Frequently Asked Questions
The negotiated rulemaking process is based on the principle that agencies can create better regulations by developing new rules jointly with the people affected by the contemplated rule. Negotiated rulemaking is a consensus-based decision making process. The parties involved in the negotiation process agree in advance that they seek an agreement that all the members of the negotiating committee can live with.
A conflict assessment is a document that spells out what the issues are as well as who the stakeholders are, where they disagree, and where they might find common ground. The assessment is usually prepared by a neutral outsider, based on confidential interviews with key stakeholders. Typically, after interviewing the obvious stakeholders as well as the less obvious participants suggested by the first group, a neutral party will suggest whether or not it makes sense to go forward with a consensus building process, and if so, how the process ought to be structured.
Such an assessment can be presented orally to the convenor, but it is better that it be written and distributed in draft to everyone interviewed, before it is finalized. The recommendations resulting from a conflict assessment are not the final word. Only the stakeholders themselves can decide whether or not they want to proceed, and, if so, how they want to organize the effort.
Convening, or the gathering together of parties for a meeting or a series of meetings, is not a skill that depends on training. An agency or organization that has decided to host a consensus building process (and wants to encourage others to participate) can play an important convening role. In a private firm, for example, a senior official might be the convenor. In the public arena, a regulatory agency might want to convene a public involvement process. There is some disagreement about whether or not the convenor or the convening organization is obliged to stay "at the table" as the conversation proceeds. In general, convening organizations want to be part of the dialogue, but we do not feel they must commit to on-going participation in a consensus building process.
Mediation is both a role and a group management skill. Facilitation and mediation are often used interchangeably. However, we think the key distinction is that facilitators work mostly with parties once they are "at the table" while mediators also handle pre-negotiation and post-negotiation tasks, including identifying the right participants for a consensus building process, assisting them in setting an agenda and clarifying the ground rules, and even in "selling" recalcitrant parties on the value to them of participating.
Once the process has begun, mediators (and facilitators) try to assist the parties in their efforts to generate a creative resolution of differences. During these negotiations, a mediator may accompany a representative back to a meeting with his or her constituents to explain what has been happening. The mediator might serve as a spokesperson for the process if the media are following the story. A mediator might (with the parties' concurrence) push the parties to accept an accord (because they need someone to blame for forcing them to back-off the unreasonable demands they made at the outset). A mediator may also be called upon to monitor implementation of an agreement and re-assemble the parties to review progress or deal with perceived violations or a failure to live up to commitments.
Some professionals have both sets of skills; many do not. A group leader may have mediation skills and may be able to broker agreement by putting those skills to use. But, again, when the search for innovative solutions rests in the hands of one of the parties, it is often hard for the others to believe that the leader/mediator isn't trying to advance his or her own interests at their expense.
Facilitation is a management skill. When people are face-to-face, they need to talk and to listen. When there are several people involved, especially if they don't know each other or they disagree sharply, getting the talking, listening, deciding sequence right is hard. Often, it is helpful to have someone who has no stake in the outcome assist in managing the conversation. Of course, a skilled group member can, with the concurrence of the participants, play this role, too. As the parties try to collect information, formulate proposals, defend their views, and take account of what others are saying, a facilitator reminds them of the ground rules they have adopted and, much like a referee, intervenes when someone violates the ground rules. The facilitator is supposed to be nonpartisan or neutral.
There is some disagreement in various professional circles about the extent to which an effective facilitator needs to be someone from outside the group. Certainly in a corporate context, work teams have traditionally relied on the person "in charge" to play a facilitative role. The concept of facilitative leadership is growing in popularity. Even work teams in the private sector, however, are turning more and more to skilled outsiders to provide facilitation services. In the final analysis, there is reason to believe that a stakeholder might use facilitative authority to advance his or her own interests at the expense of the others.
Consensus means overwhelming agreement. And, it is important that consensus be the product of a good-faith effort to meet the interests of all stakeholders. The key indicator of whether or not a consensus has been reached is that everyone agrees they can live with the final proposal; that is, after every effort has been made to meet any outstanding interests. Thus, consensus requires that someone frame a proposal after listening carefully to everyone's interests.
Most consensus building efforts set out to achieve unanimity. Along the way, however, it often becomes clear that there are holdouts—people who believe that their interests will be better served by remaining outside the emerging agreement. Most dispute resolution professionals believe that groups or assemblies should seek unanimity, but settle for overwhelming agreement that goes as far as possible toward meeting the interests of all stakeholders. It is absolutely crucial that this definition of success be clear at the outset.
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