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Getting past gridlock.

Using a neutral "facilitator" to guide adversaries toward consensus can sometimes solve the knottiest legislative problems.

Nursing home expenses in Ohio were staggering. The state ranked fourth in spending for institutional long-term care. A full 43 percent of Medicaid costs - the largest line item in the state budget - went to nursing homes. Acknowledging the need to solve such a costly issue - and having failed in previous attempts - the legislature and the governor created a Medicaid Long-Term Care Reimbursement Committee and tried something different. They used a "facilitated consensus process" to bring state agencies and nursing homes together to agree on a system to pay for long-term care. Today, Ohio has a plan in place that provides for the nursing care of its elderly and that saves the state some $150 million per biennium.

In Virginia, surface water management was an intractable issue. So the Virginia Water Commission decided to put a new twist on discussions about fishing, boating, wildlife habitat, navigation and waste assimilation. It hired a facilitator to conduct a series of meetings that went so successfully that legislation was finally developed and the Chesapeake Bay Preservation Act and the Hazardous Waste Siting Act were adopted by the legislature.

Like a lot of states, Nebraska's workers' compensation system was costly and discussions on how to reform it were contentious. But when representatives of labor and business sat down together in series of facilitated consensus meetings, the reforms they came up with won legislative approval by a substantial margin.

A new constitutional article set the stage in 1976 for consolidating North Dakota's trial courts. Because of a declining population, leaders recognized the need to reduce the number of judges and merge two levels of trial courts. Over the next 15 years, plans were suggested and rejected. Finally, legislative leaders encouraged a consensus process on the issue. The resulting legislation unified and reduced the number of courts. A single general jurisdiction trial court was established last January, and a plan was made to reduce the number of judges by 20 percent over the next decade.

Difficult legislative issues like these often involve many interests and views on highly technical subjects. When formal hearings do not build agreement and issues are not resolved, problems tend to fester, relationships deteriorate and the issues return, session after session, without resolution. In these circumstances legislators may need additional ways to reach agreement.

A new tool that supplements traditional lawmaking, the "facilitated consensus process," is sparking interest among some legislative leaders.

Q: What is it?

A: A facilitated consensus process is one in which everyone involved in an issue works to resolve it or set a direction for future policy. Because a neutral facilitator and staff assist the process, the participants are free to focus on the issues.

Each process is "customized" to meet the particular circumstances and needs of the issue.

It's a forum to identify the concerns of all parties and address as many of them as possible. Although the agreement might not satisfy everyone equally, and everyone might not support every part of it, each participant can commit to the agreement as a workable solution.

Q: What are the advantages?

A: Getting past gridlock is difficult, but the result may be well worth the effort in money, time, relationships and better policy.

* Money saved. Sometimes the resolution of a serious problem saves money. In the case of Ohio, the cost of a facilitated consensus process was small compared with the $150 million savings. Legislators can make an investment in solving difficult issues.

* Time saved. Issues that return for legislative action again and again without sufficient resolution are a waste of lawmakers' time. Facilitated consensus building requires time, but an agreement that lasts will ultimately save both time and tempers.

* Better relationships. The focus on collaboration and mutual gains can strengthen understanding, making it easier for people to work out differences and avoid future problems. The process contributes to improved working relationships among the participants on other legislative issues. The experience provides people with a cooperative history that they can apply to other difficult issues. And it's good PR for the legislative institution.

* Better solutions. Because many people may be involved, relationships and policy options sometimes develop slowly. However, the process often arrives at a novel agreement, beyond what anyone initially thought might result.

* More information. In consensus discussions more information is brought to bear on policy development including possible consequences of various options. Sometimes the participants work together after reaching an agreement to resolve unanticipated problems with implementation.

* Citizen support. There may be other criteria, not as easy to measure, to evaluate consensus procedures and the resulting agreements. These may include a higher level of public confidence in the legislative process and a more productive legislature.

Q: Why use it?

