This article originally appeared in the April 1997 issue of Consensus, a newspaper
published jointly by the Consensus Building Institute and the MIT-Harvard
Public Disputes Program.
The following extensive excerpts are reprinted by
Consensus as a service to SPIDR.
These recommendations have been prepared by a committee supported by a grant
from the William and Flora Hewlett Foundation, and jointly sponsored by the Hewlett
Conflict Resolution Theory Center at Georgia Tech and the SPIDR Environment/Public
Disputes Sector. The Committee included practitioners from within and outside government,
government program managers, and university researchers.
This report focuses on best practices for users in the United States and
Canada. While it may be applicable in other countries, it may need to be tailored to the
political frameworks and particular institutions in those contexts.
This is intended as the first in a series of cooperative efforts between
theoreticians and practitioners to serve the needs of the emerging practice of conflict
resolution in the public policy arena. This report has been reviewed and improved
immeasurably by practitioners and government agency dispute resolution managers.
These guidelines for best practice are proposed by the Society of Professionals in
Dispute Resolution for government-sponsored collaborative approaches that seek agreement
on issues of public policy. The processes these guidelines address have the following
These recommendations are directed primarily towards federal, state, provincial, and
territorial government officials to help ensure successful use of collaborative processes
for decision-making. They may also be useful to local government, although consideration
must be given to how stakeholder-based processes may affect more inclusive citizen
Negotiation and consensus building have long been used to resolve policy conflicts.
Governments, businesses, interest groups and individuals negotiate and use cooperative
approaches to decision making every day, whether formal or informal, by choice or out of
necessity. These activities are not new.
What is relatively new is the intentional application of these processes, assisted by
an impartial facilitator, to a wide range of multi-party, multi-issue disputes and
controversies. In the 1970s mediators began helping parties settle environmental disputes,
usually over site-specific issues, but also over land use and the allocation of natural
resources. The use of collaborative efforts has evolved to developing policies and
regulations for a broad array of issues. From about 40 cases in the 1970s, the number grew
to over 400 during the 1980s, and the trend is continuing. An approach that began as a
foundation-funded experiment has increasingly become a component of governmental decision
Reasons for this growth vary, but these factors stand out. First, consensus-based
agreement seeking processes have proven successful in a wide array of applications,
particularly where several agencies or levels of government have jurisdiction, power is
fragmented, and there are a variety of stakeholders with conflicting views (e.g.,
resolving complex multi-party issues, developing regulations, policy making, strategic
Second, the public is demanding more say in the policy making processes of government,
which has accelerated the use of consultation and consensus-building as ways of working
out decisions that can be implemented. Consensus-based approaches have the advantage of
building agreements that last. The focus on collaboration and seeking mutually acceptable
outcomes contributes to improved understandings among participants, which in turn enables
them to work out differences and arrive at better solutions. These consensus-based
approaches are increasingly being viewed as a cornerstone in efforts that call upon
governments to be more efficient and effective.
Along with the growth in use of these processes, a number of concerns and questions
have emerged regarding the appropriate use of these processes. These include:
As the use of collaborative approaches for resolving public issues has expanded, so has
the terminology for naming and describing them. As a first step in sorting out the
terminology, the Committee distinguished agreement-seeking processes from two other
primary purposes for discussions between government agencies and the public–information
exchange and advice. Given these objectives, the following chart highlights the
differences in outcomes that can be expected:
|1. Information exchange||Improved communication and understanding; lists of concerns
and/or options; better definition of problems or issues
|2. Feedback/Consultation||Opinions or suggestions for action are obtained; plans or
drafts are refined
|3. Agreement-seeking decision-making||Agreements on actions or policies are reached; consensus is
Only processes in the third category are the subject of this report, but even labels
for them abound. Some derive from labor/management bargaining. Others combine words that
describe some attribute of collaborative consensus-based public policy processes. The list
below gives a sense of the hybrids that may be found.
The imprecise nature of these terms underscores the need for participants in each case
to define their process clearly. As for labeling a particular process, participants
usually refer to it in concrete, case-specific terms, such as “resolving the Westside
urban growth issue”, “trying to establish a new policy for nursing homes”,
“the airport noise negotiations”, or “the harbor development
roundtable.” Regardless of the label, type of public issue being discussed, or venue
within which it occurs, the essential activity is the same–people representing different
interests trying to find a solution that works for all through negotiation, assisted by
someone acting impartially who manages the process.
