Public disputes are controversies which affect members of the public and almost always involve one or more levels of government.[i]They often relate to the implementation or execution of a new policy or project by the government, and sometimes to the policy itself. They are in the nature of distributional disputes, which do not focus on legal rights, but rather on the allocation of funds, the setting of standards, siting of facilities, distribution of land and water resources, etc.[ii]These disputes almost always follow paths which inevitably end at the doors of a courtroom. However, a strong case can be made for the use of consensual dispute resolution (CDR) in resolving these disputes, without any lasting mistrust or animosity. Use of ad-hoc CDR processes (customized as per the exigencies of an individual case) in resolving public disputes can be pitched on two grounds- 1) Litigation merely puts an end to the dispute, but does not resolve the underlying distributional conflicts and animosity; and 2) Public disputes should never be regarded as a ‘winner takes all’ game and parties are better served by working out a cooperative solution. After all, what an angry public most wants is to be heard.[iii]
CDR in public disputes is advisable where the disputes are not rigidly based on ideology, where the interested parties and issues are both easily identifiable and where time is not too much of a constraint. However, a prolonged negotiation cannot be sustained in the case of a public dispute. The biggest challenge lies in bringing the parties to the metaphorical table. The task becomes easier where there is reasonable uncertainty regarding the outcome of litigation and the disputants are interdependent on each other in terms of resources, information and behaviour.[iv]Initiation of CDR can also be achieved through the use of emissaries and brokers, or by directly approaching the opposite parties in order to assess the conflicts and the prospects for a successful negotiation.[v]Acknowledging the other side’s interests is also important. A ‘mutual gains’ approach has been advocated to keep the parties at the negotiation table after the commencement of CDR. The six key elements of this approach are as follows- 1) encouraging the other side’s concerns, 2) encouraging joint fact finding, 3) offering contingent commitments, 4) accepting responsibility, 5) acting in a trustworthy fashion and 6) focusing on the long-term relationship.[vi]
The parties to a public dispute are usually the agitated section of citizens, government or administrative agencies and business organizations, if any, which have a stake in the outcome of the dispute. Goodwill is increased if a sincere effort is made to ensure that no interested party is omitted or left behind in the CDR process. CDR can either take place through unassisted negotiation or mediation by an intermediary such as a facilitator or a mediator. Where an intermediary is employed, it is desirable that he/she is trusted by all the opposing groups and is believed to be impartial. However, it is not necessary in all cases that the intermediary should be a person wholly unconnected to the public dispute. An additional requirement, and a very important one in the case of a public dispute, is that the intermediary should have some measure of technical and specialized knowledge concerning the subject-matter of the dispute. The reason for this is that once the parties have laid down the ground rules for negotiation and actually commenced CDR, they need to be educated regarding the realities of the situation which has given rise to the conflict from all perspectives- scientific, economic, political, cultural and even practical. This would lay the foundation for the parties to embark on an informed process of formulating feasible solutions to their conflicts. It would also clear up any misconceptions, of which there are bound to be plenty in any public dispute, owing to the backstage manoeuvres of political players and uninhibited media coverage.
One concern which is frequently raised in relation to the use of CDR in public disputes is the perceived inequality of bargaining power between the government and the opposing parties. However, this concern ignores the basic premise that for any negotiation between parties to be sustainable, it has to be underlined by an element of good faith. If the government comes to the bargaining table intent on pushing through its own agenda, the purpose will never be served. Considering that the whole idea behind consensual resolution in public disputes is to avoid creation of discontent and ill will among the agitated public, and to improve public relations, the government would be better served by not playing the upper hand. Moreover, a government which tries to suppress the voices of its people will inevitably pay the price in the next elections. One way to legitimize the negotiation process is an honest acknowledgement of the concerns of the opposite party. This could even help in avoiding large concessions later.[vii]The effect of political power can also be tempered through coalitions, effective persuasion backed by solid information and ideas and the presence of a neutral intermediary.[viii]Further, involving parties in developing solutions helps ensure their ownership and acceptance of the solution, as opposed to a solution imposed by a key decision maker. The only solution to a spiral of unmanaged public conflict is the application of a ‘rational process’ for the satisfaction of the community.[ix]
Compliance with negotiated agreements can be ensured by keeping the public regularly updated on the progress of the CDR process as well as its ultimate outcome. Any agreement arising out of the process can be converted into formal agreements in the nature of legislative action or administrative orders; deadlines can be set and monitoring groups appointed to ensure compliance.[x]Contingent commitments can also be made for future adjustments in the negotiated agreement depending on the achievement of certain benchmarks or the exigencies of the situation. Voluntary compliance of both the administration and the public with the negotiated agreement will also facilitate a similar amicable resolution of future public disputes.
Consensual resolution of public disputes should be promoted as such a process goes beyond the legal dimensions of a dispute. Even if the process does not produce a settlement, the administration can obtain a better sense of the conflicts and issues which are to be resolved. Adversarial processes in the first instance will not bring about cooperation and joint problem solving. The mere fact that the government came to the negotiating table will broker a sense of satisfaction and goodwill among the public. CDR also saves time, along with monetary and human resources. Moreover, the parties do not make any reservations regarding their legal rights and are free to terminate the process and approach the courts at any point of time if they feel that the process is unlikely to be taken to a successful conclusion. If nothing else, it is worth a shot!
[i]Managing public disputes: A practical guide for government, business and citizens’ groups, Susan L. Carpenter and W.J.D. Kennedy, Jossey-Bass, 2001.
[ii]Breaking the impasse: Consensual approaches to resolving public disputes, Lawrence Susskind & Jeffrey Cruikshank, The MIT Harvard Public Disputes Program, 1989.
[iii]Conflict management skills when dealing with an angry public, PON Daily Blog, May 28, 2019, available at https://www.pon.harvard.edu/daily/conflict-resolution/dealing-with-an-angry-public-3/.
[iv]Using a mediator in public disputes, John B. Stephens, Public management bulletin number 2, September 1998, available at https://www.mediate.com/articles/stephensJ.cfm.
[v]Getting to the table: Creating the forum for negotiations in deep-rooted conflicts, James H. Laue, Sociological practice Volume 10 Issue 1 Article 13, 1992, available at https://core.ac.uk/download/pdf/56685163.pdf.
[vi]Dealing with an angry public: The mutual gains approach to resolving public disputes, Lawrence Susskind and Patrick Field, Free Press, 2010.
[viii]Mediating Public Disputes: A response to the sceptics, Lawrence E. Susskind, 1 NEGOT. J. 117 (1985), available at https://heinonline.org/HOL/Page?handle=hein.journals/nejo1&collection=journals&id=116&startid=&endid=119.