A: Legislators say they turned to facilitated consensus processes because:

* Communication among the parties was at an impasse, yet something needed to happen.

* Solutions could not be found using traditional methods.

* The issue was chronic and had gone without resolution through several legislative sessions.

* Legislators didn't have the time to sufficiently manage the issue, but it needed to be addressed right away.

* The issues were so complex that it was impossible to develop useful new proposals in the time available.

* The heavy influence of particular interest groups made it difficult to work out agreement.

Consensus techniques are appropriate for many issues. They are most appropriate if an issue is complex, many parties are involved, no one agency or organization has complete jurisdiction over solutions, the issues are negotiable and those involved are willing to participate. The process won't work if relevant information is not available, if unreasonable time constraints or deadlines exist, if those involved are unwilling to participate, or if there is not broad public concern about a solution.

Q: Do legislators abdicate their authority to set policy when they use a facilitator?

A: No. Legislators are free to accept, modify or reject proposals that result from a facilitated consensus process.

Q: What's most important for a successful outcome?

A: Legislative leaders need to agree that it would be difficult to come to agreement in the traditional legislative process, and that the issue must be resolved. It helps if the governor agrees.

It's also important that participants know about the issue and its problems and are willing to invest the time necessary to make it work.

Q: How can legislators start the process?

A: There are a number of ways to start the process. For example, lawmakers might pass legislation that establishes the forum, identifies those affected and encourages or requires them to participate, and sets a deadline for resolution of the issue.

An alternative is for legislative leaders or a legislative agency to agree informally to start the process. Individual members also can initiate the process informally by inviting those involved to discuss the issue, finding a facilitator and participating as an adviser or liaison.

No matter how a process is started, consultation by the convening legislators with legislative leaders removes potential misunderstanding and improves the chance of success.

Q: What happens during the negotiations?

A: At the start, a facilitator calls the stakeholders together and creates and maintains a fair environment for their discussions. The participants agree on the ground rules.

The talks start with everyone clarifying their basic interests. Then they identify overlapping interests and discuss options to meet the underlying interests. They identify elements of agreement, document them and develop ways to implement that agreement.

As a result, the participants are able to develop mutual understanding and reach lasting agreement. They can establish relationships for carrying out the agreement after it goes through the traditional legislative process.

Q: What does the facilitator do?

A: The facilitator helps participants create and carry out an agenda for the discussion, keeps the process on track, suggests ways to promote communication, and makes sure that all participants share in resolving the issues.

The facilitator helps participants understand sources of disagreement, clarify the issues and search for common ground. As a neutral third party, the facilitator does not express substantive views on the subject and cannot impose a solution.

Q: Who participates?

A: Everyone who has a stake in the issue. They might be people representing the interests of those who have testified on the issue in prior legislative hearings.

It is essential that each participant has authority to confirm an agreement on behalf of the interests he or she represents. Participants should keep constituencies informed about discussions and the options being considered.

Q: How are legislators involved?

A: Lawmakers can participate by getting the process started, as consultants when needed, as participants on behalf of an identified constituency or as guarantors that agreements will be considered in the legislative process. Legislators can serve in one or more of these roles.

Q: What's the role of legislative staff?

A: Legislative leaders may assign staff to the process. Staff members can provide essential resources, record the emerging agreement and translate the principles of the agreement into legislation.

They also can serve as liaisons with key legislators and provide clear feedback to participants about the practicality and effectiveness of the agreements being developed.

Q: What about the news media?

A: Like all legislative processes, facilitated consensus processes that involve government must comply with open meeting and records laws.

Reporters covering legislatures often concentrate on the clash of competing points of view, rather than on the process of building agreements. It is always good to offer periodic meetings to help interested reporters cover the story.

The participants can adopt ground rules that cover media relations.

Q: What about the timing?