Central to this activity is a search for consensus, a concept that in itself can
generate controversy, and that participants should also define for themselves. Commonly,
the term is used in the practical sense of, “Do we have an agreement everyone can
live with–and that is doable?” Politicians often recognize a similarly practical but
lower threshold for consensus, as in, “Do we have enough agreement to keep us out of
trouble and to allow us to move forward?” The important principle is that these
processes do not operate by voting or majority rule. Either the parties reach agreement
(according to their definition) or they do not. If they do not, they may decide to explain
how they disagree, but a majority/minority report is not a desired product of a
Finally, this report employs the term facilitator for someone who manages a negotiated
process. While facilitator and mediator are sometimes used interchangeably, facilitator is
a more general term than mediator. Facilitators may also manage meetings for purposes
other than negotiating agreements.
The recommendations that follow are directed towards overcoming the concerns and
problems that have been identified. They propose a set of best practices for use of
collaborative decision-making processes.
An Agency Should First Consider Whether a Collaborative Agreement-Seeking Approach Is
Before a government agency, department, or official decides to sponsor an agreement
seeking process, it should consider its objectives and the suitability of the issues and
circumstances for negotiation. In particular, before the sponsoring agency convenes a
collaborative process, it is essential for the agency to determine internally its
willingness to share control over the process and the resolution of the issue.
Appendix 1 provides a check list of factors to be considered
as part of an initial screening.
If after an initial screening negotiation appears plausible, agency staff and
management next should discuss whether they are willing to negotiate. An important
consideration is the relationship of such a collaborative approach to the agency’s
statutory decision making responsibility:
Misunderstanding between the agency and stakeholders can occur if the agency calls a
meeting for one purpose, but tries to achieve another. One example is convening a process
for information sharing and then expecting agreements to emerge. Another is holding
meetings under the guise of consensus building, when information gathering is the sole and
intended purpose, or portraying a public relations (opinion changing) initiative as a
collaborative process. Misuse of collaborative processes diminishes the likelihood of
their future use. The same cynicism that sometimes marks public reaction to government’s
efforts to solve problems can extend to improperly used collaborative processes.
Stakeholders Should Be Supportive of the Process and Willing and Able to Participate
In order for an agreement-seeking process to be credible and legitimate,
representatives of all necessary parties–those involved with or affected by the potential
outcomes of the process–should agree to participate, or at least not object to the
process going forward. If some interests are not sufficiently organized or lack resources
and these problems cannot be overcome, the issue should not be addressed through
When decisions are made in consensus-based forums, influence from non-agency parties
increases. To preserve the legitimacy of the process, all interests must be adequately
represented and have joint control over the shape of the process and its outcomes.
Determinations about representation are easiest when stakeholders are obvious, and when
they are prepared to participate effectively in the discussions. Reaching agreement may be
difficult, but at least there is no question about the legitimacy of the process.
The agency should specifically examine whether other agencies, departments, levels of
government, and elected officials have a stake in the issues and seek their support for
the process. The involvement of other governmental entities is often critical to
successfully resolving the issues and implementing the agreements.
The burden of assuring that participants have the ability to participate effectively
falls most heavily on the sponsoring agency or department. Training or orientation in how
the process works, and support systems–expertise, information resources, or financial
support to enable partici-pants to get to meetings or to communicate with their
constituencies–can be provided if acceptable to all parties as part of the process.
Agency Leaders Should Support the Process and Ensure Sufficient Resources to Convene the
Agreement-seeking processes need endorsement and tangible support from actual
decision-makers in the sponsoring agency or department with jurisdiction and, in some
cases, from the administration or the legislature. The support and often the involvement
of leadership is necessary to assure other participants of the commitment of authorized
decision makers who will be responsible for implementation. Their support helps sustain
the process through difficult periods and enhances the probability of reaching agreements.
