by Phillip Schaedler
Phillip A. Schaedler, Attorney at Law
Many people are familiar with the concept of interest based negotiation which is widely used in public school, postal service and manufacturing negotiations. Consensus decision making, which is particularly powerful in the public policy and political context, may not be so familiar.
Just what is Consensus Decision- Making?
Basically, it is an opportunity for people, governmental entities, or other groups to work out differences based on the following underlying principle: Parties to a conflict know better than anyone else (including judges) just what it will take for the parties to satisfy their needs and move forward. A trained outside person with no stake in the conflict uses facilitated dialogue to assist the parties to structure and carry out the conversations and negotiations.The facilitator or mediator structures the conversations to include the following:
• development of guidelines to ensure the conversations will be fair, and the forum for the discussions will be safe and conducive to open and honest dialogue,
• focus on underlying interests and needs of the parties, not the solutions they may initially bring to the table,
• work on a consensus basis - any person at the negotiating table is able to block agreement on any issue (so no legal rights are forfeited if the facilitated dialogue doesn't work), and
• development of trust among the parties that builds confidence they can actually come to an agreement and implement the agreement without outside enforcement.
An example:
A rural township in southeast Michigan had for years benefited from a steady influx of people building and buying homes in both cities and rural areas of the county. To take care of these new residents, the township in 1992 invested millions in the development of a sewer district that covered 1/2 of the township including area contiguous to the largest city in the county.
When formed, the district served 1500 residential units. Financing for the project was based upon estimated growth of another 1500 residential units. Growth proceeded as estimated through 2007 at which point the neighboring city sought to annex a rather large part of the sewer district to accommodate the expansion of the local healthcare provider. The financing assumptions for the sewer district depended upon new customers coming into the district every year. The annexation of territory within the district as well as the economic downturn and resulting stagnation in housing starts threatened financial ruin for the sewer district.
To make payments on the debt, the township needed the territory which the city sought to annex in order to generate revenue from additional service connections. This was the core underlying interest of the township – that of holding on to territory to remain viable going forward. The township sought the development of an inter-local agreement with the city to preserve the financial integrity of the sewer district and avoid default on its obligations. Without such an agreement it would have been impossible for the customers remaining in the district to economically service the remaining debt.
In order to avoid costly and time consuming litigation and resolve the issue the parties agreed to enter into a process of facilitated dialogue and over a period of six months. They were able the lay the groundwork for an inter-local agreement that preserved the long term financial integrity of the township’s sewer district and satisfied the needs of the city for land necessary to the expansion of the county wide health care facility. Through the consensus process they were able to plan for media attention and arrange their meetings so as to comply with the requirements of the Michigan Open Meetings Act and Freedom of Information Act
Consensus agreements differ from ones developed in traditional ways.
In the traditional political process, one side wins and one side loses. Some issues come back time and again, or an issue may be so contentious that it is never resolved. A consensus agreement is more likely to be stronger, more comprehensive and more practical since people with diverse viewpoints participate in its development. The parties voluntarily accept the responsibility to work together to discover solutions that will satisfy their diverse interests. Because of this, consensus processes strengthen understanding among parties. This makes working together easier and avoids future problems.
The key steps for starting a consensus process include:
1. determining if the issue is ready;
2. outlining a process
3. identifying the stakeholders;
4. outlining the goals;
5. determining the time frames and staff resources required, including a facilitator;
6. holding planning sessions with the stakeholders, if necessary, to ensure a firm foundation before the conversations about the issues begin.
Neutral staff services that provide research, process design, facilitation, meeting documentation and drafting often make an efficient and effective process more
likely.
Who are typical participants in a consensus process?
The real answer is that there are no “typical” participants. Who participates depends on the issue, but a consensus process is designed to ensure that all significant interests are represented. In public policy development, it is important to include citizens and leaders that represent different views.
How are consensus agreements implemented?
Once an agreement is reached implementation follows the usual path of any public policy agreement; however, agencies or organizations may discover new approaches to implementation as a result of the creative energy that typifies these processes. Political leaders don’t lose power or legal responsibilities in a consensus process because any policy resulting from the process is subject to existing political processes and legal authority. The agreement may be reviewed, modified, rejected or accepted by leaders. Consensus processes provide support for leaders, not replacement.
How do citizens become involved with the process?
Citizen involvement is a crucial ingredient in the development of any public policy. Rather than the familiar public hearing model with its usually adversarial atmosphere, the community meetings feature leaders as listeners, conversations among neighbors and direct feedback through meeting summaries.
What’s the payoff for using the consensus process?
The resources invested in a consensus process pay off in time spent working on the problem directly rather than is struggling through the political process. In a consensus process, participants must weigh the time investment against many factors: Will a consensus process solve a nagging problem that is unlikely to be solved in any other way? How contentious is the issue — have the parties been able to talk at all about their mutual interests? Will solving the issue result in net financial savings? What is it worth if better relationships and better solutions are the result? On balance, what is the solution worth?
Why?
The consensus process allows the stakeholders to design and build public policy solutions themselves. Such solutions are more responsive, more satisfactory and more durable. Governmental and other groups can use consensus decision making to work on policy planning and development and to work on conflict/disputes at the earliest stages-before they become deeply entrenched. If there’s a major public policy debate going on in your community, if there’s a dispute between municipalities or government agencies impacting your world, if there are major challenges facing your community not being addressed for lack of coordination and united leadership, you may want to consider the use of a consensus decision-making process.
Phillip Schaedler began his legal career with the defense litigation law firm of Janes & Hall P.C. in Mt. Pleasant, representing local health care facilities, physicians and financial institutions. In 1984 he began a 20 year career in the health care and insurance industry representing some of the nation's leading community hospitals and health care systems as well as the world's oldest casualty insurance company. Schaedler has been a national leader in the area of health care risk management and alternative/captive risk fi-nance. He is a board member and former Chair of the Family Mediation Council – Michigan, the State Bar of Michigan Alternative Dispute Resolution Council, the State Bar of Michigan Character and Fitness Committee for District H, and currently a member of the Unauthorized Practice of Law Committee. He is a member of the Professional Resolution Experts of Michigan (PREMi, http://premiadr.com). Schaedler is a member, fellow and former board member of the American Society of Health Care Risk Management. His practice in Adrian centers on alternative dispute resolution in both general civil and domestic relations cases.
