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Index

CONSENSUS PROCESSES

WHEN TO USE A
CONSENSUS PROCESS

CONSENSUS PROCESSES

What is a consensus process and how does it differ from other methods of engaging the public? It is important to understand what differentiates consultation from consensus and what enables diverse interests to move from conflict to collaboration.

A consensus process is an effort in which government agencies and other affected parties seek to reach agreement on a course of action to address an issue or set of related issues. In a consensus process, representatives of all necessary interests with a stake in an issue work together to find a mutually acceptable solution. Each process differs because in each case the parties design it to fit their circumstances. However, successful consensus processes follow several guiding principles:

Consensus decision making-Participants make decisions by agreement rather than by majority vote.

Inclusiveness-All necessary interests are represented or, at a minimum, approve of the discussions.

Accountability-Participants usually represent stakeholder groups or interests. They are accountable both to their constituents and to the process.

Facilitation-An impartial facilitator accountable to all participants manages the process, ensures that ground rules are followed, and helps maintain a productive climate for communication and problem solving.

Flexibility-Participants design a process and address the issues in a manner they
determine most suitable to the situation.

Shared control-Participants share responsibility for setting the ground rules for a process and for creating outcomes.

Commitment to implementation-The sponsor and all stakeholder groups commit to carrying out their agreement.

Stages of a consensus process
A consensus process moves through three stages, each with its own set of activities.
· Before-Assess whether or not to initiate a consensus process and how to bring diverse interests to the table, then work with a facilitator to plan and organize the process and write ground rules (Chapters 4 through 8 cover these stages.)
· During-Engage in the problem solving discussions: exchange information, frame issues, conduct the discussions, generate and evaluate options, develop mutually acceptable solutions, and secure the endorsement of all constituencies and authorized decision makers. (This stage is described in Chapter 9.)
· After-Implementing the agreement: formalize the decision, carry it out, and monitor the results. (Chapter 10 covers this final stage of the process.)

What is consensus?
A practical definition for consensus in the public policy setting is:
· The parties have reached a meeting of the minds sufficient to make a decision and carry it out;
· No one who could block or obstruct the decision or its implementation will exercise that power;
· Everyone needed to support the decision and put it into effect will do so.

This definition does not mean unanimity of thought or abandonment of values. Indeed, one of the characteristics of a well constructed agreement is that it represents diverse values and interests. Given the mixture of issues and values in public conflict, the resulting agreement often is a package with varying levels of enthusiasm and support for different components, but on balance one that each party or stakeholder can accept.

In a consensus process, the parties or stakeholders must define consensus for themselves and include their definition in the ground rules. Most definitions imply acceptance, an acknowledgment that things can move forward, that people support a decision, or at least can live with it. Even if only most participants like the decision, at least all of them are willing to accept it.

Other names for consensus processes
Consensus processes as an explicit way of making public decisions have been developing during the past three decades. The number of cases, consultants assisting them, and academics studying them has grown exponentially and produced a variety of labels. Some arose out of land use planning, others out of labor-management mediation or community dispute resolution programs, and still others out of management and organizational development. A number of these labels, as printed in the Best Practices Report, are listed in the table here.

Some of these terms refer to the use of consensus in a specific context, such as negotiated rule making and environmental mediation. Others are more general. One term not on the list, alternative dispute resolution or ADR, usually refers to the use of mediation within the legal and judicial systems. Participants in a consensus process often refer to it by some name they associate with the problem they are addressing, rather than a generic label about process. For example, people working to clean up a polluted harbor in Massachusetts called their effort the New Bedford Harbor Community Forum. Participants in a Colorado effort to prevent the spread of HIV called their group Coloradans Working Together: Preventing HIV/AIDS, which came to be known as CWT.

What Is collaboration?
To collaborate means to work together. A number of recently published books discuss this new era of collaboration in government and business and explain how to build collaborative working relationships (see bibliography). Generally, collaboration includes:
· A shared purpose-collaborators work together to achieve a common objective.
· A shared need-accomplishing the objective requires a combination of skills, resources and ideas that one party alone does not have.
· Authentic conversations-people must be able to speak frankly and listen carefully.
· Reciprocity-cooperative give-and-take enables a group to negotiate effectively.

How are consensus and collaboration related?
Working together is a consistent theme in many labels for consensus processes. "Joint," "shared," "cooperative," and "collaborative" all stress the importance of recognizing one another's needs, interests, and concerns. Here, we emphasize consensus because that is how decisions are made. However, these processes are also called collaborative because people do not achieve consensus without working together.

