public policy dispute resolution
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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 helps resolves some of the high-profile policy disputes and finds resolution through controversy and clarity amidst chaos.
While every community is different, many issues are the same. However, when the issue becomes emotional or even political, finding a solution becomes difficult but not impossible. To help facilitate that process, they need to bring in a neutral third party who is sensitive to the politics of the problem, familiar enough with the people involved, but not connected to anyone so that they can help facilitate ways to bring a resolution forward.
The Founders of our country told us that we should have more perfect union. They did not say we have to agree on everything. 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.
While policy makers may agree on what the problem is, there is often uncertainty as to how to solve it. Issues such as selecting a new Speaker in Congress or even passing road funding in Michigan lack a process for problem solving and lacks the leadership of those involved to stand up and seek help in resolving complex public policy disputes.
Facilitation can help resolve high-profile policy disputes and help 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 can design the process for resolution, while being sensitive to the politics of the issue.
The facilitator would design and facilitate meetings to make sure all viewpoints are considered and help each stakeholder sort through information to support sound decisions.
Great leadership requires finding common ground among diverse interests. Trained facilitators can create the system and process around an issue to help the stakeholders problem solve and move complex multi-party and often politically partisan issues forward. It is time those whom we elect step up and step forward and seek help in flagging the problem and addressing the issue.
A facilitator can and will bring the right people together to make good decisions, under difficult situations. They don’t take sides or make decisions -- They simply create the path for people to move beyond their differences, join together, and discover a new way forward.
Perhaps its too soft of a way to govern, but given the lack of consensus and increased political posturing, with tonight's debate and the Presidential election well underway, over the next twelve months it is only going to get worse.
It's time to resolve our differences so we can all move forward.
Daniel Cherrin, founder of North Coast Strategies, spoke at Wayne State University Urban Public Policy Resolution Conference on stakeholder engagement, "Giving Voice To The Community." This is his presentation on The Third Way -- The Way Forward and how we can take the politics out of the policy making process.
To Move Michigan Forward, we must first create a vision that a majority of stakeholders can agree on. This vision will help everyone focus on the core issues and when they stray toward politics, we can bring them back to the issue. This is the process by which we can start stakeholder engagement.
At each step of the way, we will identify quick wins or mutual gains for each stakeholder, to build trust and let them know we are all in this fight together. And at each step, we share information to help each of us make informed decisions. If it is not something we can agree on, then we should move to the next issue and focus on those issues that we can agree on.
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.
Today’s political reality is that politics is by nature partisan and partisan politics has now overtaken the capitol. In addition, people and business are demanding a greater role in the policy making process so more voices are competing to make public policy that benefits or protects them.
After Tuesday’s election, it is time our elected leaders push politics aside and focus on the big picture of helping Michigan Move Forward.
Seattle, Wash, was struggling for years in figuring out how to replace The Alaskan Way Viaduct, a piece of aging infrastructure that stood as a barrier between Seattle’s downtown and its waterfront.
On one side you had environmental advocates that favored a solution focused on mass transit and bikes over more roadways. The business community favored access and city leaders wanted to leverage the city’s waterfront to revitalize the city. And taxpayer groups wanted something that was low cost.
As a result, a tunnel, elevated highway or retrofit of existing structures were not viable solutions. A referendum failed and still after 10+ years of dialogue and debate, a consensus could not be reached.
City leaders turned to professional facilitators to help reach a consensus. The facilitators stepped in and secured a commitment from all those involved that they would negotiate a consensus agreement. They reframed the issue, considered the region’s needs and reviewed an independent technical analysis of potential solutions. In addition, an advisory group of stakeholders was forced to provide input into the process to assist those at the negotiating table.
It is time Detroit’s regional leaders come back to the table and negotiate a consensus agreement as it relates to the DWSD and help the region move forward onto additional issues that impact the region as a whole.
Today, Seattle is a vibrant community. It is not just a city. Those in Seattle have adopted a certain lifestyle, created in part by removing the barriers linking a downtown to its waterfront and creating a bridge between vital stakeholders who had the power to act and help the city move forward.
And now that viaduct, is just "water under the bridge."
Yesterday I heard a state legislature tell me that the best place to train for legislative leadership is in the minority. After spending a few years as a Democrat in a Republican House of Representatives, this person when on to become the Majority Leader when the Democrats gained control.
Politics is cyclical. Those in the minority may soon have control of either or both chambers. Yet, according to an article in The New York Times, Polarization: It's Everywhere. According to the article and a new study from Pew Research, Republicans in Congress don't trust Democrats (and the feeling on the other side is mutual) and the voters certainly don't think very highly of those that we put in office.
