Oregon Consensus Program

Services

The Oregon Consensus Program (OCP) provides a neutral forum within Portland State University for convening collaborative processes involving public issues. OCP does the "upfront" screening, consultation, assessment and "getting the parties to the table" work, often working with an initiating party and/or an outside convener. Once parties agree to come together, OCP assists them in selecting and managing the services of a neutral facilitator or mediator skilled in consensus as well as the substantive area. We also assist in finding the resources to support the process.

The OCP provides quality control, serves as a repository of information and research on the increasing body of knowledge regarding public policy dispute resolution and consensus building processes, and develops models for using such processes in public policy systems.

The Oregon Consensus Program provides a number of services to assist parties to determine whether and how to collaborate. The generic service we provide is technical assistance around any aspect of collaboration, mediation or facilitation. Many terms are used to describe different processes and different stages in a process. The following descriptions of services are given for the sake of clarity, although many of these terms are overlapping or some may be inclusive of others. Where possible, we have used descriptions consistent with those used by the US Institute for Environmental Conflict Resolution (USIECR) in its mediator roster.

Conflict Assessment
Conflict assessment (often known as or including "convening") helps to identify the issues in controversy in a given situation, the affected interests, and the appropriate form(s) of handling the conflict. The assessment process typically involves a trained neutral conferring with potentially interested persons regarding a situation involving conflict in order to: assess the causes of the conflict; identify the entities and individuals who would be substantively affected by the conflict's outcome; assess those persons' interests and identify a preliminary set of issues that they believe relevant; evaluate the feasibility of using a consensus-building or other collaborative process to address these issues; educate interested persons on consensus and collaborative processes so as to help them think through whether they would wish to participate; and design the structure and membership of a negotiating committee or other collaborative process (if any) to address the conflict.

Conflict assessment by a neutral third party has proven valuable and almost necessary as a first step in finding constructive approaches to resolving public policy conflicts or in specific consensus-building processes like negotiated rulemaking. The conflict assessment may be a discreet activity or it may be combined with the actual convening and initiation of the process. The complexity of conflict assessments vary. They may result in a written or oral report, or may simply lead to the proposal for the process.

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Consensus Building
Consensus building describes a number of collaborative decision making techniques in which a facilitator or mediator is used to assist diverse or competing interest groups to reach agreement on policy matters, public policy conflicts, or other issues in controversy affecting a large number of people. Consensus building processes are typically used to foster dialogue, clarify areas of agreement and disagreement, improve the information on which a decision may be based, and resolve controversial issues in ways that all interests find acceptable. Consensus building typically involves structured (yet relatively informal), face-to-face interaction among representatives of stakeholder groups with a goal of gaining early participation from affected interests with differing viewpoints, producing sound policies with a wide range of support, and reducing the likelihood of subsequent disagreements or legal challenges. These are agreement seeking processes, even if the agreement is on recommendations that must be implemented in a more formal or legal way.

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Convening
Getting all the parties to the table in a constructive way, with an intention to work together to solve the problem at hand is key to resolving issues. Sometimes it takes a political or community leader to "convene" or call the needed parties together. Sometimes it takes a neutral forum like the University. Whatever it takes, it is important to have a neutral third party assist the convener in setting up the process in a clear and transparent way. (This is usually based on an assessment. See above.) The Oregon Consensus Program can serve as convener or can assist the leader who is to convene and can provide the neutral forum in which all parties can work together.

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Dispute Systems Design
Dispute systems design is a process for assisting an organization to develop a structure for handling a series of similar recurring or anticipated disputes (e.g., environmental enforcement cases or EEO complaints within an agency) more effectively. A dispute systems designer typically proceeds by interviewing representatives of interested or affected groups (including people in the agency) about their perceptions and interests; analyzing the organization's existing system for handling these conflicts; designing and implementing conflict management or dispute resolution procedures that encourage early, informal resolution of conflicts; and perhaps evaluating the impact of these new dispute resolution procedures to assure their effectiveness.

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Facilitation
Facilitation is a collaborative process in which a neutral seeks to assist a group of individuals or other parties to discuss constructively a number of complex, potentially controversial issues. The facilitator typically works with participants before and during these discussions to assure that appropriate persons are at the table, help the parties set ground rules and agendas, enforce both, assist parties to communicate effectively, and help the participants keep on track in working toward their goals. While facilitation bears many similarities to mediation, the neutral in a facilitation process (the "facilitator") usually plays a less active role than a mediator and, unlike a mediator, often does not see "resolution" as a goal of his or her work. Facilitation may be used in any number of situations where parties of diverse interests or experience are in discussion, ranging from scientific seminars to management meetings to public forums. Facilitation may also be used in agreement seeking processes.

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Joint Fact-finding
Joint fact-finding is a process in which a neutral assists parties involved in a consensus process to work with scientific or technical resource people to receive and review information and/or conduct additional research to investigate the issues in dispute. Together the participants frame the issues, discuss the available information and arrive at agreed on "findings of fact." This process may also include defining areas of disagreement over factual or technical information, and decisions about how to proceed in the face of the disagreements. This process is typically used as part of a consensus process where policies or decisions are influenced by data or technical or scientific issues. The Oregon Consensus Program is engaged with the Institute for Natural Resources at Oregon State University to find better ways to work with scientific and technical information in the development of policy. The OCP is also engaged nationally to continue developing processes that can assist in resolving disputes or making public policy decisions that involve technical and scientific information.

