PUBLIC POLICY MEDIATION: A STEPPING STONE FOR THE FUTURE
INTRODUCTION
Democracy was once defined as a way of resolving disputes through argument rather than force. Recently, we have begun to expand this definition include, identify and seek solutions based on common needs and interests, not to win or lose arguments, but to reach consensus. Across the country, states are facing demands in the areas such as housing, environment, education, health care, crime and delinquency, welfare and transportation, trying to find solutions to financial problems. Although the priorities of each state may vary, it is unanimously clear that the requirements will persist and strengthen over time. Therefore, new methods to solve these problems have been needed for a long time. In order to formulate and implement policies related to these needs, a balance must be found between important departments. One approach is to solve problems through mediation and collaboration, with the goal of formulating solutions to problems that support common interests and desires.
Public deliberations, debates, and decisions must remain open and comply with the rules and procedures of the legislative and executive branches. Using mediation can provide federal and state-level assistance within branches to promote more effective solutions. It is a result-oriented approach that ensures that a viable agreement is reached between the identified parties, who usually participate as negotiators on behalf of the constituencies. Therefore, the mediation of the civil court overlaps and complements the process of public participation in promoting and supporting civil discourse.
Public policy mediation creates a forum for negotiation between the governments, stakeholders, and where appropriate, the public. All parties contribute with their technical expertise to better understand the preferences of the participants, which are incorporated into the discussion, increase mutual affection and create untapped opportunities for reaching consensus. From a procedural point of view, public policy mediation cases usually involve multiple government departments, non-profit and advocacy community organizations, and individual sector entities as parties.
FEATURES AND ITS BENEFITS
The concept of policy mediation is typically dynamic. Most parties negotiate while determining their cause and therefore the applicability of the position they advocate, but they are not sure whether they are capable of succeeding through the negotiation. Therefore, at the beginning of the project, the uncertainty of knowledge dynamically points to pre-existing configurations that lead to stagnation, deadlock, and conflict.
Public policy mediation determines the prevailing passionate tensions among participants, and then discovers a unified “repressive” force that guides these passions into productive negotiations. In most public policy cases, the lives of participants depend on their adherence to the values related to their organization’s mission and their deep enthusiasm for their cause.
Innovative dispute resolution is increasingly being used to supplement traditional decision-making processes at lower levels of state, local and federal levels. Solving problems through collaboration, and in some cases, with the help of mediators, the United States has resolved complex intergovernmental and public policy disputes. Agreements were reached on a wide range of issues including education and transportation policies, as well as specific issues such as the location of highways, port development, restoration plans, and site selection for nuclear power plants.
ROLE OF MEDIATOR IN PUBLIC POLICY MEDIATION
It is important for a mediator to understand the issue the party has. In public policy mediation, when the mediator is assessing, it provides an intake of who are the people that are affected by the conflict and who will be needed to take future actions. This aids the mediator in understanding the views of the stakeholders, the interests they have and put up questions that lets the stakeholders provide their side of the conflict.
Further, the mediator has to strategize the process by way of joint fact finding and enabling the parties to learn and create an understanding towards the other parties’ interest. The role of the mediator is pivotal as by creating an understanding between the parties, a call for ‘joint action’ can be taken by putting up questions of what can be done.
Also, at the final stages of mediation which mostly focuses on solutions, the mediator helps the parties to come up with solutions and actions that would mutually benefit parties, focusing on the parties’ underlying needs instead of interests and then enabling them with mutually beneficial outcomes.
THE PROCESS OF PUBLIC POLICY MEDIATION
In numerous instances, public policy mediation has been helpful for private sector parties seeking government approval, development of communities. Parties in public policy mediation are constantly challenged to learn about other parties’ facts, interests, beliefs and their views. After knowing the role that a mediator has in this, following can be seen as procedure in which such mediation is conducted:
CONFLICT ASSESSMENT: Public Policy Mediation starts when there arises a need for help. Herein the mediator after receiving the request to mediate takes a “conflict assessment”. This enables in identifying the stakeholders, figuring out their interests, and marking areas where agreements or disagreements can be met. The mediator interviews the stakeholders which initiates the mediation process. The assessment allows stakeholders to share their views without an interference of other parties’ analysis.
