Open Source Negotiation of Public Works
You might recall an earlier post in which I reported the (both expected and astonishing) results of an open source project in which researchers "opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists," resulting in the resolution of one-third of the problems that the research labs had been unable to solve without assistance. See Collaboration Creates Better Science, with a link to the Harvard Working Knowledge article reporting the research.
This morning, thanks to google alerts (all praise google) I found this article about a public dispute over the demolition of a Dallas church that may or may not be entitled to historical monument protection - Judge Orders Mediation in Church Demolition Case.
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A Dallas judge on Friday ordered the Dallas school district and the Old Oak Cliff Conservation League to mediation in their dispute over the proposed demolition of the former Oak Cliff Christian Church building.
The DISD wants to raze the vacant building at 300 E. 10th St. to make way for a new Adamson High School. The league wants to save the 96-year-old structure and is asking a court to block the demolition at least until a review of potential alternatives.
To support his case for saving the church, league attorney John McCall Jr. on Friday projected two pictures of the church for courtroom viewing.
Before ordering mediation, state District Judge Martin Hoffman asked whether a compromise could be reached on the "beautiful old building. ... Is there a way to include this in DISD's plans?"
After conferring briefly with school district representative Lee Simpson, attorney Robert E. Luna told the judge: "The information I have is the building has to be torn down."
And when the judge asked about mediation, Luna again heard from Simpson before replying: "There's nothing here to mediate."
What intrigues me here is not so much the Court's order to mediate or one party's belief that mediation would be a waste of time. What draws my attention are the comments to the story, many of which appear to be well-informed and to contain useful information and reasonable differences of opinion on the either/or choice as well as pointers in the direction of an interest-based resolution.
Some issues, as mediators often hear, are simply not open to compromise. Courts, the media and the public, however, continue to associate negotiated and mediated resolutions as necessarily requiring compromise. Though every person interested in negotiation in the English speaking world has heard the story of the two girls and the single orange so many times that it has become tiresome, I remind my readers once again that when you ask a sufficient number of diagnostic questions underlying supposedly unyielding principles, you find the true needs, interests, desires, and fears that give rise to "principles that cannot be compromised." Once you do that - ascertain the source of people's principles - you can often satisfy all parties without requiring any of them to compromise.
If you're among the handful of people unacquainted with the Getting to Yes orange-splitting story, it goes like this: two girls each want the single orange in the fruit bowl and petition mom for their "right" to have it. Though mom might make a "fair" decision - splitting the orange in half; awarding the orange to the girl who didn't get her way the last time, etc. - she asks a "diagnostic question" to determine whether both girls' interests could be satisfied at the same time.
Sure enough, one girl wants the orange skin for "zest" to make her cake and the other wants to eat the fruit inside. No need for either to compromise.
In the Dallas public debate, the Court - an open public forum - serves its most cherished role of adjudicating disputes in the presence of anyone who wishes to attend (and can fit inside). Cameras have enlarged the potential audience for court proceedings and, of course, the working press reports on its day-to-day operations. Mediation, on the other hand, is conducted in secrecy, a process that is at odds with public decision making in a democracy.
Here we see the extra value added to public decision-making by Internet 2.0 (the public conversation). Anyone with an interest can leave their thoughts on the newspaper's blog, creating the potential for the same type of super-charged "open source" solutions that solved the scientific problems this post opened with.
You own thoughts? particularly about mediated resolutions to public problems.
CEQA already provides substantial opportunity for public comment in these types of situations. The internet of course facilitates public comments. The real problem is that the decision-maker often does not place a lot of weight on the public comments. And oftentimes, the public comments really don't help much in addressing the issue of the feasibility of the alternatives to the project that endangers the historic resource. What is needed is for the decision-maker to step back and tell the interested parties that they have to get in a room together and work out their differences otherwise the approval of the project could be delayed for some time. That is how we saved the Cinerama Dome. That is how the LA Conservancy just recently saved the Century Plaza Hotel. Unfortunately, we did not save the Ambassador Hotel, and the reason was that the judge was in no mood to delay the proceedings, and had no interest in ordering the parties to try to reach a compromise.
Here is the announcement on the Century Plaza Hotel: http://laconservancy.org/centuryplaza/index.php
I was not involved in that one, but I was very involved in the Ambassador Hotel and Cinerama Dome cases. All of these cases underscore the point that mediated solutions to these problems can be found if the developer understands that the project will be delayed unless the developer is compelled to satisfy the preservationists.
Thanks for this interesting post - I need to add something, though, about the use of mediation in settling public disputes. It doesn't necessarily imply secrecy but can serve in tandem with the usual process of democratic decision making. It's my sense that mediation of public disputes probably occurs more often in public than in secrecy. Formal mediation ordered through a court proceeding would be closed, but public agencies also convene dispute resolution processes outside of a litigation context - and these are subject to open meeting laws. Not only do public meetings require public comment periods but many collaborative policy groups seek wider public involvement to keep concerned communities and constituencies well-informed about potential agreements. After consensus is reached, agreements have to undergo further approval or ratification steps. Each of those takes place through a public process that has its own requirements for citizen review and comment. Even agreements reached under a court's guidance often require public appropriations for implementation - or face some sort of public review.
Part of this can be a quibble about what should or should not be encompassed by the term "mediation." But whatever term is used, there's a lot of public policy dispute resolution taking place in public.
John