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Mediation
Mediation is simply facilitated negotiation in which a skilled, impartial third party seeks to enhance negotiations between parties to a conflict, or their representatives, by improving communication, developing a common base of information, identifying interests, and exploring possibilities for a mutually agreeable resolution. The disputants remain responsible for negotiating an agreement, and the mediator lacks power to impose any solution; the mediator's role is to assist and manage the process in ways acceptable to the parties. Typically this involves creating and managing a structure equally accessible and helpful to all parties, helping the parties to understand their own and others' interests and their alternatives, finding areas of common ground, assisting parties to develop options for possible solutions, supervising the negotiating, and helping parties draft a final agreement. While mediation typically occurs in the context of a specific dispute involving a limited number of parties, mediative procedures are also used to develop broad policies or regulatory mandates and may involve dozens of participants who represent a variety of interests. Mediation most often is a voluntary process, but in some jurisdictions may be mandated by court order or statute.

Different approaches to mediation are appropriate for different types of disputes. For instance, a mediator may emphasize helping the parties understand the strength and weaknesses of their cases, and provide guidance as to the likely outcome in court and appropriate grounds for settling, in cases that are in litigation that the parties and their attorneys are attempting to settle (primarily retrospective). In public policy issues, which tend to be future oriented, mediators are less likely to provide direct advice, propose solutions, or predict outcomes; they usually seek to establish a framework that makes it safe for parties to communicate more effectively as to their interests, options, and realistic alternatives, and assist the parties in jointly developing or identifying options to address the issues.

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Negotiated Rulemaking
Negotiated rulemaking (also called "regulatory negotiation "or "reg-neg") is a multi-party consensus process in which a balanced negotiating committee seeks to reach agreement on the substance of a proposed agency rule, policy, or standard. The negotiating committee is comprised of representatives of those interests that will be affected by, or have an interest in, the rule, including the rulemaking agency itself. Affected interests that are represented in the negotiations are expected to abide by any resulting agreement and implement its terms. This agreement-seeking process usually occurs only after a thorough conflict assessment has been conducted, and is generally undertaken with the assistance of a skilled, neutral mediator or facilitator. An agreement reached in this process is usually proposed by the agency as the draft rule, which then goes through the legally required full public process.

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Policy Dialogue
Often used to address complex public policy disputes constructively, policy dialogues are processes that bring together representatives of groups with divergent views or interests to tap the collective views of participants in the process. The goals include opening up discussion, improving communication and mutual understanding, exploring the issues in controversy to see if participants' different viewpoints can be distilled into general recommendations, and trying to reach agreement on a proposed policy standard or guidelines to be recommended by government.

Unlike processes that explicitly seek to obtain consensus (e.g., negotiated rulemaking, mediation, consensus processes), policy dialogues usually do not seek to achieve a full, specific agreement that would bind all participating interests. Rather, participants in a policy dialogue may seek to assess the potential for developing a full consensus resolution at some later time or may put forward general, non-binding recommendations or broad policy preferences for an agency (or other governmental entity) to consider in its subsequent decision making.

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Process Design
In process design, a neutral assists an organization or a group of parties to develop (or recommends to them) a process for addressing a particular controversy or a series of disputes. Typically a process designer interviews representatives of interested or affected groups (including people in the agency) about their perceptions, their interests regarding the conflict in question, and their suggestions as to useful ways to handle it. The designer will then report to the agency and/or the parties with recommendations, or a plan, for handling the dispute(s). Process design is often an element in a conflict assessment. (See above.)

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Technical Assistance and Consultation
The Oregon Consensus Program is available to provide technical assistance on any of the services listed above, or for consultation about any dispute involving public issues. The nature of our technical assistance is to advise about the potential for a collaborative approach to the problem or issue identified, and to assist interested parties in selecting an approach.

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Neutral (Mediator/Facilitator) Selection, Management and Quality Control
The Oregon Consensus Program works with private providers to maintain a panel of qualified neutrals for a variety of services. When a collaborative process is ready to be initiated, the Program assists the parties to jointly select from a group of providers appropriate to their issue and their process the neutral that appears to be best suited and acceptable to all. Sometimes this selection process may be a facilitated interview process or it may be an individual review of the qualifications of appropriate providers. In most cases the OCP will serve as the contracting agent and provide the impartial supervision of the neutral. However, if it is desirable for one of the parties or the agency involved to be the contractor, a direct referral is made. The OCP provides quality control of all mediators it uses. (See Mediators and Facilitators and Choosing an Appropriate Neutral.

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Note about Advisory Groups
Advisory groups may be used for a wide range of purposes. It is most important to determine what their purpose is, whether they are developing a consensus recommendation, or giving individual perspectives to advise an agency on policy. The Oregon Consensus Program can provide technical assistance regarding setting up advisory groups. The Program does not, however, provide services to advisory groups that are a pure public involvement mechanism with no commitment to seeking agreed upon advice.

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Fees for Services
The Oregon Consensus Program is partially funded by the Oregon Legislature, and is therefore able to provide some technical assistance and conflict assessment without charge to the participants. It has some funds to initiate mediation processes, but must develop complete funding before a long term process may be initiated. From time to time the Program has specific grant funds for certain types of services or for services to certain classes of cases, such as land use. Funding for particular processes most often come from contributions of the participating parties and/or from private grant funds.

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