When we don't trust each other we don't work well together, but in creating sound public policy we need that trust. To help restore the ability to work together, to accomplish a common goal or mission, I propose the creation of a Center for Public Policy Dispute Resolution. They exist in states such as Washington and Oregon and in city's like Salt Lake City, but we need to bring these models to other centers of power where politics trumps policy and progress.
There will always be politics and opposing views and debates on issues -- that is healthy, but what Oregon Solutions or Salt Lake Solutions provides is "process".
To formalize and sustain this process, I propose creating an office similar to Oregon Solutions, which provides a system and process for problem solving, using collaborative governance as a method of public decision-making in which government leaders involve stakeholders from many areas of society, including community members, businesses, other government agencies and non-profit organizations in making decisions that affect how people are governed or how public resources are used.
Oftentimes issues are brought to the Governor’s attention through Regional Solutions Centers (RSCs), which are places for state agencies to collaborate with each other and among key stakeholders.
When an issue seems intractable, Oregon Solutions calls on Oregon Consensus to mediate and resolve conflict. Oregon Consensus focuses its work on issues regarding the environment, economic development, transportation and public health.
Both Oregon Solutions and Oregon Consensus are not government entities, but they are affiliated with Portland State University. The Oregon Legislature continues to fund this program ($1.2M). Washington also has a similar system.
Similarly, at a city level, Salt Lake Solutions is jointly funded by the City Council and the Mayor and is part of the city government. It is charged with the task of solving community problems by cultivating inclusive collaborations of public and private support. Ralph Becker, the Mayor of Salt Lake City, took that same model and created Salt Lake City Solutions, an office, in the city’s planning department, that is dedicated to community engagement and facilitation.
These organizations provide a system and process for problem solving, using community governance. This includes:
It takes the burden off the elected officials to drive politically charged issues to a neutral organization that can create the process to resolve them.
Each issue comes to the organization’s attention after the Mayor, Council or Governor defines a problem that needs to be solved. The Mayor/Governor designates an impartial convener to bring people together and develop an assessment of the proposed project. If the issue meets the criteria for resolution, a neutral or convener is selected to manage and help resolve the project through facilitated meetings.
If we can agree to disagree than let's work together to at least build a process to help resolve our differences.
Facilitating an urban transit strategy in Washtenaw County, Mich.
Issue: Expanding county-wide transit options
Client: The Ann Arbor Transportation Authority (AATA)
Background.
Ann Arbor, Mich. is a growing community. With The University of Michigan serving as the anchor, the city has seen an increase in jobs centered-around R&D, manufacturing, start-ups and technology. The growth in the job market has led to an increase in new construction, not just in the city but also in the communities surrounding Ann Arbor.
With a strong transit system in Ann Arbor, expanding transportation options beyond the city has been an issue community leaders have been talking about for years. For the past three years (since 2010), since the creation of a 30-year Transit Master Plan for Washtenaw County, there has been an organized effort to reach out and engage the public, community leaders, and elected officials on the future of transit in Washtenaw County, culminating in an attempt to establish a countywide transit effort, which finally unraveled in the fall of 2012, after the City of Ann Arbor opted out of the countywide authority.
At the same time, the Ann Arbor City Council urged the AAATA to focus its planning efforts on the ‘urban core’ of Washtenaw County, that is, those communities where population density is highest and transit needs are the greatest. In response, the AAATA has developed a Five Year Transit Improvement Program for the Urban Core group of communities - City of Ann Arbor, City of Ypsilanti, Ypsilanti Township, Pittsfield Township, and the City of Saline – and again gained a general consensus among those communities on the level and nature of services to be provided.
To facilitate the planning process, an Urban Core Working Group was formed, composed of local elected officials from the involved jurisdictions along with other interested communities leaders from the Village of Dexter, Ann Arbor Township, Superior Township and Scio Township. The group met in March, April and June of 2013 and January of 2014 to help develop the Service Plan, Governance Structure and Funding Proposal, respectively. Each meeting was preceded by the preparation of briefing documents describing options for the Working Group to consider.
Facilitation
The AATA engaged attorneys Daniel Cherrin and Brian Pappas to preside over the meetings and make sure all participants had a chance to be heard. Cherrin and Pappas also helped drive the discussion to a closure, so that each meeting ended with a rough consensus on the topic being discussed.
Discussions first centered on the transit needs and expectations of the involved communities. The process was designed to ensure the AATA board and local elected officials worked together around a common vision for transportation in the county.