CONVENING STAKEHOLDERS: Once the mediator is convinced post interview to move ahead with the conflict, a decision is made to bring together the stakeholders to discuss the issues over which the conflict is between the parties. Herein the roles and agendas of the stakeholders are mapped out, the stakeholders take ownership of the responsibilities they possess. This process was based on the procedural commitments stated by the mediator, partly because he intervened during the development of the conversation, and thus obtained reasonable value.
DELIBERATION AND LEARNING VIA FACT-FINDING: The next phase of mediation is broadly categorized by its deliberative character. This relates to questions of data and therefore the potential of mediation shifts to jotting the facts that parties present and also manage the “contradictory certainties” that are an evident part of policy-making. While policy debates are argumentative encounters, during which opinions are used tactically, getting a solution to the initial questions, a solution which has to convince the parties to agree on, such a solution isn’t the end of the process, because that inquiry represents a fundamental part of the parties that are aware of the facts and have jointly agreed. By studying the original question, obtaining answers, and then reorienting the questions to solve the pragmatic problems of the two parties, the joint research consultants provide not only facts, but also opinions, not answers but better questions, not only new research framework but real data. Also, suggestions on possible ways to advance the process.
LEARNING AND JOINT FACT-FINDING: The mediation now starts to progress with the actual negotiations starts take place. The final stage of mediation practice aims to help both parties design these comprehensive solutions by formulating policy recommendations that consider the needs and interests of both parties to cope with the deep and lasting concept of interdependence. To attain mutually beneficial outcomes, the mediated negotiation must have a combined effort from parties to work towards ideas and suggestions that give a solution encompassing their needs. The mediators try to achieve this by giving perspective to stakeholders and parties which help them recognize their interdependence. The conflict at discussion is a shared conflict between them, this recognition opens the door to sharing possibilities of resolving.
MEDIATING NEGOTIATIONS: Public policy mediation in its last stage is directed at helping parties in curating policy proposals that bring within it the needs and benefits of all parties; this stage is where the parties evidently move from arguments and debates over to accepting and building a cooperative relationship that benefits all. These mediated negotiations create a link between the parties’ interdependence and what they seek out of this; this gives way for numerous uncovered possibilities that may initially not have been expected.
The whole process really emphasizes the part mediators have to take in gaining the trust of the parties, defining their roles and aid such transformative solutions that started with ‘a never- ending argumentative process’ to facilitating a deliberative process that not provide new possibilities of approaching the issue and innovative solutions that may never have been accounted for but also mends and builds on new relationships for stakeholders.
POLICY MEDIATION: A ROAD AHEAD
Given the polarization and unusually contentious state of political behavior and methods across the country, we can anticipate an increased reliance on public policy mediation in the near future. The overall awareness of mediation continues to grow within the public and therefore the media involved mediation as public issues deadlock.
The obvious shift in political climate all across the world and the increasing popularity and reliance on Mediation, a growth in role of mediation in public arena could be seen. Mediation can play an important role to overcome conflicts which would result in future action for the public good. So the popular belief remains that if this mediation process is conducted in the best interest, keeping in mind the societal benefits it comes with, it will gain more appreciation and acceptance in the coming times.
OBSTACLES IN IMPLEMENTING PUBLIC POLICY MEDIATION
Being one among the foremost effective manners of deliberating upon and framing policies, the concept of Public Policy Mediation has its own challenges, the concept might sound very fascinating, but the government doesn’t let go of its powers and delegate it to the general public easily. In the Trump era in the United States, Trump negotiated with one-sided power perception and intuition, summoning and exploiting opponents’ weaknesses in real time, without restraining or doubting the unintended consequences that might arise. He successfully created value by threatening to take tough action, and then by offering immunity to serious damage to force his opponents and allies to make concessions. This is seen as an extreme change in negotiation strategies affecting the practice of political mediation. If political mediation is to be used to resolve US problems at this dangerous moment of division, it may need to be improved to accommodate the dynamics of the new policy and the changing expectations of potential parties.
