. The first circle of people interviewed are the obvious players identified by those in authority; the second circle is suggested by the first circle; those in the third circle nominate themselves when they hear that there is a process of conversation underway.
That's a lot of interviews. We do such interviews and prepare a one-page matrix, a map of the conflict, with categories of groups down the side and issues across the top. In each cell, we indicate what that category of stakeholders thinks about that issue. How important is it to them? What do they most want to have happen and least want to have happen? What else do they think they need to know? We...
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