Once consensus was reached on the transportation needs of the community, Cherrin and Pappas began to focus the group’s attention to more contentious issues involving funding, governance and service.
A model was agreed upon and The Ann Arbor Area Transportation Authority (AAATA) placed a millage referendum on the ballot to enable the funding of services described in the Five-Year Transit Improvement Program (FYTIP), as passed by the AAATA Board on January 16, 2014, which was approved in May 2014.
Voters overwhelmingly approved a new 0.7-mill transit tax approved by 71.4 percent of those voting. Not only did the proposal have overwhelming overall approval, it had widespread support. The measure won in 54 of 56 precincts. Tuesday's election marked the first time in the AAATA's history that voters were asked to approve extra funding for public transit services beyond the annual financial support provided through the city charters in Ann Arbor and Ypsilanti.
As a result of the facilitated discussions, listening to public input and analyzing specific suggestions, the AATA:
Developed a 5-Year Transit Improvement Program (5YTIP) for the Urban Core of Washtenaw County.
The City of Ypsilanti (August 15, 2013) and Ypsilanti Township (December 17, 2013) joined the AATA, creating The Ann Arbor Area Transportation Authority (AAATA)
The ride board adopted a five-year transit improvement program that was based on a proposed program presented to the working group in March 2013 and refined through community feedback on Jan 16 2014.
A new funding model for expanded service and hours for a new urban core transit plan was approved by the voters in May 2014.
Changes to TheRide Governance Structure – MGF or Board member
A 5-Year Transit Improvement Program was adopted by TheRide Board.
QUOTES
“This plan really was a culmination of four and a half years of going out and talking to people, hearing what they wanted," Michael Ford, AATA CEO said. "We took a lot of time going through many areas that we had never been before, just talking to people about their needs and what their vision was for the future. I think this plan really starts to address that."
"I think it's a game-changer," Ypsilanti Township Supervisor Brenda Stumbo said, noting a lot of people commute from the Ypsilanti area to work in Ann Arbor, especially at the University of Michigan. "It's going to provide access," she said of the service expansion. "And it'll probably continue to grow and expand in the future."
"This was probably the single most important action we could take to further the interests of our region," Ann Arbor Mayor John Hieftje said. "I'm hoping the AAATA will continue to grow and Pittsfield Township would naturally be the next group to come in."
“The process allowed each mayor, township supervisor and city council member to come to the table from their own vantage point and participate in a discussion that is productive, leading to solutions in an area that this community has been talking about for decades without resolution.” – Mandy Grewal, Pittsfield Township Supervisor, January 2014
“The meetings were facilitated by Daniel Cherrin and Brian Pappus, who were working as dispute resolution volunteers (an odd note, since this was not exactly a dispute). They brought a fresh approach to the process, as they had no particular knowledge of transit and had not been associated with the long earlier process.” Ann Arbor, blogger, @localinannarborhttp://localinannarbor.com/2013/10/19/once-again-aaata-exceeds-its-reach/
“Had they been able to get to this point without our help? Honestly, I don't think so. As much as these meetings ran themself, we provided an independent voice to help steer the discussion. But behind the scenes we also served as couches or counselors to the AATA to help move them forward with the process,” Brian Pappas.
TESTIMONIALS
Thank you for making a very important contribution to the whole process. Your steady facilitation of those Urban Core Working Group meetings moved us positively through a very sensitive time. Outcomes could have been quite different without your involvement. – Michael Benham, AAATA, May 8, 2014
Dear Daniel and Brian:
Please accept our sincere thanks for the facilitation services you have provided to our Urban Core Transit Working Group. The work you did with staff in preparation for those meetings, including review of prepared materials, was extremely helpful in setting the stage for each meeting. Your facilitation of the meetings themselves, helped ensure that we got through the materials, and that everyone was heard.
As you know, gaining consensus on the Urban Core Transit Plan has been a complex and painstaking process. We believe that your help was invaluable in achieving this consensus and setting the stage for our next steps toward achieving improved regional transit.
As you consider future opportunities to provide your alternative dispute resolution services to other organizations, please know that we will be happy to speak highly of the value of your work.
Sincerely,
Michael Ford, AATA, CEO
8/15/2013
Timeline
Voters reject county wide transit plan – 2012
Ann Arbor directs AATA to come up with a better plan – 2012
AATA announces Urban Core initiative, November 2012
}Discussions begin about facilitation – December 2012
First session convening government stakeholders – March 28, 2013 with additional meetings held on: April 23, 2013; June 27, 2013; November 2013.
Final session to discuss results and gain feedback for taking the issue before the voters – January 2014
Issue to be put on May 2014 ballot for voters to decide.
