Statehouse Stalemate? Call a Mediator.
Facilitated talks can loosen political gridlock and reveal unexpected solutions.
"Why can't you politicians get along?" That's a question you usually hear while knocking on doors as a state legislator. But the curious fact is that legislators who battle ruthlessly for majority control are also increasingly advocating for cooperative problem-solving -- at least outside of the statehouse. Many states now mandate mediation of certain legal disputes, ranging from divorce to farm debts to land-use conflicts, and at least a third of the states have funded statewide-dispute resolution offices.
This kind of collaboration might not seem to be a good fit in the arena of legislative debate, but we experienced its effectiveness firsthand when we took part in facilitated dialogues on a policy question that had been snarled in the Minnesota legislature for years. The issue, ironically, was child custody -- an area where family courts use mediation as the tool of first resort. Minnesota is one of about 20 states that have been grappling with how courts should divide time with the kids when parents separate. Emotions run high in these debates, pressured by high divorce rates, changing parenting roles, and arguments about fairness to fathers and protection from domestic violence.
Minnesota's experiment in collaborative lawmaking did not look promising. While both of us are Democratic members of the Minnesota House, we had been fighting on opposites sides of the child-custody debate. Distrust and disdain ran deep in both directions. We'd never seen a professional facilitator step into the legislative process. House and Senate leaders assumed the dialogues were merely a ploy by one side to demonstrate the intransigence of the other.
Yet we ended up working with other warring stakeholders to co-author legislation that passed nearly unanimously this May. And we did it without anyone having to back down on their principles. The experience convinced us that mediated solutions have a place not only in the courts and in community-based governance projects but also in the legislature itself. We achieved far more through facilitated collaboration than we had been able to do as adversaries.
Child-custody reform in Minnesota was a classic case where the usual democratic process had worn thin and opponents had reached a stalemate. Rep. Mahoney's side was arguing for a bill that would have judges presume a nearly equal parenting time split (absent something serious such as domestic abuse). Rep. Laine and her allies wanted judges to retain discretion over complex family cases. Parenting-time legislation had been floated repeatedly throughout the past decade. Over the strenuous objections of one faction, the legislature finally passed a bill in 2012. Gov. Mark Dayton vetoed it. But he offered an olive branch, citing compelling arguments on both sides and calling for more collaboration across the divide.
With seemingly no overlap in our desired outcomes, the dialogue group did not want to go the way of negotiating a compromise that no one would ultimately support. Our facilitator's mission, instead, was to reveal and build on our common ground. She dug underneath contentious arguments to find principles that no one disagreed with, such as sensitivity to each family's needs and honoring the contribution of both parents.
Although differences and frictions persisted, the process built trust. In time we started to see group members advocating for the concerns of people they had previously fought. In this way the group finally hit on a shared solution to the parenting-time question. Instead of prescribing a 50/50 split, we overhauled the legal definition of a child's best interests. The benefit of maximizing time with both parents was added to the list of factors that judges weigh. In other words, we legislated the principles we shared rather than the positions we had contended.
Which other stubborn statehouse fights might respond to such an approach? Perhaps the most likely are those where legislators seem stalled but a respected outsider sees potential for detente. In our case, after the governor's veto, a former family law judge trusted by many stakeholders organized the dialogues and hired a facilitator skilled in handling deep controversy.
Policy questions evoking the near and dear, such as education reform, rent control and the perennial jobs-vs.-environment struggle, may be amenable to skilled facilitation. It's not unusual at the state level to see issues like child custody that aren't starkly partisan, and these are the lowest-hanging fruit.
Today's partisan maneuvering makes collaboration look quaint. But it is not a soft approach, and it can gain traction if legislators recognize that. Neither of us entered a facilitated dialogue because we were preparing to give up our positions -- quite the opposite. Had the dialogue failed, we knew we had the option to go back to fighting. Instead, we ended up with policy that hews to what's most important to both of us and that is likely to stick, thanks to its broad support.