A: Consensus building can be used as a regular part of the legislative session or during the interim. On one hand, legislative leaders might decide at the beginning of the session what issues are candidates for facilitated consensus. On the other hand, it might be near the end of the session - after other attempts at resolving some issues have failed - that it is decided to use a facilitated consensus process during the interim.

Leaders and stakeholders must recognize the need for sufficient time to build agreements that last. The amount of patience, time and participation that is required is proportionate to the difficulty of the issue. Participants need time to listen to each other, identify common information, loosen entrenched positions and identify overlapping interests.

Using facilitated consensus methods to help solve a legislative issue is an example of dispute resolution techniques applied in creative ways to solve problems. These processes ensure that the people affected are involved from the start in identifying and assessing issues and priorities, sharing different perspectives, and building lasting agreements that they can live with.

Legislators are always looking for new tools to resolve difficult issues in ways that respond to citizens' needs. The successes in some states can be useful models to other legislatures trying to come to grips with gridlock.

In the words of former North Dakota Senator Jim Maxson, "A consensus approach provides a great substitute for gridlock. It can make a legislator's life much easier."

RELATED ARTICLE: What do Legislators Say?

"Sometimes the issues we face are so complex, the interests so divergent and the pressure on our time so overwhelming that we turn to a facilitator for help. Their skill and patience can help us to come to a successful resolution."

- Representative Jane Campbell, Ohio

"I believe the facilitators and research people play a major role in the agreement process. Not because they dominate the proceedings, but because they are able to prod us and assist us when we need help, rather than let us get bogged down over some minor issue and let that interfere with the main objective."

- former Senator Orlin Hanson, North Dakota

"The consensus process gave us the key to a long-term solution that was implemented without a big political hitch."

- former Senator James Maxson, North Dakota

"Facilitation is especially useful during the priority setting stage of the legislative session, whether that occurs before or early in the session."

- former Senator Jean Lloyd-Jones, Iowa

"As a committee chair, use of a consensus-building process allowed me to tackle a big issue without tying up all my time."

- Senator Grace Drake, Ohio


The seven key steps for starting a facilitated consensus process are:

* Determine the issue's readiness.

* Find a facilitator.

* Identify the goal.

* State the time frame.

* Identify the participants.

* Identify staff resources.

* Consult with legislative leaders.

RELATED ARTICLE: Guidelines for Participants

All participants must be prepared to:

* Participate in good faith.

* Take responsibility for expressing their views.

* Openly share information and expertise.

* Make proposals in addition to responding to the proposals of others.

* Look for ways to reconcile differences.

* Communicate information with their constituencies and gain clear authority to make agreements.

RELATED ARTICLE: Where to Find Facilitators

* Legislative councils can create their own pool of facilitators that include legislative staff and other legislators.

* The National Institute for Dispute Resolution (NIDR), 1726 M St., NW, Washington, D.C. 20036-4502, (202) 466-4764, ext. 312, provides a national clearinghouse.

* Seventeen states have offices that promote the use of conflict mediation and collaborative problem-solving approaches in state government. These offices are a source of information and referral for facilitators. They are organized as the National Council for State Dispute Resolution Programs.

* Private practitioners, mediators and facilitators specialize in public policy dispute resolution. Names of facilitators can be obtained from the Environment and Public Disputes Sector of the Society of Professionals in Dispute Resolution (SPIDR), 815 15th St., NW, Suite 530, Washington, D.C. 20005, (202) 783-7277 and the International Association of Public Participation Practitioners, (IAP3), P.O. Box 82317, Portland, Ore. 97282, 1-800-644-4273.

* Many universities have faculty skilled in this work. Contact the dean of the law school, business school or school of public administration for suggestions.

Christine Carlson is executive director of the Ohio Commission on Dispute Resolution and Conflict Management, Columbus, Ohio. Larry Spears is executive director of the North Dakota Consensus Council Inc., Bismarck, N.D.
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Author:Spears, Larry
Publication:State Legislatures
Date:Jan 1, 1996
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