Sponsoring agencies also need to ensure that there are sufficient resources to support
the process from its initiation through the development of an agreement. As part of the
pre-negotiation assessment, sponsors need to determine how they will meet evolving
resource needs and provide funds and staff to accomplish the goals of the negotiation.
When leaders show visible support, including consistent involvement in meetings and
substantive discussions, other participants are reassured that their investment of time
and resources is worthwhile. If agency leaders do not provide support, caution should be
exercised in initiating collaborative agreement-seeking processes. Without this support,
the likelihood of success is greatly diminished. The sponsoring agency needs to ensure
that it is appropriately represented at the table, and is prepared to support its
representative. It is also important for the sponsoring agency to be consistent, and to
the extent possible, to speak with one voice throughout the process.
Multi-party negotiations can require considerable staff time and funds. Participants
may need technical assistance beyond what the agency can provide. Negotiators collectively
may want the advice of outside experts. If a key party lacks sufficient staff or other
resources, it may be important to provide them with organizational or technical assistance
within the process. If resources cannot be secured to assist key parties to participate,
either as part of the process, or by agreement or with help from the other parties, then
the agency should use means other than collaborative agreement-seeking to reach a
An Assessment Should Precede a Collaborative Agreement-Seeking Process
Before an agency, department, or official initiates an agreement-seeking process, it
should assess whether the necessary conditions are present for negotiations to take place.
Presence of the factors in recommendations 1-3 are best ascertained as part of a
There are three phases to successful agreement-seeking process: Phase 1, the assessment
and preparation, or pre-negotiation phase, involves determining whether the necessary
factors to ensure legitimacy are present as well as planning and preparing for the
process. Phase 2 involves engaging in negotiations to try to reach agreement. Phase 3
involves implementing the agreement.
During the pre-negotiation phase, an assessment is conducted to help the agency and
other participants determine whether or not to proceed. Potential participants need to
agree to participate before an agency decides to pursue an agreement-seeking process. It
is here at the beginning of the process when an experienced facilitator may be of greatest
service. Unfortunately, agencies often call on the facilitator only after they have
invited all the participants and scheduled the first meeting.
The assessment involves ascertaining whether key considerations are met. A facilitator
often plays an integral role at this stage, consulting with the agency to help clarify its
objectives, and interviewing potential parties to ascertain their views. This phase
provides an opportunity for the facilitator to develop agreements among all participants
about the scope of the issues, objectives and design of the process, role of consensus as
decision rule, and timelines. While the assessment can take weeks, experience demonstrates
that it is key to success and saves time overall.
Ground Rules Should Be Mutually Agreed Upon by All Participants, and Not Established
Solely by the Sponsoring Agency
All participants should be involved in developing and agreeing to any protocols or
ground rules for the process. Once ground rules have been mutually agreed upon, the
facilitator should see that they are carried out, or point out when they are not being
followed and seek to remedy the problems. Any modification to ground rules should be
agreed upon by all participants.
Ground rules should clearly state the purpose and expectations for the process and the
end product, how the process will be conducted and decisions made, the roles of the
participants, including the sponsoring agency or department, the role of the facilitator,
and other matters that are important to assure participants of the fairness of the
process. Appendix 3 contains guidelines for formulating ground
The Sponsoring Agency Should Ensure the Facilitator’s Neutrality and Accountability to all
It is preferable for all parties to share in selection of the facilitator. When that is
not possible, the agency or department has a responsibility to ensure that any facilitator
it proposes to the participants is impartial and acceptable to all parties. The
facilitator should not be asked by the sponsoring agency, or any other participant, to
serve as their agent, or to act in any manner inconsistent with being accountable to all
Appendix 4 provides a list of best practices
that govern facilitator or mediator conduct in agreement-seeking processes.
A credible process is often either established or undermined in the early stages by
such factors as how and by whom the facilitator is selected, how and by whom the
participants are identified and invited, and how and by whom the process is planned and
structured. Under these conditions, a facilitator for an agreement-seeking process should
be independent of the sponsoring agency.
When an agency engages a facilitator for a public policy dispute, the participants may
not be involved in the selection process because of procurement requirements or because
participants have not yet been identified. Under these circumstances, ground rules can
include procedures to enable participants to review the facilitator’s qualifications, to
evaluate performance, and/or to replace the facilitator at any time during the process if
participants feel that she or he is biased or ineffective.
