Mediating public disputes

Abstract

S o many of the decisions that shape our lives are made by government, yet the basic components of our democracy-the legislative, administrative, and judicial machinery-are increasingly ineffective in producing decisions that most of us agree are fair, efficient, and enforceable. The legislative process is too primitive to take account of the scientific and technical intricacies of various public policy choices, too easily manipulated by party members, and not especially well suited to reconciling (as opposed to papering over) conflicting values. The administrative processes of government are susceptible to manipulation by those in power, often without any attention to the merits of competing claims. Administrative processes are also more and more time-consuming and typically sealed off from the scrutiny of all but a few professional lobbyists. The inability of the judiciary to cope effectively with the current flood of cases is well documented. A great many unresolved legislative and administrative conflicts end up in court. We call upon judges and juries to confront complex issues for which they are woefully ill equipped. The courts can do no more than pick winners and losers; they rarely, if ever, reconcile the legitimate claims of parties with conflicting interests. So it is not surprising that disputes are not resolved. They are settled temporarily, only to appear again in another guise. The basic resource allocation and policy-making machinery of our representative democracy is overworked, insufficient to the demands placed upon it, and sorely in need of shoring up. In light of these difficulties, various experiments underway in the United States, aimed at supplementing our legislative, administrative, and judicial processes, deserve serious attention. Their goal is to increase the fairness, efficiency, and stability of decisions made in the public sector. These experiments, conducted at the local, state, and national levels, have several common features. They seek to confront fundamental conflicts and to resolve them. They seek to engage stakeholders (not just their elected representatives or hired advocates) in collaborative problem-solving. And while they in no way abrogate the formal decision-making authority of elected and appointed officials, they seek to generate consen-