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dispute resolution

Michigan's Bumpy Road Needs Compromise

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Michigan's Bumpy Road Needs Compromise

Public policy disputes have the potential of polarizing communities with the affect of delaying important decisions on vital issues of public policy, often resulting in diluted policies or no action at all. As a result, policy makers tend to avoid controversial issues or postpone crucial decisions hoping to avoid conflict.   Facilitation helps resolves some of the high-profile policy disputes and finds resolution through controversy and clarity amidst chaos. To assist governments in resolving disputes by and between each other, the disputants need a trusted third party neutral who is knowledgeable about the issues and the process, while being sensitive to the politics of the issue.

It is time our leaders lead us forward, not back. This starts by reframing the problems plaguing our state or nation in a way that each side could identify with. Once we find a connection to an issue, we are most likely to work hard at finding a resolution. In doing so it is hard to look beyond the politics, but as long as we can agree to concepts and work to make small steps towards building or rebuilding trust in finding a common agenda, our lawmakers can eventually find common ground and those difficult issues, the ones that kept getting put off or “re-authorized,” will move off the agenda so we can focus on the next great challenge.

Great leadership requires finding common ground among diverse interests.  The Michigan Legislature needs experienced facilitators to create systems and processes around an issue to help the stakeholders problem-solve and move complex multi-party and often political partisan issues forward.

With the election behind us our legislators need to now find a common ground, build trust and identify potential solutions to agree on and move forward with. Conflict among lawmakers and regulators is inevitable. However, carefully structured dialogues, mediated or facilitated by skilled third-party neutrals could offer a more effective and durable method to resolve conflicts and build consensus around controversial and often complex public policy issues.

We elected our leaders to represent a common mission not a party platform. Yet in legislating, most often it is politics that trump sound public policy. It is time to shift how government decisions are made and for our elected leaders to find a new way forward while seeking consensus instead of controversy. That is the path to smooth roads ahead. 

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Dispute Resolution for Alternative Energy Projects

To minimize costly disputes at the local community level, in 2011, the Bureau of Energy Systems began to work with the Community Dispute Resolution Program in Michigan to provide communities with contact information for individuals with specific expertise in wind-related Community Dispute Resolution, as well as information on the Community Dispute Resolution Program (CDRP) program.  In many jurisdictions throughout Michigan, courts are making citizens aware of the availability of mediation as an alternative to litigating many types of disputes.  

Community Dispute Resolution

 

Community Dispute Resolution is a voluntary process in which two or more parties meet with a trained neutral mediator and together find a resolution to their problem. Mediators have no decision-making authority, and they do not render case evaluations as in the MCR 2.403 case evaluation process.  Instead, mediators are trained to assist the parties in generating options that result in a mutually acceptable resolution of their conflict. 

 

The Alternative Dispute Resolution (ADR) Section of the Michigan State Bar houses a number of mediators who have mediated gas/oil, land use, and various additional "siting" type issues, including wind farm issues.  Other trained individuals work in government, private industry, the non-profit sector and academia.  Some individuals have training specifically related to Wind Energy.  Michigan also has a network of Community Dispute Resolution Program (CDRP) centers that offer mediation.  The centers, supported in part with funding from the Michigan Supreme Court, are available to provide mediation in a wide variety of dispute types.  (See: http://courts.michigan.gov/scao/dispute/ for information on Community Dispute Resolution program). 

Local Community Wind Projects and Community Dispute Resolution 

Many local municipalities are incorporating a provision for wind-specific dispute resolution processes in both their Planning Process and Local Zoning Ordinances that covers the planning, implementation, and operation stages of local wind farms. In the interest of minimizing the number of post-construction complaints, the Local municipalities may also wish to consider some preventive measures that might reduce the need for formal dispute resolution processes or litigation.  For example, provisions might address requiring wind companies to include good-neighbor payments to non-participants who are located within a pre-determined distance of a utility-scale wind turbine.  Another consideration for municipalities that wish to minimize disputes may be to limit wind energy projects only to areas of low residential density.  Overlay districts may be useful in encouraging the siting of wind turbines in certain areas, in addition to encouraging continued use of those areas for agricultural purposes. In more industrialized areas, wind energy overlay districts could be identified to encourage placement of wind turbines in areas zoned as industrial.

Finally, the Bureau of Energy Services has identified the following individuals as having specific expertise in wind-related community dispute resolution and wind energy:   

Dan Cherrin, (313) 300-0932, dcherrin@northcoaststrategies.com.

David Bidwell, (336) 416 1644, bidwell2@msu.edu

John Sarver, (517) 290-8602, johnsarver3@gmail.com 

Richard J. Figura, (231) 326-2072, rfigura@sfplaw.com. 

