Mediation can help create consensus on a public-policy issues

Can government be run more like a business?  If so, could the legislature, local government officials and regulators produce a better product, in less time and with less stress and expense?  Perhaps, but not by relying solely on current procedures.  Rather Virginia’s elected officials should more frequently incorporate a supplemental process that resolves conflict and embraces consensus.  Let me explain.

The legislative route by nature is deliberative.  As befits a conservative view that the government that governs best, governs least, the path to passage of any bill contains many hurdles.  Every subcommittee, committee and floor vote is an opportunity to kill a bill.  If it survives that gauntlet, the governor can veto the bill or propose amendments, which legislators can accept or reject.  Needless to say the system our founders established, with all good intentions, can be slow, expensive and often frustrating.

If legislation is viewed as a response to a problem, this problem-solving process needs repair.

There are a number of reasons. Legislators are part-time, citizen legislators and are not well paid for the amount of time expended in the job.  Budgets have two-year horizons, making long-range planning difficult. Resources for studying complex issues are limited, and the volume of legislation considered in a 60- or 45-day session is voluminous. Businesspeople would never create such a forum within their businesses.

As but one example, the General Assembly took decades before enacting a new transportation-funding structure in 2013.  It was not for lack of trying; while the delegates and senators were at an impasse, however, our roads and bridges crumbled as drivers fumed over bent wheel rims and traffic congestion.

In the Virginia judicial system, civil litigation also is deliberative by design. Disputes can, and often do, take years to resolve.  Knowing this, litigants increasingly are turning to private-sector mediation because it provides the opportunity for creative settlements at a fraction of the time and cost.  As the number of mediations grows, civil trial dockets are shrinking along with the legal bills.  The court system still is alive and well and available, but it took a supplemental process to address a glaring public need. 

I submit, from personal experience and ample research, that mediation can supplement our legislative process — not replace it — and produce solutions that advance the public good.

At its core, mediation is a facilitated negotiation.  Elected leaders and local, state and executive- branch officials act as conveners to bring stakeholders to the table.  A trained and compensated neutral third party serves as a facilitator.  These professionals employ a process fashioned exclusively to treat issues as problems to be solved by consensus.  Negotiations are geared to satisfy interests rather than compromise adversarial positions.  Stakeholders provide the subject matter expertise.  Once a consensus is reached, it often is submitted as legislation for formal public debate to determine whether the proposed solution is truly in the people’s best interest.

Mediations generally are conducted outside of the time when the House and Senate meet, when the opportunity to delve into complex issues is typically a luxury.  This gives the parties the chance to do the hard work of narrowing issues and closely examining drafts of potential legislation.  Legislators then can focus on the proposed remedy from a strictly public-interest perspective. 

Another major benefit of resolution by consensus is that the stakeholders, no matter their original positions, are invested in the solution and are incentivized to see it implemented wisely.  The potential for obstructionist litigation decreases, thereby avoiding an expensive court fight. 

Mediation is not an entirely novel approach in Virginia. Disputes between local governments and over environmental regulations, zoning laws, business issues and tax policy, as well as differences in the criminal justice arena, all have been successfully mediated.  The Code of Virginia already contains an explicit structure permitting mediation by governmental bodies.  Indeed, Gov. Tim Kaine brought a trained mediator into his senior leadership team to apply these skills to several complex issues.

Virginia is blessed with a number of excellent mediators and mediation programs.  The Virginia Association of Community Conflict Resolution represents nine such efforts across the state.  U.Va. boasts the Institute of Environmental Negotiation while George Mason University has an excellent School for Conflict Analysis and Resolution, and Virginia Commonwealth University recently has established the Virginia Center for Consensus Building at which I serve as executive director.

In Virginia we pride ourselves on the civility of our relationships.  Public-policy mediation builds on that admirable trait.  Our elected officials, at all levels, should, therefore, exercise their power as conveners of stakeholders and enlist them in resolving public-policy disputes through mediation.

If the goal is win-win, not win-lose, there is no better choice.

Mark E. Rubin is executive director of the Virginia Center for Consensus Building at Virginia Commonwealth University.