Practicing Public Sector Dispute Resolution in the United States Presentation to Association for Conflict Resolution Japan: Practicing Public Sector Dispute Resolution in the United States Wednesday October 5, 2005 Dr. Jonathan Raab Raab Associates, Ltd. 12 Farnsworth St., 4th fl. Boston, MA 02210 www.RaabAssociates.org

My Presentation Today Part I: My Public Sector Practice and Cases Part II: Issues Related to the Practice of Consensus Building and Mediation in the United States

Public Health, Education, etc. Practice Areas: Energy Environment Other Areas - Land Use, Public Health, Education, etc.

Mediation/Facilitation Services: Mediation/Facilitation Training Web Tools Policy Consulting* *(discontinued 2002)

Facilitation/Mediation Classic Contract Disputes Site Specific Cases Strategic Planning Policy Cases (Dozens of cases, with hundreds of meetings, and thousands of stakeholders)

Facilitation/Mediation Cases: Site Specific Facilitation/Mediation Cases: Cape and Islands Offshore Wind Housatonic River Project Massachusetts Military Reservation’s Citizen Advisory Panel

Facilitation/Mediation: Strategic Planning Facilitation/Mediation: Federal Energy Technology Center Merger and Consolidation Plan Rhode Island and Massachusetts Renewable Energy Funds Connecticut Greenhouse Gas Planning Retreat US Department of Energy Solid State Lighting Program Planning Workshops

Policy Facilitation/Mediation: Federal/National Regional (New England/Northeast) State

Policy Facilitation/Mediation: Federal/Regional Federal/National: IDEA Partnership’s Cross-Partner Exploration of Issues Workshop National Energy Policy Initiative Regional: Regional Greenhouse Gas Initiative (RGGI) Electric Industry Restructuring Roundtable New England Demand Response Initiative New England Disclosure Project

Policy Facilitation/Mediation: State Maine Greenhouse Gas Action Plan Process Maine Wind Power Workshop MA Distributed Generation Collaborative NH and MA Energy Efficiency Working Groups MA NOx Emissions Allocation Reg-Neg RI Renewable Energy Standard Reg-Neg Rhode Island Greenhouse Gas Project

Rhode Island Greenhouse Gas Stakeholder Process: Developing the Rhode Island Greenhouse Gas Action Plan Fall 2001 – Summer 2002

Facilitators/Mediators Consultants/Modelers Sponsors/Hosts RI Department of Environmental Management RI State Energy Office Facilitators/Mediators Raab Associates, Ltd. Consultants/Modelers Tellus Institute Other Independent Consultants Funders U.S. EPA (convening $) IECR (early plan/implementation $) RI Department of Environmental Management and State Energy Office RI Foundation (small education grant) )

Original Stakeholders Apeiron Institute for Environmental Living Associated Builders and Contractors Audubon Society of Rhode Island Brown University Business Roundtable Conservation Law Foundation Department of Administration Narragansett Electric Nat. Fed’n of Independent Businesses New England Gas Company Northern RI Chamber of Commerce Oil Heat Institute Providence Chamber of Commerce RI Builder's Association RI Dept. of Environmental Management RI Dept. of Transportation RI Economic Development Corp. RI League of Cities and Towns RI Petroleum Institute RI Public Interest Research Group RI Public Transit Authority RI Division of Public Utilities and Carriers RI Society of Environmental Professionals RI State Energy Office RI Statewide Planning Save The Bay Sierra Club Sustainability Coalition The Energy Council of Rhode Island Ex-Officio Governor's Policy Office RI House, Policy Office RI Senate, Policy Office US EPA US DOE

RI GHG Original Structure

Projecting a Baseline by Sector Notes: This chart shows energy sector emissions with emissions from electric generation allocated among the four tertiary sectors (industry, transport, commerce and residential) based on the electricity consumed in those sectors.

