From Intellectual Awareness to Living Craft: A Window into Negotiated Rule-making

By on / Pedagogy at PON

By Bruno Verdini

Dirty Stuff II is a five-party, multi-issue, facilitated negotiation game that explores the theory and practice of negotiated rule-making (a process that public agencies in the United States can use to draft regulations). Accessible to students, activists, managers, scientists, and decision-makers, the exercise explores collaborative approaches to formulating restrictions on the production and use of an industrial by-product to which prolonged exposure probably causes serious health and environmental damage. Through the game, players representing government agencies, environmental organizations, consumer groups, industry, and organized labor try to reach agreement on the language of a short federal regulation. They have an opportunity to discover how possible agreement is shaped by their ability to imagine plausible solutions, make trades, and distribute value effectively. There is a twist in the game created by the fact that consumer groups were initially left out of the process and are only now, in response to very public protest, being invited to the table.

Written by Professor Lawrence Susskind (MIT) and modified, under his supervision, by Jeffrey B. Litwak, the game offers an opportunity to explore the potential ambiguities and uncertainties that flow from the discretion of agency staff as well as from the tensions that characterize the interaction between regulators and regulatees. Thus, the game is especially meaningful to students studying administrative law, environmental regulation, public dispute resolution, mediation, public administration and civic engagement. Modeled on the option of negotiated rule-making prescribed by the Unites States Congress and incorporated into the Administrative Dispute Resolution Act of 1996, the game offers opportunities to see whether and how government agencies might consult with and ultimately formulate policies in conjunction with groups that have divergent interests, values, and economic concerns. The game offers a way to understand, in practice, why the United States Departments of the Interior, Labor, Health and Human Services, Housing and Urban Development, Transportation, Education, and the Environmental Protection Agency, to name a few, currently use negotiated rule-making to build consensus among competing stakeholders when they have to draft what they know will be controversial rules.

The negotiation game involves six role-players, representing government, consumer, industry, labor, and environmental interests, along with an independent facilitator. Each part can be played by one or several participants. The exercise begins with the reading of General Instructions outlining the history of the case and describing the preliminary draft of a proposed rule developed by a consultant to the Agency. Next, the players are allowed 15 minutes to read their own confidential instructions and prepare for the group meeting. Confidential instructions clarify each player’s ranking of the contested issues. Participants then have 20 minutes to caucus in private with others who will be playing the same role, but at other tables. Same role meetings are often used to clarify each party’s best alternative to a negotiated agreement (BATNA) and to imagine ways of probing to determine the zone of possible agreement (ZOPA). It is very interesting to see the differences that emerge at separate tables playing the same game.

The ensuing facilitated negotiation usually runs for about 60 to 90 minutes. Four of the five parties must concur on the detailed wording of the draft rule, or no agreement is reached and the Agency will promulgate the draft rule with which the group began. Everything focuses on the best ways of managing the risks associated with using an economically valuable but potentially dangerous substance called “Dirty Stuff.” By challenging players to examine the risks associated with the release of this industrial by-product, define safe levels of use, select between two different cleaning technologies, agree on a health and safety monitoring strategy (along with penalties for violations), and configure some kind of advisory or review board, participants experience opportunities and tensions associated with integrative and distributive bargaining.

During the game, players are free to set a cooperative or a competitive tone, linking or de-linking issues and availing themselves of the services of the mediator as they see fit. They need to come up with a single negotiating text. The facilitator or mediator, brought in as an outsider, can play as active or passive a role as he or she likes.

There are opportunities to talk about ground rules to guide the discussion, and how potential disruptions will be addressed. Private caucuses are allowed, but how they fit into the flow of the group’s conversation has to be decided. Multiple versions of facilitation are thus on display, allowing players to discover and gauge, according to their own preferences, the consequences of seeking a laid-back process manager or a highly active mediator.

A follow-on debriefing is very important, whether the parties reached agreement or not. (In some ways, groups that were unable to achieve agreement provide the most interesting material for discussion). A good debriefing usually takes about 45 minutes. This allows the participants to re-think their initial assumptions in light of the results and feedback from their peers. If multiple tables play the same game at the same time, it is easy to discuss the benefits of different facilitation or problem-solving strategies. Overall, the game should illustrate the extent to which negotiated rule-making can supplement traditional administrative (i.e., review and comment) procedures.

By emphasizing the challenges that emerge when facts are contested by competing interests facing crucial political and economic ramifications, the role-play game provides experiential insights. Most important, it depicts the possibility of involving diverse stakeholders in a collaborative problem-solving process, enhanced through facilitation. Players can thus re-imagine the usual approach to regulation and explore the prospects of producing “all-gain” rather than zero-sum solutions.

The game is available for download at the Clearinghouse of the Program on Negotiation, Harvard Law School (www.pon.org).

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