Scenario 3: National-level Consensus Building - Biases in Mediation

author: Maarten Hajer, University of Amsterdam
coauthor: John Forester
coauthor: David Fairman, Center for Future Civic Media, Massachusetts Institute of Technology, MIT
recorded by: Massachusetts Institute of Technology, MIT
published: April 24, 2012,   recorded: July 2005,   views: 2590
released under terms of: Creative Commons Attribution Non-Commercial Share Alike (CC-BY-NC-SA)
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A federal agency has decided to involve the public in a negotiated rule making process (i.e. drafting regulations pursuant to federal legislation). Many questions regarding the role and structure of government advisory bodies in this context are answered by federal legislation (i.e. the Federal Advisory Committee Act). Some questions, however, remain open. For example, what kind of fact-finding or technical studies can and should the advisory group commission on its own (separate from the sponsoring agency)? What approach to joint fact-finding is most likely to ensure an effective balance between science and politics in the development of proposed regulations? And, is it reasonable to seek such a balance through the engagement of ad hoc representatives of various non-elected constituencies? Who should pay for whatever studies the group decides to commission? How might peer-review of the technical work fit into this process? And, what if the regulations in question concern actions or polices that could create serious risks to human health and safety? When fear, anger and emotion run high, what can and should be expected of joint fact-finding or efforts to balance science and politics?

The focus in this case is on generation of knowledge for consensus building, especially at the federal level, and ways of resolving science-intensive policy disputes (especially when fear and anger are involved because of potential risks to human health and safety). Questions about judicial review of regulations produced through national-level consensus building are sure to be raised. Should such regulations (especially when consensus is reached) be immune from subsequent legal challenges? If the participants in such a process are designated official advisory group members (under the Federal Advisory Committee Act), does this require that they all have substantial technical expertise? What kind of transparency should be required of such technically-oriented dialogues?

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