 

For more information about the BES Community Dispute Resolution, visit www.michigan.gov

*Reprinted from State of Michigan Website

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Who can help Detroit and Michigan Find Resolution Throughout all the Chaos

I am extremely frustrated by how partisan politics has become. In talking with lobbyists and lawmakers about the good old days of lawmaking, in both Washington and Lansing, it used to be that during the day, legislators would fight like crazy for their issues, they would debate and argue for what they thought was right and in the best interest of the ‘people.” And after a hard days work, they would shake hands and grab a drink or have dinner. Not today. In the Michigan Legislature you are lucky if they know each other’s name. In Washington, Members of Congress take their cues from their party leadership and everyone points fingers at the other person to say why they are not making progress. And that is in a non-election year.

So in Washington, you have a highway transportation bill that expired a few years ago that still has not been authorized. The education bill also expired and has not been authorized, leaving a generation behind instead of “no child,” punctuated by an election year that brings little hope of progress to a bitter end, at least and until sometime next year.

The only progress in Washington, D.C. are the Cherry Blossoms, and in Michigan, the only progress is Michigan State University moving into the next bracket.

In Lansing and Detroit we are still discussing bridges and transit. In fact, in 1976, President Gerald Ford offered funds to build a rail transit system in southeast Michigan. Instead, we just got the People Mover and today, we are still talking about the need for regional transportation.

Today, there is a lack of progress in moving forward on the difficult decisions that affect our nation and impact our state. Some would call it an impasse while others just chalk it up to politics. However, these are issues that can be resolved and resolved in a way that preserves the relationships, maintains the political differences and helps move the agenda forward collectively.

The use of ADR processes by the courts and federal government has been widely celebrated as a more efficient and cost effective method of conflict resolution. Mediation is a voluntary, confidential process in which a trained, impartial mediator helps people examine their mutual problems, identify and consider options and carefully consider possible resolutions. A mediator has the experience to bring disputing parties together and help them draw out a successful resolution while preventing an impasse during the negotiations, or otherwise prevent the discussions from breaking down. Unlike a judge or arbitrator, a mediator does not make the decisions nor do they offer solutions. They help separate the politics from the process, help the parties find a common ground, build trust and identify potential solutions to agree on.

Public policy dispute resolution focuses on the resolution of issues affecting the public, such as: Transportation; land use, special education, election districts and healthcare.  With public policy disputes, the issues tend to be a bit more polarizing, emotional and there are often a number of stakeholders from the community, including non-profits and business groups, and governments at a local, state and federal level.

Whether it is a public policy dispute or a dispute between neighbors, the goal of public any dispute resolution is to save money, preserve relationships and take control over the decisions. When it involves a public policy dispute, it is helpful and most effective if it creates the opportunity for all voices to be heard. It is a process being used in the planning process of multiple projects, including economic development projects in Austin, Texas and Salt Lake City Utah.

In any mediation, the first step in the mediation process is to get both parties to agree to use a mediator. That is actually the first agreement both parties make together and we are on the way to developing trust and building a relationship.

While many states have dispute resolution clauses in key legislation or dispute resolution centers at universities, the State of Michigan does not. The ADR Section to the State Bar of Michigan, continues to talk with universities about creating a "Center for Public Policy Dispute Resolution Services," and continues to talk with legislators.  However, since no university has yet to step forward in creating such a center, in part due to funding, The ADR Section is trying to show by example, the benefits of ADR.

The National Policy Consensus Center has found that legislators are becoming problem solvers, facilitators and conveners of issues vital to their state. Yet in Detroit and throughout the State of Michigan, we still cannot accomplish enough to move the state forward.  It is time to rebuild and repair relationships in the City of Detroit and throughout the State of Michigan. It is time the people we elected to lead our government and help move it forward. It is time that they ask for someone, or a team of neutrals to step in and help find resolution throughout all the chaos.

Policymakers can avoid making difficult decisions on controversial issues by creating a process by which public policy disputes can be resolved.  Through a facilitated consensual process, issues such as consent agreements, transit, new infrastructure projects, transit and councils-by-district can be avoided and we can all move on to other issues to help our city, state and nation move forward.

If we just talked earlier and learned about the real issues underlying the bigger ones, than perhaps today, we would be talking more about basketball instead about a bridge, debt ceilings, transit or a consent agreement. It is time we brought in neutrals to help resolve the bigger issues plaguing our nation.

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Action Through Collaboration

A region just north of Detroit saw a problem and created a collaborative effort to create, adopt and implement a five-year regional economic roadmap.  During the process of creating the strategic plan, more than 400 stakeholders were asked to identify their top two priorities for the local economic development corporation to tackle.  Earlier this month, the Windsor-Essex (Ontario, Canada) Economic Development Corporation announced their five-year plan at a Windsor-Essex Chamber luncheon. The communities, including government, labor, business and acadamia, collaborated and everyone made a commitment to change.