During a consensus process, collaboration often develops slowly. Parties begin their collaborating by planning and organizing. Their mutual acceptance of a set of protocols or ground rules can be an important milestone toward working together. When participants move on to the actual issues, their interaction may be adversarial at times and collaborative at other times. Often a shift occurs when people physically move to the same side of the table, to work together on a specific problem or to develop options or proposals. Once the parties reach agreement, they may collaborate on supporting the agreement through the public review process. This may include meeting with the public or briefing the media to explain their reasoning, or testifying at legislative committees. During implementation, they may collaborate on monitoring committees or other bodies established to help carry out the agreement.

Why use a consensus process?
For a government agency, department, or official who is charged with solving a complex issue, a consensus process may make sense for several reasons:

An issue is not getting addressed and the costs of indecision and uncertainty are mounting for everyone. The agency and other parties may need to work together to break such a stalemate. No concerned party, not even a government department with solo jurisdiction, can accomplish its objectives by acting alone. Even if the department makes a decision, the conflict may simply move to another forum (such as a court or political body) and escalate. When parties can agree on an outcome, the department's decision will be final and the parties can then direct their resources toward implementation.

Decision makers in other forums may not address the real issues. In Oregon, for example, the land-use appeals system has many cases remanded for procedural issues that bear little relationship to the interests of government agencies and citizens. The striking advantage of consensus processes is the ability to look at the key issues to find solutions rather than fault.

The department could make an unpopular decision and no one would follow it. Because of the nature of certain problems, decisions can be unenforceable unless people comply voluntarily. Consensus outcomes can build the broad support necessary to carry out actions that would otherwise be difficult to enforce.

The parties may need each other's continued cooperation. With some issues a governmental decision is merely the start. Turning talk into action requires the ongoing cooperation of other agencies, levels of government, and interest groups. A consensus process can build public support, working relationships, and commitments necessary for ongoing collaboration-and for obtaining the funding to implement the agreement.

Consensus agreements can result in better solutions. Parties outside of state government may have knowledge and perspectives that could help bring about more effective solutions. Regulated industries, for example, might think of ways to address a problem more efficiently if they engage in crafting the solution rather than strategize about how to challenge it. Parties who expect to be harmed by a proposed development might think of ways to protect their interests that would not have occurred to others.

Consensus processes can shorten the list of disagreements or clarify issues for decision makers. In many cases, parties have defined or narrowed their issues, even though they have been unable to reach an agreement.

Consensus processes can enhance the sense of fairness and equity in the decision making process. Government agencies and other parties can spend considerable time learning about and trying to meet the concerns and needs of all interests. A consensus process based on identifying and addressing these interests may lead to a more equitable solution and an acknowledgment that all parties had a fair opportunity to influence the outcome.

Focusing on interests is a key to consensus
Interest-based negotiation is one of the keys to consensus processes. When people collaborate using this approach, they identify and frame issues, study them, generate options to address them, and select and package the options in ways that meet the interests of the diverse parties. In interest-based negotiation, an effective negotiator discovers why a person or group wants something, rather than what their positions are. A classic illustration of this point is the mother whose two children are arguing over the last orange in the house. The mother takes the orange, cuts it in two and hands a half to each child. She watches one child eat the fruit and throw away the rind, and the other grate the rind for cupcake icing and throw away the fruit. Seeing this, the mother realizes if she had asked the children why they wanted the orange, she could found a solution that satisfied them both.

By communicating and sharing information in ways that develop a shared framework of understanding, participants can work toward mutually acceptable solutions that meet their individual needs and interests.

Other ways to engage the public
Government officials are increasingly turning to the public to help them make better decisions. In addition to consensus processes, two other methods that are frequently employed are communication and consultation.

Communication-All public involvement includes some strategy for communicating about the issues. Most strategies focus first on gathering or exchanging information. Information exchange refers to processes in which agencies meet with various parties to give or obtain information or to clarify issues. Exchanging information can help a department or agency improve communication and understand and clarify problems and issues. For example, a government agency may ask various parties for their views about a problem or issue, how it affects them, or ways the problem or issue could be addressed before formulating action plans. This is usually done through meetings with individuals or groups. The information gathered can then be conveyed to the public through the available communication channels.

Consultation-Public officials consult the public to get advise. They solicit comments and appoint citizens to committees. Consultation includes onetime events, such as public hearings, as well as ongoing groups such as task forces, citizen review boards, and advisory committees. Consultative processes are interactive activities that can produce recommendations from the public for government officials to consider before making a decision.

How consensus processes differ from consultation
The most significant differences between consultation and consensus processes are how decisions are made and what happens to the product of the discussions. In a consensus process, the parties share decision making about both process and outcome. By contrast, in a consultative process the sponsoring agency decides whether to initiate a process and how it will be organized. In a consensus process, the product of the discussions gets translated into official decisions, while in a consultative process the agency formulates the decisions. In both approaches the agency retains final decision making authority, but in a consensus process the agency puts the product of a consensus process out for official review as the proposed decision. In consultation, the agency receives input from the participants, then staff members formulate the proposed decision.

