Thursday, January 28, 2010

ADR and the State of the Union

The federal sector ADR community has pushed the Obama Administration to establish policies and publish an Executive Order (EO) to encourage federal agencies to use more ADR techniques such as face-to-face (f2f) facilitated negotiations, including specifically greater use of negotiated rulemaking (see the Negotiated Rulemaking Act, 5 U.S.C. §§ 561 - 570). Nearly a year into office, it is fair to ask whether these hopes have been met. The short answer is clearly no.

Over the past year, the Administration has focused its efforts on government transparency and public input. This has led to designing electronic means of sending and receiving information to and from the public, largely based on “crowdsourcing,” the concept of applying open-source software development principles to fields outside of software development.

The Administration, on the President’s second day in office, published a Memorandum on Transparency and Open Government instructing the Chief Technology Officer, the Office of Management and Budget (OMB) and the Administrator of General Services to produce an Open Government Directive to implement the principles of transparency, participation and collaboration outlined in the Memorandum.

On December 8, 2009, Peter Orszag, Director of the OMB, issued the Open Government Directive. This set of policies and principles was strongly supported by many people in the collaborative governance and deliberative democracy community and by ADR practitioners. However, while this memo may have been necessary to open government to the public, it is clearly not sufficient to engage stakeholders.

To date, the Administration has produced no memorandum or EO to encourage agency use of ADR techniques and f2f negotiations. During the summer of 2009 supporters of the Administration, agency ADR staff and others met to draft an EO designed to foster greater agency use of ADR techniques and f2f negotiations.

The draft EO, “Participation and Collaboration in Government” was designed to encourage agency policies to provide stakeholders the fullest opportunity permitted by law to engage meaningfully in governance and the policy process, and to provide the Government with the benefits of their collective expertise and information. The draft EO contained a whole litany of activities that agencies were to have undertaken to accomplish the policy of maximum stakeholder involvement in the policy and processes of government.

The Open Government Directive appears similar and in some ways overlaps with the draft EO on Participation and Collaboration in Government. So what is the big deal? Why should there be an EO on “Participation and Collaboration” in Government when the Administration has already published two directives on Transparency, Participation and Collaboration?

The difference is that the policies on Transparency, Participation and Collaboration all address how the government provides and receives information from and to the public and other stakeholders. This concept has been described as crowdsourcing. As described in the December 8, 2009 memorandum from Director Orszag, these crowdsourcing policies include:
  • Transparency – provide the public with information;
  • Participation – allow members of the public to contribute ideas and expertise to the government; and
  • Collaboration – encourage partnerships and cooperation within the federal government, across levels of government (federal, state and local) and between the government and private institutions.

These three policies generally relate to the government providing and receiving information. Only the third principle, Collaboration, addresses collaboration. The Orszag Open Government memo is not specific about how agencies are to improve Collaboration between the government and stakeholders. The “Participation and Collaboration in Government” draft EO contains the specific instructions necessary to require agencies to meet and negotiate – face to face – with stakeholders over policy, programs and issues.

The Open Government Directive and other crowdsourcing practices are useful for such tasks as brainstorming and idea generation, but they do not meet the basic principles of public participation, like inclusion, neutrality and collaboration.
The Administration should issue specific directions to the agencies requiring them to negotiate directly with stakeholders, which the Open Government Directive does not do, not simply to communicate more effectively by using electronic methods of providing and receiving information, which the Open Government Directive does very well.

Here is a link to a very interesting article by Tim Bonnemann in Federal Computer Week about the outer limits of the crowd’s wisdom, and why crowdsourcing and the policies adopted in the Open Government Directive are simply not adequate. Public participation requires different rules –- rules developed over three decades –- by ADR and stakeholder involvement practitioners.

There are significant characteristics in f2f negotiations using ADR techniques that crowdsourcing techniques do not employ:
  • The concept of stakeholders sitting at a table representing interests, not simply people; and
  • The concepts of negotiation, deliberation and seeking agreements or consensus.

Crowdsourcing and public participation as defined in the Orszag directive do not use these concepts; crowdsourcing is simply designed to gather information and allow people to express their views. They do not incorporate the principles of negotiation where people representing specific interests deliberate, exchange information and attempt to seek agreement.

The Administration has taken a necessary first step by requiring agencies to become more transparent and communicate more effectively with the public. But it has not, at least not yet, taken the necessary second step of requiring agencies to negotiate with the public, thus allowing better integration of multiple viewpoints and interests by inviting representatives of the affected public (stakeholders) to participate in the decision-making. The Obama Administration should promulgate an Executive Order requiring agencies to empower stakeholder participation and collaboration with government.