Voters approve millage. May 2014
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
Politics is about compromise and lately we have had too much politics and not enough compromise. Detroit Free Press reporter Nancy Kaffer recently referenced this in a recent article, Michigan legislators need a lesson in compromise.
Yet, this week, a Michigan Senate Committee will convene to see how the Medicaid Expansion can move forward in the state. Long-term road funding continues to remain a perennial issue and the issue of expanding the Education Achievement Authority and implement Common Core standards in education remain unresolved.
Peter Luke, a reporter with The Bridge, recently wrote that legislators should be problem solvers when in fact, many just use their position to voice an opinion rather than work to find resolution through chaos.
"A governor working in a politically divided government often has no choice but to concede some measure of power to a legislative chamber controlled by the opposition party," Luke wrote. "When government is unified, a governor has two choices in pursuit of policy aims: Hope that intraparty disagreement can be resolved with a civil tone and tasty carrots. Or take out the stick."
There is no about that politics is about division. But it also is about discourse, discussion, debate and dealing with the issues for the benefit of the state. Agree to disagree, but agree to work together to address the issues plaguing our state.
With unfinished business and a long summer recess, I hope our lawmakers return refreshed and ready to remove the barriers to progress and work to resolve the issues before them.
Gone are the days when you found a job and stayed in that job until you retired. Today, the workforce is more mobile, in part due to the economy and the need to go where the jobs are and in party due to technology. As times change, so too must our political system and our political leaders should work harder at communicating their vision for improving their world. But that vision should not be theirs alone. It should be consensus-driven so that others can stand with the Mayor, Governor and others in supporting that vision. Once they have that vision, they can now create their agenda. What issues will become their priority and how will they go about implementing that agenda.
So communicating that vision and agenda will be vital to seeing it through. Why is this the right thing to do now? Does it reflect reality so that I can get others to rally behind it?
To lead the conversion, our leaders need to lead the conversation, but also listen to what others have to say and adjust their plans to reflect the political and economic realities. People are looking for solutions. Solutions that are immediate but also pro-active with long-term benefits
Change is never easy, but in order to change we have to know where you are going. To help you in the process we need to understand the why, the what and the how. We need to become emotionally-connected through common values. We will help you only if we can trust you and for that we need to start developing a relationship.
Once we begin the discussion and build the trust we will come to realize that we are all in this together and we each have a role to play -- So let’s support each other.
The honeymoon is over. The dust has already settled on the President’s Inaugural Address and the State of the State for many Governors. The Mayors have returned from their winter conference and special interests already staked out their positions on legislative agenda’s across America. Over the next legislative cycle, what issues will be tackled, which ones will be resolved and which issues will our government leaders punt to the next session will depend in large part to how well our legislators can get along.
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.
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.
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. In fact that model still works in various Parliaments, including the EU in Brussels. Not today and not in America. In the Michigan Legislature you are lucky if they know each others 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 -- only extended for two years. 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.
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.
About Daniel Cherrin
Daniel is a public relations + affairs executive who just happens to be a lawyer. Cherrin also is a certified, SCAO-trained mediator. He served as the Communications Director for the City of Detroit and Press Secretary to former Detroit Mayor, Kenneth V. Cockrel. He also has served as spokesperson for an 1800 MW off shore wind farm in Southwestern Ontario and also for Mackinac Island. He also led efforts to support a deep injection well in Romulus, Mich. He currently serves as a spokesperson for The Ann Arbor Art Fair and advises a number of clients through a variety of crises, B2B marketing, brand development and lobbying. This includes the Detroit Windsor Tunnel, Detroit Wayne County Port Authority, City of Windsor, ONT, Grand River and Mentor Ohio (on a proposed Lake Erie ferry project between Ohio and Ontario), Cassidy Turley, Vistage International and Guardian Industries among others. For more information, see http://fraserlawfirm.com/ourlawyers/lawyers/profile/daniel_j_cherrin.
Conflict among lawmakers and regulators is inevitable. The issues that come before the legislature and other government bodies can have the potential to divide a community. As a result, policy makers tend to avoid controversial issues or postpone crucial decisions hoping to avoid conflict. At the same time, key constituencies work to weigh in and share their views, meet with lawmakers, send emails or call them directly, hoping to help the lawmakers reach a consensus. 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.
As the Detroit City Charter Commission evaluates the existing Charter, it is recommended that they create a process by which to resolve disputes, at the Council Table, between citizens and with the business community. I will present to the Charter Commission a recommendation on what that policy can be and look forward to working with them in assisting in the creation of a public policy dispute resolution process. A full copy of the report can be downloaded at www.northcoaststrategies.com.