Because stakeholders and government officials together are the decision makers in a consensus process, participants must try to educate and persuade one another about their needs and interests. They must also listen carefully to determine how the solution can meet the needs of the other parties. Majority voting induces a different kind of interaction than does consensus decision making. When participants know they can revert to a majority vote if they cannot agree, they may focus more on building coalitions for such a possibility rather than trying to meet all the parties' needs.

Sometimes because of legal requirements, sponsoring agencies refer to a process as "consultative" or "advisory," even when the intent is to agree with stakeholders on an outcome. Federal agencies that sponsor regulatory negotiations must charter the process as an advisory committee under the provisions of the Federal Advisory Committee Act. A legislature or administrative policy making body that authorizes a consensus process may designate the group as advisory in order to make it clear that the formal decision will still be made by government officials.

Again, the most important distinctions among these processes are how decisions are made and what happens to the outcome. If a sponsoring agency treats the committee's final agreement as advice and picks and chooses parts to include in the official decision, the process is consultative. If it participates along with other parties in formulating the agreement, then accepts it as a package consisting of trade-offs that cannot be detached (and is committed to implementing the package), then the process is consensual. According to the authors of Building Consensus for a Sustainable Future, who first pointed out this distinction, "Consultation is designed to inform decision makers who will ultimately make the decision. Consensus involves the participants as decision makers... . In a consensus process, the participants must address and persuade one another and find solutions acceptable to all."

WHEN TO USE A CONSENSUS PROCESS

When is a consensus process more likely to be appropriate?
Most issues are in some sense negotiable-at some time. Public issues are dynamic and usually have more potential for agreement than the parties may perceive. A consensus process is more likely to be appropriate when:
· The issues are negotiable, of high priority, and do not focus primarily on constitutional rights or fundamental values.
· The interests are known and organized well enough so that spokespersons can represent them.
· There is a relative balance of power. No one party can get what it wants on its own. The parties recognize that because each could block a decision from being made, they need one another's support, or in some cases acquiescence, for action to be taken. This uncertainty, combined with the appeal of having a direct role in the decision making process, can make a consensus process look attractive.
· A sponsor may have the authority, but not the power, to make an effective decision. It would rather try to reach an acceptable solution with contending parties than make a decision and have to defend it in another government forum, where other officials could change it.
· There are enough resources to support a consensus process. The sponsor can afford the staff time and the cost of hiring a facilitator and technical experts.
· Political leaders support both the process and the timing with regard to elections or other political events.
· Relevant laws allow enough latitude for the parties to negotiate an agreement.

When is a consensus process less likely to be appropriate?
A consensus process is not likely to succeed or be appropriate when:
· The interests are too diffuse to be identified and negotiations could substantially affect people who cannot be represented.
· The range of potential solutions is too limited; some mandates may prescribe solutions that are too narrow for negotiation.
· The situation is an emergency and there is not enough time for consensus building (bearing in mind, however, that a sense of urgency can sometimes bring about efficient negotiations).
· One party may have sufficient power to get the solution it wants without having to negotiate; it has a better alternative to a negotiated agreement. However, parties can sometimes be overconfident about their chances before a judge or other government decision maker and incorrectly assume they will prevail.
· One or more parties may frame the issue as a matter of rights to be decided by the courts, rather than through a process of give and take. Or they may believe a fundamental principle is at stake, one they believe would be compromised if they were to participate.
· There may be a need for a court to clarify a legal question or set a precedent.
· Some stakeholders may want to appear open but have no interest in cooperating. They may believe that reaching consensus is impossible but want to avoid being blamed for failing to try. They may also conclude that attending meetings is an acceptable price to pay for good public relations-and for staying on good terms with public officials they work with on other matters.
· A party may seek delay and hope that a consensus process will bog things down.
· The level of concern about the issue is not great enough for people to be willing to commit their time and energy to participate.
· Not all governments or agencies with decision making authority will commit to implementing an agreement (if one is reached) that satisfies the mandates.

Concerns about the use of consensus processes
Agency officials, as well as citizens, often raise questions about the legitimacy and effectiveness of consensus processes. Issues about legitimacy often have to do with whether consensus decision making is an abdication of government authority, how it affects the public's ability to have input, and whether there are adequate resources to conduct a process. Issues about effectiveness also have to do with one party's ability to block an outcome, and the quality of the outcomes produced. Below are responses to some of the most commonly expressed concerns.

Concerns about legitimacy
Issues about legitimacy have to do with:
· How government agencies can share control over the process and outcome while retaining their mandates
· The effect of consensus processes on prescribed public review and comment procedures
· Deciding who participates

Complying with government mandates-Legislative bodies pass statutes charging agencies or departments with achieving certain public goals and objectives. An agency must not exceed the authority conferred on it by statute. It must correctly interpret and apply the law and pertinent regulations. In addition, it must follow prescribed decision making procedures, decide all issues it is required to address, support the decision by evidence and reasoning, and not delegate its authority to a private group.

