Friday, September 20, 2013


The American Bar Association Section of Dispute Resolution announced the winner of the 2013 Boskey Dispute Resolution Essay competition. Sarah Gonski, a Harvard Law student, won the competition with her essay entitled “Easing Gridlock in the United States Congress Through Mediation: Letting Our Cities and States Teach Us Lessons On Getting Along.” 

The essay suggests that Congressional gridlock can be reduced by following the lead of several states and local governments by using mediators to mediate policy and legislative discussions, similar to the Negotiated Rulemaking Act (often called reg neg). Reg Neg was enacted to to encourage agencies to use negotiated rulemaking when it enhances the informal rulemaking process. (5 U.S.C § 561). 

The idea behind reg neg was set out in 1982 by Phillip Harter, an administrative law expert who developed the reg neg idea in a law review article, proposing negotiation as a means of alleviating the "malaise" that hindered the existing federal rulemaking process. See Harter, Philip J., Negotiating Regulations: A Cure for Malaise, Georgetown Law Journal, vol. 71, 1982 

Ms. Gonski’s essay sets forth some examples of successful uses of mediated legislative and policy negotiations by states and cities and the short and sad history of the few attempts to get Congress to establish a mediation office in Congress. She suggests that because of the institutional barriers in establishing a new agency, the Federal Mediation and Conciliation Service (FMCS), an existing federal agency that already provides mediation services in labor and employment disputes, could serve as home for legislative mediation.

I was directly involved in developing the legislation that authorizes FMCS to mediate reg neg and other federal sector policy issues by adding language to insure that the FMCS was specifically authorized to assist agencies by furnishing conveners, facilitators, and training in negotiated rulemaking. (See the Negotiated Rulemaking Act of 1990, reauthorized in 1996 and incorporated into the Administrative Procedure Act at 5 U.S.C. §§ 568 (b))

The need for mediation on the Hill is obvious. Gridlock is not good for anyone. 

While many issues will remain gridlocked because elections are the only way to resolve major public questions such as our budget priorities, not all legislation pending on the Hill is subject to those political pressures. If the appropriate stakeholders are involved in the negotiations over regulatory and other substantive issues, if the significant stakeholders on all sides of an issue can agree, then Members of Congress will not block the legislation. 

This would allow for Congress to actually conduct much of the business of the public, while, if they wish, continue to play their electoral/political games on the large (mostly budget-related) issues. 

Mediation on the Hill will not solve all issues and certainly will not eliminate the split between red and blue partisans. However, placing legislative/policy mediators in the FMCS and authorizing them to mediate legislative issues for Congress could result in better, less partisan legislation. 

This is a worthwhile goal.