The sands have shifted in the practice of law. Gone are the days when clients were only concerned about the legal ramifications of a lawsuit or legal quagmire. Today, clients are often also concerned with how they are judged in the public eye and perceived by their customers, vendors and by their own families. In protecting a client’s reputation, “an attorney’s duties do not begin inside the courtroom door -- he or she cannot ignore the practical implications of a legal proceeding for the client.” An attorney should take reasonable steps to defend a client’s reputation.
This is particularly important in an environment where news is reported “24/7” and at times even delivered instantaneously to our cell phones. Likewise, with sales of newspapers and magazines at all-time lows, the media is hungry for a story even if no story really exists. Therefore, lawyers must be more diligent in looking at the big picture in protecting their clients’ interests in the court of law as well as in the court of public opinion.
Today’s legal strategies demand public relations
Today’s business environment demands an aggressive strategy to resolve issues legally while protecting one’s reputation publicly. As a result, lawyers need to be more than legal counselors or advocates. They need to be familiar enough with how perception is created within the public eye and how to use the media effectively to manage that perception. Therefore, the potential impact any litigation will have on a client’s image, reputation, investor relations and future business must be considered in creating a legal strategy.
To protect a client’s legal interests and also to preserve the client’s reputation publicly in a high-profile case, defense counsel should consider engaging public relations counsel early in the process, so as to develop a complementary strategy and get advice on how to deal with the media and protect the client’s public relations interests. In developing a broad defense strategy that embraces both legal and public relations concerns, lawyers need to look beyond the facts and include public relations concerns as a comprehensive defense. Public relations counsel can assist defense counsel by managing the public relations issues while defense counsel focuses on the traditional elements of mounting a defense. If both the legal and the public relations components are to succeed, it is essential that defense counsel and public relations counsel coordinate their efforts.
Protecting a client’s reputation
A lawyer who is going to represent a client outside the courtroom must become more comfortable in talking freely about their client’s case. Lawyers, trained to protect client confidences and to control information, have a natural tendency to answer only the questions that are asked and to give no more information than is necessary to resolve the issue. In the view of the public, however, information and communication are the two factors that build trust and go a long way toward preserving one’s reputation.
A public relations counselor can employ specific tactics to protect the reputation of a company or an individual leading a company while reinforcing issues legally. For example, in the public eye, we are presumed guilty if we respond to a reporter’s question with “no comment.” A better way to respond to a question you do not want to answer or are not ready to answer is to deflect it, by saying something like: “That is a very good question, one that we are looking into at the moment. As soon as we learn something new, we will get back to you promptly.” Retaining public relations counsel
The attorney-client privilege is generally preserved in retaining public relations counsel during the course of litigation. However, it helps when your public relations counsel also happens to be a licensed attorney. In fact, public relations seems to be a popular alternative career for attorneys. In any event, defense counsel should exercise care to ensure that any privilege is preserved. It also is preferable that the public relations firm be retained by and report to defense counsel rather than the client. This will help in mounting a coordinated defense and also help to preserve attorney-client privilege by ensuring that all communications pass through defense counsel.
Likewise, public relations counsel should include defense counsel in all stages of communication and consult closely with defense counsel in developing key messages to make sure it complements the legal strategy rather than puts it in jeopardy. Defense counsel should be present during any conferences involving public relations counsel and the client.
Given the stakes in today’s litigation environment, defense counsel may find it helpful to develop a relationship with a public relations firm, so that it can be ready to assist on short notice if and when it is needed. For example, some public relations firms are known for their expertise in crisis and reputation management while others focus more on soft promotions and publicist work. Some public relations firms focus specifically on litigation communications practice, and even have attorneys and registered lobbyists on staff.
Many of the larger law firms have a chief marketing officer that they can rely upon for initial help or guidance, while others have already retained a public relations firm to assist with matters that are beyond the routine. In any event, defense counsel should look for a public relations firm that has relationships with the media, both local and national, on-line, in-print and on-the-air. A useful source of information on public relations firm is the website maintained by the Council of Public Relations Firms at www.prfirms.org.
In preparing for litigation or creating a legal strategy to meet a clients objectives attorneys must consider the impact on their client’s businesses and reputations. Reputations take years to create and only seconds to destroy. Engaging public relations counsel early can create a comprehensive strategy that will help clients – and defense counsel -- succeed.
[i] Gentile v State Bar of Nevada (Kennedy opinion), 510 US 1030, 1043 (1991).