Litigation to resolve disputes through the courts may be a truly open procedure. When a dispute is settled out of court through mediation, the parties will keep it confidential unless otherwise agreed. Very contrary to the present is that the concept of Policy Mediation, where Openness is important.
Mediation in public policy should never be confidential. Public policy disputes refer to disputes affecting members of the public other than the parties involved, usually involving one or more levels of government. Mediation has important advantages for the parties and the settlement of substantive disputes, so mediation should be encouraged even on public policy issues.
When mediation is successful, it will almost certainly attract more residents to use mediation to solve future problems. They gradually understand that this method encourages them to participate deliberately. In addition, if the participating management department reflects the consensus between the parties defined in the established basic rules, the participating management department is in line with the implementation of the support product. However, the administrative agency may decide not to implement the consensus recommendation because it may not have a legal obligation to do so, because its power and responsibilities cannot be transferred to a temporary group of citizens. Of course, if the extensive supportive deliberation with the full participation of the government throughout the negotiation process is not used, it may lead to negative political impact.
CONCLUSION
To make a more perfect union, our Constitution proceeds to align a system of checks and balances to ensure that the representative government is “of the people, by the people and for the people”.
At the legislative level, mediation would be instituted within the Committee or Sub-committee assigned to the difficulty. After a performance of the difficulty that those from and against can request or be requested by the majority or minority leadership to proceed with mediation to identify the commitment resolution, thereafter, the parties will return to the Committee or Sub-committee for question, clarifications and public approval or disapproval of what was prescribed or attempt to be prescribed.
At the executive level, the mediation would result from an executive official, the president, the governor, the mayor, the cabinet member or other Authoritarian personnel, who would be requested from acceptable representatives to continue with a mediation forum.
At local levels within the USA, there are differentials of examples during which, with collaborative efforts have fulfilled the interests of the community. In some cases, the “mediators” are not disinterested neutral in the least, but with a comfortable, convincing interest within the result.
We have to make a receptive climate, one that generates an informed, active and participating citizenship, to be able to show both executive and legislative power of the State with the potential that these approaches offer when addressing the needs of the primary State and to advance the reform within the courts. To provide access to options to resolve disputes apart from traditional award.
The challenges facing our nation are discouraging, such as the reconstruction of developing cities and finding resources to compete economically, improve and protect the environment, and take care of education, health, and the well-being needs of society. Public policy mediation plays an important role in achieving solutions through a decision-making process that reflects the complexity, limits and responsibilities of the complexity of organizations, agencies, governments and interest groups that effectively occupy conflicts that inevitably accompany efforts to meet the challenges of this importance. Therefore, the methods of mediation and solving collaboration problems allow citizens to participate in reaching a more complete understanding of problems and looking together to the solutions that serve democracy the best.
REFERENCES
Stephen G. Bullock & Linda Rose Gallagher, Surveying the State of the Mediative Art: A Guide to Institutionalizing Mediation in Louisiana, 57 LA. L. REV. 885, 892 (1997).
McAdoo and Bakken, Local Government Use of Mediation for Resolution of Public Disputes, 1990.
Susan L. Podziba, Conflict, Negotiation, and Public Policy Mediation in the Trump Era.
Hart Brown Solicitors, Top 5 Benefits of Mediation.
Sarah Gonski, Easing Gridlock in the United States Congress through Mediation:Letting Our Cities and States Teach Us Lessons on Getting Along, A.B.A. 1, 12 (2013).
Kelman, H.C. 1996. “Negotiation as Interactive Problem Solving” International Negotiation 1:9987–124123.
NISHI RATHORE
School of Law,
Jagran Lakecity University
Bhopal, M.P.