Government Relations Insights

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Should I try to mediate my legislative dispute?

This insight will explore some of the issues involved in public policy mediations. In the typical public policy mediation, special interests have been battling over an issue for several years at the General Assembly. In order to reach a compromise, they hire a neutral mediator to negotiate a solution outside of session. This solution is then presented to the next General Assembly for enactment.

Are public policy mediations good or bad? Without a doubt, they are a good thing. Parties have the opportunity to develop a compromise that benefits both sides. Just as importantly, a complex issue receives the kind of careful and informed consideration that is impossible during the legislative session.

An example of a recent issue handled by public policy mediation is the workers compensation fee schedule. Participants included physicians, hospitals, employers, insurers, and attorneys. While the mediation itself was not successful, the parties did reach an amicable settlement the next year. This outcome is typical of many mediations. At first glance, they appear unsuccessful because the parties did not seal an agreement at the end of the process. But they succeed ultimately, usually during the next legislative cycle.

Public policy mediation has grown in popularity for the same reasons that traditional mediation has:
• More control over the outcome;
• More predictability; and
• Avoidance of worst case scenarios.

Public policy mediations are often triggered by legislators telling the stakeholders, “We’re sick of this fight. If you don’t work it out, we will . . . and you may not like what we come up with.” This implied threat is a key feature of successful mediations. In the absence of the threat, or “stick”, the parties will not be very motivated to make the necessary compromises. In the case of the workers comp fee schedule, there were clear messages from the Speaker of the House and other legislative leaders that the “usual and customary” standard for calculating medical fees had to change.

What should you watch out for? First, you must have the right people at the table. If a key stakeholder isn’t involved, it may derail passage of the compromise. Second, you must have a legislative champion who can get the compromise passed. Third, you should not have too many people at the table. If there are too many bodies, effective negotiation is impossible and participants tend to grandstand.