The selection criteria for facilitators or mediators should be based on experience,
skill, ability, and acceptability to participants, and not solely on costs. Lump sum or
fixed price contracts may not be the best mechanisms for hiring this kind of professional.
Until the assessment is complete and a process designed, it is very difficult to predict
the exact number of hours needed to work with participants toward reaching agreement.
Procurement mechanisms ought to be flexible enough to allocate additional time and funds
as warranted, so as to not slow down or halt the negotiation process.
Contracts should be negotiated and executed before the facilitator begins any work.
Facilitators and sponsoring agencies should assume that all contracts could be read by all
participants without destroying trust on any side. Contracts should assure that the
facilitator has latitude to act independently of the sponsoring agency and should not
constrain his or her ability to communicate with all participants.
The Agency and Participants Should Plan for Implementation of the Agreement from the
Beginning of the Process
There are two aspects of implementation: formal enactment and actual implementation.
Planning for implementation is integral to the process.
Many agreements developed through collaborative processes are in fact a set of
recommendations that need formal adoption. Implementation can be problematic if steps are
not taken from the beginning to ensure linkages between the collaborative process and the
mechanisms for formalizing the agreements reached. The agreement itself should set out
clear steps and stages for implementation: clarifying tasks, resources, deadlines, and
Policies Governing These Processes Should Not Be Overly Prescriptive
Policymakers should resist enacting overly prescriptive laws or rules to govern these
processes. In contrast to traditional processes, consensus-based processes are effective
because of their voluntary, informal and flexible nature.
The kinds of processes encompassed by these recommendations occur within the frame-work
of traditional policymaking practices in a representative democracy. They are adjuncts
to–not replacements for–traditional practices. Collaborative approaches are based on
participants’ willingness to come together voluntarily to explore ways to reconcile
competing and conflicting interests. This kind of exploration is not likely to happen in
an atmosphere where people are required to participate or where their manner of
participation has been narrowly prescribed.
Therefore, when legislation, rules and guidelines are developed concerning these
processes, they should be limited to encouraging the use of collaborative
agreement-seeking processes, and setting broad standards for their use. Overly
prescriptive or burdensome guidelines can act as a disincentive to participation.
These recommendations are intended to help agencies and practitioners conduct more
effective collaborative agreement-seeking processes. They represent an effort to harvest
lessons from the experience of facilitators and mediators over the past two decades and
apply them to the challenges and barriers to success that have been observed. It is hoped
the recommendations will help lay a foundation for widespread adoption of these approaches
by ensuring their quality and integrity.
Agency Checklist for Initial Screening to Determine Whether to Proceed
If the following factors are present, an agency can proceed toward the assessment
Guidelines for Conducting the Assessment and Preparation Phase of an Agreement-Seeking
The sponsoring agency should seek the assistance of a facilitator experienced in public
policy collaborative processes to conduct this phase of the process before initiating
other activities. The following tasks should be accomplished:
Steps 12-15 may occur as part of an organizational meeting of all parties during which
the parties jointly decide to proceed and plan future phases together.
After completing the assessment and preparation phase, resolving any major obstacles to
the process and obtaining the commitment of the sponsoring agency and major stakeholders
to proceed, conditions are appropriate for moving forward.
Formulating Ground Rules for Agreement-Seeking Processes
Ground rules usually address the following issues:
Best Practices for Facilitators or Mediators in Agreement-Seeking Processes
The following guidelines should govern facilitators or mediators as they conduct
Copyright © 1997 by SPIDR. Photocopying portions of this report and its
appendices is encouraged for the purpose of informing users about relevant best practices.
Photocopying portions of this report for any fee-for-service activities requires written
permission from SPIDR.
This article supported the presentation made by the authors to the SCMA Annual Conference on November 5, 2005.A. What Is Intuition? Merriam Webster defines intuition as “quick and ready insight”...By Eleanor Barr, Gene Moscovitch
The use of mediation has grown and evolved over last the thirty years. As the “founders” begin to retire and new voices emerge, what is the future of mediation from...By Kenneth Cloke, Peter Adler