To comply with these requirements during a consensus process, agency representatives should explain the basis for their decision to employ a consensus process, then confirm that all parties agree on that interpretation and, during the process, inform participants when options being considered exceed the agency's authority and responsibilities. Officials should describe to all parties the formal decision making procedures they are required to follow.

Opportunities for public review and comment-Most products of consensus processes require public comment regardless of how a proposed decision was reached. Often, when all interested parties have participated in the process and are satisfied with the outcome, traditional opportunities for public comment are pro forma-all essential concerns have been addressed in the agreement. But sometimes there are stakeholders who were not represented in the process, either because no one realized they would be affected or, more likely, because they learned late about the agreement and are concerned that it will adversely affect them. This occurred in the case of a harbor cleanup in New Bedford, Mass., when a plan to clean up the harbor identified sites for disposing of contaminated sediments, and neighbors of those sites objected.

It may also be the case that a constituency who accepts an agreement may have dissenting members who want a forum in which they can express their objections directly to public officials. An agreement reached by a representative of a constituency does not necessarily satisfy all members of that constituency. If critics raise significant issues, the sponsoring agency or other stakeholders may want to reconvene to consider modifying the agreement.

Deciding who gets to participate-The parties themselves should agree on the interests that must be represented, then those involved in each interest should select their own representatives. This is essential to building commitment and ownership of a process. If the interests are too diffuse to be identified or cannot be organized for meaningful representation, a process that depends on representatives negotiating a consensus agreement is, by definition, inappropriate.

Concerns about effectiveness
Concerns about effectiveness have to do with:
· Limited resources and expectations
· A minority's ability to veto a majority view
· Watered down results

Limited resources-Many government agencies struggle to meet high expectations with inadequate resources. The costs of conducting consensus processes can be time consuming and expensive. The agency and other stakeholders must be realistic about these expenses, while also weighing them against the potential costs of continued conflict or inaction.

Sponsoring a consensus process for one issue can divert resources from other deserving problems, tempting agencies to cut costs by skipping steps, especially at the beginning of a process. Those first steps, however, are the most crucial for achieving consensus. Agencies sometimes spend a great deal of time deciding internally whether to conduct a consensus process, then try to get back on schedule by abbreviating the crucial step of assessing the situation with other stakeholders. Skipping the assessment is a proven method of reducing the chances of success. (See Chapter 4 on assessing prospects for consensus and Chapter 7 on identifying and meeting resource needs.)

Watered-down compromise-Because parties have different needs and interests that must be satisfied, participants must invent solutions that integrate different perspectives. Rather than resulting in the lowest common denominator, this can elicit creative solutions that no one had contemplated before. Parties concerned about producing an ineffective outcome can take preventive measures at various steps in the process. Before negotiating, they should be asked to explore their willingness to try to devise effective solutions. Their ground rules can specify interim points for checking to see whether sufficient progress is being made to continue. Finally, any party can veto an outcome that it does not think is acceptable. (See Chapter 8 for more about ground rules.)

Veto by minority-This ability of one party to block a consensus is sited by some as a flaw of consensus processes. Ground rules should explain how decisions will be made if parties cannot agree. They may, for example, stipulate that the agency will make the decision after the traditional public review procedures. They may also specify whether the agency, when formulating the decision, can incorporate any progress made before the talks ended. Parties dissatisfied with the agency decision can then appeal it.

What if a consensus process is not appropriate?
If the situation does not seem appropriate for consensus, sponsors have several options:
Use an alternative process-Consider other approaches, such as consultation, that may be more appropriate for the issue. By using consultation, sponsors can elicit valuable insight from the affected parties while retaining decision making control. The downside of consultative processes is that the participants may have less support for the final decision because they have not played as active a role in crafting it.

Address the reasons why consensus is not appropriate and change the situation so it might work-Addressing the reasons consensus is not practical may alter the conditions to make it appropriate. For example, if a consensus approach is not recommended because the negotiations may affect people who could not be represented, it may be useful to brainstorm with various groups on how to achieve that representation or find a way to assist a group to get organized. It also may be possible to change the incentives to participate, as was done in the Delaware case when the governor announced his intent to establish regulations with or without stakeholder participation. Additionally, the scope of the discussions can be enlarged to incorporate issues over which the parties are interested in negotiating.

Do nothing and wait-The timing may not be right or the level of concern not great enough for people to commit their time and energy. Circumstances may eventually change so that the issue becomes more of a priority. Or the conflict may need to continue until some parties are organized enough to participate effectively or even to be taken seriously.