Selecting Targets Selected Governors’/ Premiers’ Targets for now. 2020 Levels must be ~ 1/3 below 1990 levels. By 2010: reduce to 1990 levels By 2020: 10% below 1990 level Beyond: Reduce to non-threatening levels

Developing Options 52 Options Generated 49 Consensus 3 Non-consensus All options include estimated Carbon Saved, Cost of Saved Carbon, and Co-benefits

Contribution of Option Areas to GHG Savings vs. Baseline in 2020

Contribution of Options to GHG Savings vs. Baseline in 2020 “All Other” Measures Design 2000 Efficient Residential Cooling Tax Credits for Energy Efficiency Retrofit Program Efficient Lighting & Appliances Compact Floor Space Fuel Switching: Electric to Fossil Public Facilities Initiative Local Govt. Vehicle Fuel Efficiency Convert Croplands to Wetlands Solar Water Heating Low Input Agric Energy Star Homes Solar PV Cells Program Gas Air Conditioning

Net Economic Benefits and GHG Savings vs. Baseline

Rhode Island Greenhouse Gas Stakeholder Process: Developing and Implementing Prioritized Options: Select Accomplishments Fall 2002 – Summer 2005

Key RI GHG Accomplishments Renewable Portfolio Standard Law—16% of electricity demand supplied by renewable energy (wind, biomass, solar) by 2020. Appliance Standard Law State adopts California low emissions vehicle standards Governor requires all new state public buildings are energy efficient, and state vehicles are efficient or use alternative fuels

RI GHG Stakeholder Process Progress & Accomplishments

EPA Award On May 4, 2005, the U.S. Environmental Protection Agency gave the RI GHG Stakeholder Group its “Outstanding Climate Protection” Award in D.C.

Training - Customized Facilitation Training - (NEEP) Hydro-Re-licensing Collaborative Trainings - (FERC, Stakeholders) Telecom Mediation and Arbitration Trainings - (DC PUC) The Art of Contract Negotiation - (NISH) Using Consensus Building to Improve Environmental Regulation - (AK) Using Consensus Building to Improve Utility Regulation - (DOE, NARUC, PA PUC)

Web Tools Developed web site template with document management, scheduling, and list serv – use for virtually all our multi-stakeholder processes to improve project management Developed environmental websites for NEG/ECP with threaded discussion capability

Part II: Issues Related to the Practice of Consensus Building and Mediation in the United States

Facilitation vs. Mediation Facilitators run good meetings and assist with document and communication management. Mediators need the skills of facilitators plus need to assist parties in reaching agreements. These terms are often used interchangeably but probably should not be (often because agencies or stakeholders are more comfortable saying they are hiring a facilitator and don’t want to admit that there’s a problem)

Consensus Building vs. Consensus Seeking in Multi-Party Stakeholder Processes Types: Technical sessions, workshops, advisory groups Goal: Educate everyone on issues, understand other stakeholders’ perspectives, see where there are broad areas of agreement and disagreement. Consensus Seeking Types: Settlement negotiations, negotiated rulemakings Goal: Consensus building plus goal of actually reaching agreement

Mediation Qualifications Skilled mediator (training plus experience) Viewed as non-partisan (not necessarily without biases) Substantive knowledge (to understand negotiations and assist with collaborative problem solving) Willing to follow a code of mediation ethics (Probably only 1/3 or fewer of public sector mediators in the US are lawyers)

Mediation Rosters I am on numerous energy and environmental mediation rosters for federal and state agencies, and for electricity system operators in the US Panels provide vehicle to match clients and mediators, and easy contracting. However, often serve as barrier for new mediators when not updated frequently and applied to other disputes beyond initial criteria.

Role of Agencies Agencies usually serve as the conveners of public sector consensus building processes. Sometimes it’s multiple agencies working together. Agencies usually manage mediator and consultants. Agencies often have staff participate in processes to negotiate for agency. (However, those staff typically can not advise decision makers on the same case). Some agencies have their staff facilitate and mediate process rather than use outside expert (less expensive for parties but must be acceptable to parties and skilled).

Large Firms vs. Independents There are a couple of large dispute resolution firms (JAMS/Endispute), some medium sized firms working on public sector issues with 10-30 people (RESOLVE, Keystone, CBI), but mainly independent mediators working alone or with support staff. Independent mediators often team with other independent mediators or staff from medium sized firms, and technical consultants on larger projects.

Generating Business In my firm, over the last 10 years, my work has come from the following sources: 20% Rosters 40% Responding to Requests for Proposals from agencies or other entities 40% from Projects I helped Agencies or Stakeholders design and was then hired to facilitate/mediate