Since the Windsor Essex collaboration began in 2010, 1,862 new jobs were created, $73 million in investments were made, 6,069 jobs were saved and 28,092 small business inquiries were made.  To find those numbers in Southeastern Michigan, one would have to contact Automation Alley, the DEGC, the Detroit Regional Chamber, Ann Arbor Spark, TechTown, Velocity, and others.  Unlike our Canadian neighbors, our region continues to be fragmented and polarizing.

As a result of their efforts, Windsor has gained international attention for its efforts, seeing such headlines as:

  • “Top 7 intelligent community of the year”(Intelligent Community Forum)
  • Windsor-Essex to lead nation’s economy Growth (Conference Board of Canada)
  • Top 5 Best Places to Invest (site Selection)
  • Canada’s auto capital named city of the future (CBC news)
  • Mini Motown Finds there is life after autos (Calgary Bean, 3.20.11)

Last week, the Business Leaders for Michigan announced their turnaround plan for the State of Michigan. A great plan that any lawmaker could pick up and start using. While it is a great plan, we need the input of all the interested parties, labor, university and others, if we are to truly implement an agenda that we can all agree on and start moving forward with.

In addition, Detroit's business leaders, if not those throughout the state of Michigan, need to reach out to Windsor’s business leaders. We need to collaborate across borders and work collectively for the good of our region, as a region.

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Seeking Consensus Through Controversy

Why do we always have to wait for the last hour before something gets done in Washington? No, I take that back, Congress exceeds the deadline by which to decide on important issues so they or The White House pass extensions on laws, such the Transportation Equity Act or the No Child Left Behind Act or even the budget so they by time before a decision has to be made. The stalemate on what to do about the debt ceiling is no exception and just the status quo. While the Democrats and Republicans have been talking there seems to be an impasse, where no one is agreeing with anybody, even on the most basic of issues. It seems that Washington, needs the support and guidance of a neutral third party to resolve these disputes and bring some closure to a number of long standing issues, most importantly today, the debt ceiling. In public policy dispute resolution, for example, all the interested stakeholders come together with the help of a third party neutral who will assist the stakeholders in reaching consensus.  Public policy dispute resolution provides for a nonpartisan process for resolving public policy disputes, and has proven successful at all levels of government.  In fact, it is emerging as a more effective way of dealing with some of the most polarizing issues.  It leads to innovation, creative solutions and relationship enhancement.  But is that what Democrats and Republicans want?

The National Policy Consensus Center has found that legislators are becoming problem solvers, facilitators and conveners of issues vital to their state. Yet in Washington, D.C., Members of Congress fail each year to come to a consensus on health care, the budget, various re-authorizations and the debt ceiling.

Today, public policy disputes have the potential of polarizing communities with the affect of delaying important decisions on vital issues of public policy, often resulting in diluted policies or no action at all.  Facilitation or mediation helps in resolving some of the high-profile policy disputes and find resolution through controversy and clarity amidst chaos. To assist governments in resolving disputes by and between each other, the disputants need a trusted third party neutral, who is knowledgeable about the issues and the process, while being sensitive to the politics of the day.  A university provides elected leaders with an unbiased academic approach to public policy dispute resolution. Perhaps the President, the Speaker, Senate Majority Leader and their colleagues should turn to a University President or perhaps neutral world leader such as the Prime Minister of Canada or Tony Blair or perhaps co-mediators with former President’s George Bush and Bill Clinton, to help resolve the issues.

Policymakers can avoid making difficult decisions on controversial issues by creating a process by which public policy disputes can be resolved.  Through a facilitated consensual process, issues such as government shutdowns, delayed projects and other missed opportunities can be avoided and we can all move on to other issues to help our nation move forward.

Decisions that are reached collaboratively can result in high-quality outcomes that are easier to implement, receive fewer legal challenges, make better use of available resources, and better serve the public.

Collaboration is not appropriate for all decisions. It is not necessary or recommended to use a formal collaborative process for routine, simple, or urgent decisions. Collaborative processes are often effective when applied to complex policy questions that affect multiple, interdependent interests, where all the diverse parties affected have compelling reasons to engage with one another in a search for a joint policy or program outcome, and where sufficient time and resources are available to support the process.

However, the following conditions help to sustain collaborative processes:

  • Clear Role and Purpose
  • Transparency of Decision-Making
  • Interest-Based Decision-Making
  • Every Effort to Bring Affected Stakeholders into the Process
  • Stakeholders Represents Organized Constituencies
  • Upfront Exploration of Interests
  • Common Understanding of Problems and Joint Fact Finding
  • Policy and Technical Expertise
  • Respectful and Authentic Process
  • Transparency of Products

Washington did not have to wait this long. If the parties talked earlier and learned about the real issues underlying the bigger ones, than perhaps today, we would be talking football instead of debt ceilings. It is time we brought in neutrals to help resolve the bigger issues plaguing our nation.

For more information, please contact Fraser Trebilcock or Daniel Cherrin atdcherrin@fraserlawfirm.com.

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